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Criminal Miscellaneous No. 603 of 1982, decided on 24th August, 1982.

---Ss. 499 & 501--Surety--Surety bond accepted by trial-judge in first instance and petitioners released from custody but later on sent to judicial custody on allegation of insufficient and bogus surety and directing them to submit fresh solvent surety--Mistake, however, occurring due to wrong filing of form by Advocate, giving wrong description of property owned by surety--Order of trial Judge, held, passed on wrong premises and as such not sustainable, in circumstances--Order set aside.

Ch. Muhammad Yaseen for Petitioners.

M. I. Memon, Addl. A. G. for the State.

Date of hearing: 24th August, 1982.

This revision application has been filed against the order of the VIth Additional Session Judge, Karachi before whom Sessions Case No. 25/79 is pending, cancelling the bail furnished by the applicants on the ground of insufficient and bogus surety and remanding them to custody.

The applicants were ordered to be released on bail by this Court in Criminal Bail No. 74/82 on furnishing surety in the sum of Rs. 25,000 each to the satisfaction of the trial Court, which is Court of VIth Additional Sessions Judge. Karachi. The Court accepted Mst. Ameena widow of Muhammad Anwar as surety on her submitting documents in respect of Plot No. N-46/2 measuring 80 Square Yds. Mooria Khan Goth, Chota Gate near Airport Railway Station main Road Shahra-e-Faisal, Karachi.

After the release of the applicants they remained on bail and were attending the Court proceedings on the dates fixed.

It is a case on behalf of the applicants that on 3rd July, 1982 when they appeared before the Court for trial, they were sent back to judicial custody and the aforesaid order was passed without giving them any notice allegedly on the application moved by the widow of the deceased in the case against them alleging that the surety was bogus and not solvent.

I have heard Mr. Ch. Muhammad Yaseen, Advocate for the applicant and Mr. M.1. Memon, Additional Advocate-General for the State. I have also perused the record with regard to the acceptance of surety by the VIth Additional Sessions Judge, Karachi in the first instance and the impugned order to the effect that the learned Judge is satisfied that the accused had been released on insufficient and bogus surety and directing them to submit fresh solvent surety failing which they would be sent to judicial custody. The original bail bond executed by Mst. Ameena Khatoon shows the property of surety to be No. 1 /482, Drigh Colony, Karachi whereas the lease deed filed in respect of immovable property is in respect of Plot No. 46/2-C admeasuring 80 Sq. yards in Survey No. 164 Deh Safuran, Tapo Sungal, Taluka Karachi East. The aforesaid lease deed was produced admittedly by Mst. Ameena Khatoon and it is apparent from perusal of record that through the mistake of the Advocate who filled in the specification of the property owned by the surety instead of the aforesaid property in respect of which the lease deed was produced the: place of residence of the surety Mst. Ameena Khatoon was mentioned.

Since the bail was granted by this Court on surety being furnished to the satisfaction of the trial Court under provision of section 499, Cr.P.C. before the applicants were released on bail it was the duty of the Court to consider the sufficiency of the bond executed by the surety and under section 501 of the Criminal Procedure Code if the Court considered that through mistake, fraud or otherwise insufficient surety has been accepted, the Court could order the persons to file sufficient surety and on their failing to do so to send them to jail. It is apparent that the learned VIth Additional Sessions Judge after getting petition of Anwari Begum widow of deceased Ebrahim made enquiry in respect of property bearing No. 1/482 taking it to be the property on the basis of which Mst. Ameena had stood as surety and on getting report that the aforesaid property did not belong to the surety directed the applicants to furnish fresh solvent surety and ultimately remanded them to judicial custody.

Mr. M. I. Memon learned Additional Advocate-General has pointed out that the mistake really occurred due to the wrong filing of the form by the Advocate as already pointed out and it is apparent that the learned VIth Additional Sessions Judge failed to look into the lease deed of immovable property which was furnished by the surety in which the correct identity of the property is given. The mistake occurred by non -perusal of the bond and the documents filed therewith on the part of the learned VIth Additional Sessions Judge. The impugned order, therefore, cannot be sustained and it is obvious that it was passed on wrong premises. The same is set aside and it is hereby ordered that on the basis of the surety already furnished the applicants should be released on the surety executing rectified bond in respect of the property in respect of which the lease deed was furnished as security.

The application is allowed accordingly.

S.G.D. Application allowed.

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