2022 Y L R Note 118
[Balochistan]
Before Naeem Akhtar Afghan and Rozi Khan Barrech, JJ
Syed BAKHTIAR AHMED---Petitioner
Versus
Rana MUHAMMAD OSAF and 2 others ---Respondents
Constitutional Petition No. 1249 of 2019,decided on 10th August, 2020.
(a) Criminal Procedure Code (V of 1898) ---
----S. 497--- Penal Code (XLV of 1860), S.489- F---Dishonestly issuing a cheque ---Bail---
Amount of surety bond ---Scope ---Respondent, in FIR under S.489- F, P.P.C., was granted
bail after arrest, subject to furnishing sur ety equivalent to the amount of dishonoured cheque -
--Respondent filed application for reduction of the surety amount, which was allowed and he
was directed to furnish cash surety of reduced amount ---Respondent, after his release, did not
deposit the remain ing surety amount ---Revisional court, through impugned order, set aside
the Trial Court's order for depositing the remaining surety amount ---Held; purpose of release
of accused on surety was to ensure his attendance on each and every date of hearing before
the Trial Court till conclusion of trial---Object of calling upon the accused for furnishing
surety was not to penalize him but to ensure his presence in Court, therefore, the amount of surety was required to be fixed with regard to nature of offence so t hat the very object of
granting of bail was not defeated---No illegality or irregularity was committed by the revisional court, in circumstances ---Constitutional petition was dismissed.
Laiq Ahmed v. The State 2011 YLR 75 rel.
(b) Penal Code (XLV of 1860)---
----S. 498- F---Criminal Procedure Code (V of 1898), S. 497---Dishonestly issuing a cheque --
-Bail---Amount of surety bond--- Scope ---Fixation of amount of surety equivalent to the
amount of dishonoured cheques cannot be applied as a matter of rule in all the cases.
Laiq Ahmed v. The State 2011 YLR 75 rel.
(c) Criminal Procedure Code (V of 1898) ---
----S. 497 ---Bail ---Amount of surety bond---Scope ---Amount of surety cannot be used to
penalize the applicant or deprive him from the concession of bail.
Manzoor Ahmed Kakar (absent) for Petitioner.
Date of hearing: 5th August, 2020.
ORDER
ROZI KHAN BARRECH, J .---The petitioner has invoked the constitutional
jurisdiction of this court under Article 199 of the Constitution of Islamic Republic of
Pakistan, 1973:
"It is, therefore, respectfully prayed that this Hon'ble court may kindly be pleased to: -
i. The impugned order dated 14.09.2019, passed by learned Additional Sessions Judge -VII, Quetta may kindly be declared as null and void.
ii. Restor ing the orders dated 21.08.2019, 02.08.2019, and 04.09.2019, passed by the
trial Court (Judicial Magistrate -I Quetta)
iii. Directing the respondent No.1 to comply with the orders of the trial Court by submitting the remaining surety.
iv. Any other relief , which may deem and fit by this Hon'ble Court may also be
awarded."
2. Brief facts of the case are that the petitioner lodged FIR No. 144/2018 for an offence
under Section 489- F, P.C. dated 22.10.2018 with Police Station City Quetta against
respondent No. 1. During course of investigation, respondent No.1 was arrested, who moved
an application for grant of post arrest bail before learned Judicial Magistrate- I Quetta (trial
court) and the same was granted subject to furnishing surety in the sum of Rs.50,00,000/ -
equivalent to amount of alleged cheque issued by respondent No.1 to the petitioner.
3. The respondent No. 1 did not arrange the surety amount of Rs.50,00,000/ - and filed
an application for reduction of surety amount and also requested for depositing c ash surety.
The application was allowed and respondent No.1 deposited cash amount of Rs.300,000/ -
with the trial court, where after the respondent No.1 was released on bail. Subsequently, on 02.08.2019, 21.08.2019 and 04.09.2019 the trial court directed the respondent No.1 to also submit personal surety of Rs.47,00,000/ - but the respondent No.1 failed to do so and filed a
revision petition before the learned Sessions Judge Quetta, which was transferred to the learned Additional Sessions Judge -VII Quetta (re visional court). After hearing the arguments
of the parties the revisional court set aside the order dated 21.08.2019, 02.09.2019 and 04.09.2019. Hence this petition.
4. On 5.08.2020 despite service and repeated calls counsel for the petitioner was not in
attendance and same was the position on 22.06.2020, 29.04.2020 and 02.01.2020.
Due to repeated non- appearance of learned counsel for the petitioner we were left
with no other option but to decide the petition on the basis of available record.
5. It may be observed that the allegation levelled against respondent No.1 is that he
issued a cheque of Rs.50,00,000/ -, which was dishonored. Respondent No.1 was arrested,
who filed an application for post arrest bail and the same was granted by the trial court on
16.05.2019 subject to furnishing surety amounting to Rs.50,00,000/ - equivalent to the
amount of dishonored cheque. Subsequently the respondent No.1 filed an application for
reduction of the surety amount, which was allowed and respondent No.1 was directed to
furnish cash surety of Rs.300,000/ -.
6. So far as the point of fixation of amount of surety equivalent to the amount of
dishonored cheques, we are of the humble view that the same cannot be applied as a matter of rules in all the cases. Even otherwise the amount of surety cannot be used to penalize the
applicant or deprive him from the concession of bail in appropriate cases. This dictum is laid down in the case titled as Laiq Ahmed v. The State reported in (2011 YLR 75), whereby it was held as under: --
"It is my view that if the trial Court in matters of bail relating to section 489 -F, P.P.C.
comes to the conclusion that the applicant is entitled to the grant of bail, then while granting bail the surety amount as a rule of thumb should not be equivalent t o the
dishonoured cheque; but should be reasonable and in accordance with the facts and circumstances of each case, so that the very object of granting bail should not be defeated. Even in the matter of Negotiable Instruments under Order XXXVII, C.P.C. and Financial Institutions (Recovery of Finances) Ordinance, 2001, the Courts have
discretion either to dismiss or to grant leave to defend application of the defendant, with or without surety/security being taken into consideration the nature and facts of the case".
7. Moreover, the purpose of release of accused on surety is to ensure his attendance on
each and every date of hearing before the trial Court till conclusion of trial and the person who stands surety executes surety bond in the required sum or money with undertaking to
produce the accused on each and every date of hearing. Provisions of section 499, Cr.P.C. provide complete mechanism for securing the presence of the accused before a Court or before police officers including the consequences of non- appearance. The object of calling
upon the accused for furnishing surety is not to penalize them but to ensure their presence in Court, therefore, the amount of surety must be fixed with regard to nature of offence so that every object of granting of bail is not defeated and the applicant may not suffer agony of jail
unnecessarily for the reasons beyond his control.
In view of the above discussion, no illegality or irregularity whatsoever has been
committed by the revisional court, ther efore, the instant petition being devoid of merits is
dismissed in limine.
SA/223/Bal. Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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