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Petitioner: TAJ MIR VS Respondent: StateHonorable Justice Shah Jehan KhanAftab Khan and M. Ali,Abdul Rauf Gandapur
2006 P Cr
2006 P Cr. L J 1299
[Peshawar]
Before Shah Jehan Khan, J
TAJ MIR and 2 others----Petitioners
Versus
THE STATE----Respondent
Criminal Miscellaneous No.110 with Criminal Revision No.38 of 2006, decided on 24th April, 2006.
(a) Criminal Procedure Code (V of 1898)---
----Ss. 514, 498 & 439---Penal Code (XLV of 1860), Ss.302, 324 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---West Pakistan Arms Ordinance (XX of 1965), S.13---Ad interim bail---Non-appearance of accused---Forfeiture of bonds of sureties and testifier---Petitioners stood sureties for two accused and other petitioner attested bail bonds as testifier in ad interim bail granted to accused---Accused did not turn up for confirmation of bail and ad interim bail was recalled and bail bonds of petitioners/sureties as well as of testifier, were confiscated---Validity---Proceedings for pre-arrest bail was not a `case' and ad interim order was a temporary relief against the arrest in a particular case, till perusal of record and after requisitioning to order either to confirm or recall ad interim order---For non-appearance of an accused, who was allowed ad interim pre-arrest bail, no action under 5.514, Cr.P.C. could be initiated against sureties because accused had an option either to surrender before the law and face the charge to defend himself or to abscond---If before confirmation of bail granting order accused opted to abscond it would be considered as a circumstance/corroborative evidence towards his guilt---Contents of bail bonds revealed that sureties would be liable for confiscation of bail amount, if accused disappeared when summoned by the Court in the 'case'-No mention of subjecting themselves for producing accused for confirmation of bail was found therein---Trial Court, had wrongly penalized petitioners/sureties and testifier for forfeiture of bail bonds because they stood sureties for appearance of accused when summoned by the Court to face the charge/trial, but when accused opted to disappear and without commencement of process in the Court regarding the charge, no action under S.514, Cr.P.C. could be initiated against sureties and action against testifier could only be taken, if sureties were found to be having no means---After impugned order accused for whom petitioners stood sureties, not only surrendered before the Court, but they were also granted acquittal---Allowing revision, impugned order was set aside by the High Court.
(b) Words and phrases---
----`Ad interim', defined and explained.
Aftab Khan and M. Ali for Petitioners.
Abdul Rauf Gandapur for the State.
Date of hearing: 24th April, 2006.
JUDGMENT
SHAH JEHAN KHAN, J.--- This revision petition is directed against the order of Judge, Anti-Terrorism Court, Mardan dated 18-2-2006 whereby the bail bonds in response to ad interim bail order of the petitioners as sureties and testifier was forfeited to the extent of Rs.40,000, Rs.60,000 and Rs.20,000 from petitioners 1 to 3 respectively.
2. Facts in brief are that petitioners 1 and 2 stood sureties for two accused in sum of Rs.2,00,000 (Rupees two lacs) by each of them and the petitioner No.3 attested the bail bonds as testifier in the ad interim bail granted to the accused. The accused did not turn up for confirmation of the bail and thus, the ad interim bail was recalled and the bail bonds of the petitioners as well as testifier were confiscated to the tune mentioned above.
3. I heard the learned counsel for petitioner and the State Counsel, also perused the record.
4. The word ad interim is defined in . various 'dictionaries as follows:--
"Law Lexicon" Ad interim. --- In the meanwhile.
"Chambers Twentieth Century Dictionary"
Ad interim. --- for the meantime.
"A manual of Legal Maxims"
Ad interim. --- In the meantime; temporary.
"Oxford Talking Dictionary"
An interim. --- (L, ad to + interim adv. `meanwhile' used as n.) for the meantime.
The undertaking of the sureties read as follows:
The proceedings for pre-arrest bail is not a case, and the ad interim order is a temporary relief against the arrest in a particular case. Till perusal of record and after requisitioning to order either to confirm or recall the ad interim order.
5. The learned State Counsel was passed with a query as to whether non-appearance of accused for confirmation of ad interim bail would ,invite an action against the sureties and testifier under section 514, Cr.P.C. The learned State Counsel frankly conceded that for non-appearance of an accused who is allowed ad interim pre-arrest bail no action under section 514, Cr.P.C. could be initiated against the sureties because the accused had an option either to surrender before the law and face the charge to defend himself or to abscond. If before confirmation of the bail granting order the accused opted to abscond it shall be considered as a circumstance/corroborative evidence towards his guilt. From the contents of bail bonds, it is evident to show that the sureties shall be liable for confiscation of the bail amount if the accused disappeared when summoned by the Court in the case. There is no mention of subjecting themselves for producing the accused for confirmation of the bail. The wording of section 514, Cr.P.C. are to the effect that whenever it is proved to the satisfaction of the Court which has obtained a bond under the Code of Criminal Procedure or a bond for appearance before a Court and such bond has been forfeited the sureties shall be penalized or shall be called upon to show cause that why the bail amount should not be recovered from them. Seeking pre-arrest bail is the sweet will of an accused who opted to surrender before the Court and ad interim bail does not confer absolute right on the accused to remain on bail as the same could be recalled after examining the record of the case. Bail may be sought at any time after registration of the case or when an accused is taken into custody. Bail can be allowed before taking cognizance of the case. Case starts only when challan is submitted and accused is summoned to face the charge before commencement of trial. Thus, the word "appearance before the Court" refers to the trial Court and not a Court which has obtained the bond for appearance before the commencement of the trial or taking cognizance in the matter. If an accused fails to appear before the Court for confirmation of the ad interim bail and opted to abscond his prayer for bail would be dismissed and the accused shall face the adverse affect of absconding and if the interim bail is confirmed the bond already undertaken shall remain effective for an action under section 514, Cr.P.C.
6. In the wake of the aforesaid discussion I found that the Judge, Ant-Terrorism Court, Mardan has wrongly penalized the petitioners for forfeiture of the bail bonds because they stood sureties for appearance of the accused when summoned by the Court to face the charge/trial, but when the accused opted to disappear and without commencement of process in the Court regarding the charge no action under section 514, Cr.P.C. could be initiated against the sureties and the action against testifier could only be taken if the sureties are found meansless, but if the sureties are holding sufficient amounts to pay the bail amount no action of forfeiture or penalty could be imposed on testifier.. It is stated at the bar that after the impugned order the accused for whom petitioners 1 and 2 stood sureties not only surrendered before the Court but they were also granted acquittal.
7. In view of the aforesaid admitted position I allow this revision petition though it is fixed today for hearing in motion and notice has only been issued to the State for suspension of the impugned order, and set aside the impugned order, dated 18-2-2006.
H.B.T./105/P?????????????????????????????????????????????????????????????????????????????????????? Revision allowed.