P L D 2017 Sindh 67
(a) Criminal Procedure Code (V of 1898)---
----Ss. 498, 499, 500 & 502---Release of accused on bail---Return of surety documents---Scope---Security offered by the surety was under process but he filed application for return of surety documents---Validity---Release of accused was subject to execution of bond by the accused himself or by one or more sureties to the satisfaction of court or police officer---Written declaration even on oath that one was ready/prepared to stand surety for an accused would not dress him up as 'surety' nor it would be sufficient for release of accused on bail---Release of accused on bail would be handing over the accused in the custody of surety under certain terms and conditions---Mere offer would create no liability upon its maker unless accepted and parties thereto proceeded further---Offer to stand surety should not only be accepted by the court but such agreement had to be followed by execution of bond---Such offer could not be taken as 'bond'---Satisfaction of court would include identification of surety and verification of his/her documents offered as security---Surety furnishing affidavit his role would commence from the acceptance of surety and execution of bond (offer) which, in the present case, had not been accepted by the court---Accused had not been handed over into the hands of surety in circumstances---Application for return of offered document could not be declined nor it could be withheld---Application for return of document was allowed in circumstances.
Ghulam Rasool v. Nusrat Rasool PLD 2008 SC 146 and Hakim Ali Zardari v. State PLD 1998 SC 1 rel.
(b) Words and phrases---
----'Bond'---Meaning
Black's Law Dictionary rel.
(c) Words and phrases---
---'Affidavit'---Meaning.
Black's Law Dictionary rel.
Shamshad Ali Qureshi for Applicant.
Abdullah Rajput, APG and Usman Tufail Shaikh for Respondent.
Date of hearing: 29th February, 2016.
P L D 2017 Sindh 67Before Salahuddin Panhwar, JAIJAZ-UL-HAQ---ApplicantVersusThe STATE---Respondent
ORDER
SALAHUDDIN PANHWAR, J.---Through instant application, applicant/surety seeks return of surety documents. Relevant facts are that Aijaz-ul-Haq was granted interim pre-arrest bail by order dated 20.12.2008 subject to furnishing surety of Rs.500,000/- to the satisfaction of the Nazir of this Court. Pursuant to that one Shamsul-Haq submitted surety; subsequently by order dated 06.05.2009 bail of accused was confirmed subject to deposit of bank guarantee in the sum of Rs.65,00,000/- including Rs.500,000/- already deposited, within two weeks and bail application was disposed-of. Endorsement dated 20.05.2009 by Nazir on order dated 05.05.2009, reflects that "no one turned up to furnish bank guarantee hence the case file is returned as per requisition slip dated 19.05.2009." Records further reflects that by order dated 26.05.2009 direction of substitution of surety in the shape of security was ordered. Endorsement of Nazir dated 06.08.2009 shows that "Security offered which is under process for verification."
2. Further, Order dated 30.06.2010 indicates that because of non-compliance interim order was recalled; and again by order dated 20.07.2010 bail dismissal order was recalled with direction to furnish surety within three days. Endorsement dated 29.07.2010 made by Nazir reflects that "Surety offered today on 29.07.2010 sent for verification and valuation." It appears that subsequently none appeared on behalf of applicant, meanwhile application for return of surety documents was submitted by applicant Liaquat Ali on the plea that although he submitted surety papers, same were verified but such process was not completed, bond was not executed hence surety papers are not required further.
3. Learned counsel for complainant contends that since applicant submitted property documents as surety on behalf of accused Aijaz-ul-Haq along with his affidavit containing therein that he is ready to furnish surety and would produce the accused on each and every date of hearing, contents of affidavit and bail bond as required under section 514, Cr.P.C., are same; applicant/surety was bound to produce the accused, thus surety is required to be attached. He has submitted photocopy of affidavit of surety as well as Surety bond along with copy of definitions of Bond and Affidavit provided in Black's Law Dictionary.
4. I have heard the respective counsel and have meticulously examined the available material and record.
5. At the very outset, I fell it quite appropriate to refer relevant provision(s) of Chapter XXIX of the Criminal Procedure Code as the same directly deal with the issue in hand.
498. Power to direct admission to bail or reduction of bail: The amount of every bond executed under this Chapter shall....., or that the bail required by a police officer or Magistrate be reduced.
499. Bond of accused and sureties:---(1) Before any person is released on bail or released on his own bond, a bond for such sum of money as the police officer or Court, as the case may be, thinks sufficient shall be executed by such person, and when he is released on bail by one or more sufficient sureties conditioned that such person shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise directed by the police officer or Court, as the case may be.
(2) If the case so requires, the bond shall also bind the person released on bail to appear when called upon at the High Court, Court of Session or other Court to answer the charge.
(emphasis supplied)
From the above, it is clear that release of an accused is subject to execution of bond by the accused himself or by one or more sufficient sureties to satisfaction of Court or Police Officer, as the case may be.
6. At this point, it is relevant to have a reference to meanings of terms 'bond' and 'affidavit' which per Black's Law Dictionary is:--
"Bond: …………….
A written obligation, made by owner of real property, to repay a loan under specific terms, usually accompanied by a mortgage placed on land as security.
A deed whereby the obligator obligates himself, his heirs, executors and administrators, to pay a certain sum of money to another at a day appointed."
"Affidavit:
A written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, taken before a person having authority to administer such oath or affirmation."
The above terms, in no way, could be taken as synonym to each other hence the term 'affidavit' cannot substitute the requirement of execution of bond.
7. A written declaration even on Oath to the effect that one is ready and ready/prepared to stand surety for an accused shall not dress him up as 'surety' nor shall it be sufficient for release of the accused on bail because such declaration shall continue the status of an 'offer' unless accepted by the Court, thereby allowing him (willing person to stand surety) to execute the requisite bond.
8. In other words, the release of an accused on bail, is a legal act of the Court whereby the custody is handed over to the surety under certain terms/conditions. Through such process the Court hands over the custody of accused to surety who (surety) agrees to take the custody of accused knowing that failure to abide by terms and conditions for such custody shall result into forfeiture of his bond. There can be no denial to the legal proposition that a mere offer creates no liabilities upon its maker unless accepted and parties thereto proceed further. A reference to the case of Gulam Rasool v. Nusrat Rasool (PLD 2008 SC 146), being helpful, is made wherein it is observed that:--
11. Be that as it may, a promise ripens into an agreement only after an offer is accepted but every promise is not necessarily an agreement. There is difference between the contract and a promise as a valid contract creates obligation and is capable of enforcement in law whereas a mere promise to render service or to hand over certain property immovable or movable to a person without any consideration may not create a contractual obligation to be enforced in law. It is thus.......The promise to perform certain act neither creates a contractual obligation nor a legal right and thus a promise in absence of essential terms of consideration may have no binding force and legal effect. The acceptance of a proposal may bring into existence a promise but to have an agreement it is essential that there should be consideration for promise without which the promise may not have the legal status of an agreement.
(Emphases supplied)
In matter of delivery of custody of accused into hands of surety, it shall always be necessary that not only an offer to stand surety by one is accepted by the Court, but such agreement is followed by execution of bond as has been insisted by Section 500 of the Criminal Procedure Code that:--
500. Discharge from custody: (1) As soon as the bond has been executed, the person for whose appearance it has been executed shall be released; and, when he is in jail, the Court admitting him to bail shall issue an order of release to the officer incharge of the jail and such officer on receipt of the order shall release him.
Further, if the principle of reading down is followed, it shall allow inclusion of provisions, relating to discharge of bonds (Section 502 Cr.P.C.) and even Chapter XLII (provisions as to bonds), including forfeiture of bond), for understanding and exploring the issue, in hand. At no place the legislature have left a room for an offer (even on Oath) to be taken as 'bond' which (execution of bond) is mandatory requirement for release of an accused on bail (delivery of custody into hands of surety).
9. Thus, it is pertinent that the Chapter XXIX and even Chapter XLII of the Criminal Procedure Code nowhere permits to hold any other person liable for jumping of the accused except the one who has executed a bond to satisfaction of the Court which (satisfaction) does include identification of person (surety) and verification of his/her documents, offered as security. A reference to the case of Hakim Ali Zardari v. State (PLD 1998 SC 1) wherein it has been observed:
'Said case was followed in the case of R.R. Chari v Emperor (AIR 1948 Allahabad 238) where it was observed as below:
'The language of section 499, Criminal Procedure Code makes it perfectly clear that what that section contemplates is the furnishing of a personal bond by the accused person and a bond by one or more sufficient sureties. The accused as well as the sureties have, therefore, to execute only bonds which are sufficient in the mind of the Magistrate for the amount which he might have fixed.
In the case of Rajaballam Singh (45 Cr.L.J 1944 and AIR 1943 Patna 375) it was further observed, that Chapter XXXIX of the Code of Criminal Procedure contemplates the execution of a bond with sureties and form of the bond is prescribed in Schedule V, Form No.42 of the Code.
According to section 497 of Cr. P.C a Criminal Court may order release of a person on bail, who is accused of any non-bailable offence, after his arrest or detention or on his ......any such construction. Entire emphasis of section 499 of Cr.P.C is on execution of a bond by the person being released on bail, and by his one or more sufficient sureties.'
It is a matter of record that accused was granted interim pre arrest bail by this Court; he was on bail but at subsequent stage bail was confirmed subject to enhancement of surety in addition to already furnished surety but due to non-compliance of final order such order was recalled. The record further shows that subsequently again dismissal order was set aside and applicant was directed to submit surety. In result of such last direction of this Court for furnishing surety, the present applicant/surety submitted his affidavit along with property documents whereby offering himself to stand as surety for accused, however, same were sent to verification without acceptance thereof or execution of bonds. No doubt affidavit was furnished by surety but the role of the surety was to commence from the acceptance of surety and execution of the bond which (offer) undisputedly has not been accepted by this Court. In nutshell till such time it was not accepted nor it resulted into execution of bond by applicant/surety hence there was no delivery of custody of accused into hands of surety within meaning of Section 502 of the Criminal Procedure Code. In absence thereof, the request of the present applicant/surety for return of his offered document cannot be declined nor it can be withheld on the plea that affidavit was filed. Accordingly, application is allowed. Offered surety documents shall be returned to the surety on proper identification.
ZC/A-74/Sindh Application allowe
0 Comments