IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Crl. Misc. Application No. D- 13 of 2021

Present:

Mr. Justice Muhammad Saleem Jessar &

Mr. Justice Abdul Mobeen Lakho.

1. For Orders on office objection.

2. For hearing of main case

14-09-2022.

Mr. Abdul Baqi Jan Kakar, advocate for applicant/son of surety.

Mr. Mohsin Ali Khan, Special Prosecutor ANF.

O R D E R.

Muhammad Saleem Jessar, J. Through this application, the applicant/son of surety Feroze Ahmed Lashari assailed the order dated 11-01-2021 passed by learned III-Additional Sessions Judge/Special Judge for CNSA (MCTC), Sukkur, (the trial Court) whereby the application moved by him for restoration of surety documents, which his father deposited before the trail Court in Special Case No. 09/2012 bearing Crime No. 03/2012 of Police Station ANF Sukkur u/c 9 CNSA 1997 “Re. State Vs. Durrani Khan and others whereby one Hino Truck of red colour Model 1994 bearing registration No.SEA-787, chassis No. 19987, engine No. 11036 was restored to its owner Khudai Dad on superdari basis through order dated 02-04-2012, therefore the surety/father of applicant came forward and executed bond on behalf of owner Khudai Dad before the trial Court and consequently the Truck in question was restored to its owner on superdari basis in terms of section 516-A Cr.P.C. Meanwhile the case “Special Case No. 09/2012” was proceeded and accused Durrani Khan was found guilty of the charge, therefore, he was convicted and sentenced to undergo for one year and nine months with fine of Rs. 13000/- or in default whereof, he was further directed to undergo S.I for four months more vide judgment dated 24-07-2019. After grant of application u/s 516-A Cr.P.C filed by the owner, the Truck in question was released/restored to its owner and subsequently, again the said Truck was booked under Crime No. 09/2012, u/s 9 CNSA, 1997, registered at Police Station ANF Sukkur.

2. Learned counsel for the applicant/son of surety submits that job of the father of the applicant was to produce the Truck in question before the trial Court in Special Case No. 01/2012 as and when summoned; however, till final decision of main case, no notice was issued to him, the matter concluded in conviction of accused Durrani Khan, therefore surety furnished as well as bond executed by the father of applicant had served its purpose and was no longer required by the trial Court. Therefore dismissal of application regarding release of surety documents was not warranted by law. As far as subsequent involvement of Truck in question in another Crime, the father of applicant is not responsible as the custody of Truck in question was given to its owner and owner himself is the person who has to face the consequences of subsequent crime, he therefore, submits that by granting this application, set-aside the impugned order dated 11-01-2021 and directions may be issued to trial Court to release the surety documents to the applicant being son of surety.

3. On the other hand, learned Special Prosecutor ANF opposes the application on the ground that it was prime duty of the father of applicant/surety to produce the Truck in question on each and every date of hearing before the trial Court, which he failed, subsequently it was booked in another crime, therefore, surety documents furnished as well as bond executed by the father of the applicant are liable to be forfeited. He however, could not controvert the fact that no notice was issued to the surety regarding failure of owner to produce the Truck before the trial Court and specific order has been passed by the trial Court under the judgment dated 24-07-2019 regarding forfeiture of the bond executed by the father of the applicant. He; however, admits that surety/father of the applicant was unaware about subsequently involvement of the Truck in question in another crime as no notice was issued to him by the trial Court.

4. Heard arguments, perused the record.

5. Admittedly, the truck in question was involved in Crime No. 03/2012 “Special Case No. 09/2012” and during the pendency of the case, the owner namely Khudai Dad filed an application u/s 516-A Cr.P.C which by means of order dated 02-04-2012 was allowed and custody of the Truck in question was handed over to its owner on superdari basis subject to furnishing surety in the sum of Rs. 500,00/- (five lac), therefore, the father of applicant/surety came forward and file proper documents. Subsequently the case was tried and ended in conviction of the accused Durrani Khan. No where under the judgment it is mentioned that the trial Court has issued notice regarding failure of the production of the Truck in question before the trial Court, by its owner, even no proceedings u/s 514 Cr.P.C were initiated, therefore, the father of applicant/surety had fulfilled the job in terms of bond, which he had executed in compliance of order dated 02-04-2012, therefore, non-release of surety documents deposited by the father of the applicant before the trial Court seems to be unjustified.

6. As far as involvement of the Truck in question in another crime is concerned, the surety/father of the applicant has no nexus or involvement as it was sole responsibility of the owner of Truck who has got released the truck on superdari, therefore dismissal of application filed by the applicant was also not warranted by law. Accordingly and in view of above, we are of the opinion that trial Court has erred while declining the application filed by the applicant/surety. Accordingly the instant application is hereby allowed. Consequently, the impugned order dated 11-01-2021 passed by learned III-Additional Sessions Judge/CNSA (MCTC) Sukkur is hereby set-aside. Resultantly the application filed by the applicant/son of surety before the trial Court seeking release of surety documents shall be deemed to be allowed as prayed. Therefore, the trial Court is hereby directed to release the surety documents to the applicant/son of surety upon receipt of this order after proper verification, identification and as per rules.

7. Instant Special Crl. Misc. Application is hereby disposed off in the terms stated above. JUDGE

JUDGE

Sukkur

Dated 14-09-2022.

Nasim/P.A