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Criminal Revision Application No. 357 of 1965, decided on 3rd October 1966.

S. 514‑Forfeiture of bond condition precedent before surety can be called upon to show cause or make payment‑Court issuing notice to surety without first forfeiting bond‑Procedure illegal‑Even after issue of notice to surety Court must be satisfied that cause shown was not sufficient before surety can be asked to make payment.

Rustam Ali Mia v. The State P L D 1957 Dacca 467 ; Ghulam Haider v. Karim Bakhsh P L D 1963 S C 46 and Sanwan v: The State P L D 1965 Kar. 516 ref.

Amir Ahmad Khan for Petitioner.

Nooruddin Sarki for the State.

Date of hearing : 21st September 1966.

This is a criminal revision application by Wilayat Hussain (surety) and is directed against an order of the Special Judge (Central), Karachi, dated 9‑8‑65 forfeiting his surety bond and directing the applicant to pay Rs. 10,000 within a week.

2. Facts giving rise to this application are that applicant was accepted as surety for accused Sabir Hussain on 4‑6‑15 in Case No. 8/64 (State v. Abdul Hakim and others) and he had undertaken to produce him on every date of hearing. But Sabir Hussain repined absent on 17‑7‑65 with the result that the following order was passed by the learned Special Judge :

"17‑7‑65. Accused persona excepting one Sabir Hussain present on bail. Issue NBW against Sabir Hussain and notice to his surety to show cause on 28‑7‑65 . . . . ."

Accused Sabir Hussain continued to remain absent on two more dates of hearing, viz. 28‑7‑65 and 4‑8‑65 and thereafter the matter was fixed for hearing, on 9‑8‑65 when the applicant surety filed an application requesting for a month's time for the production of accused Sabir Hussain. His request was rejected and the impugned order was passed on that very day and it reads as follows:‑‑

"Rejected. The surety has failed to produce the accused on 17‑7‑65, 28/7, 4/8. No explanation is forthcoming for his absence. The surety by giving bail has been instrumental in the accused escaping justice. The absence of the accused has caused breach of the terms 9f the bond executed by the surety. Hence the bond is forfeited. The surety shall pay Rs. 10,000 within a week."

Case diaries of 28‑7‑65 and 4‑8‑65 also appear relevant for our purpose and these reads as follows:

"28‑7‑65. Accused Sabir Hussain absent. Notice and NBW returned unserved. Repeat the same process for service.

4‑8‑65. Accused Sabir Hussain is absent. His surety Wilayat Hussain is present and requests for time. He is allowed till 9‑8‑65 to produce the accused NB W issued the accused returned unserved. Ask the C. I. A. Police to intimate to the Court whether this accused has been arrested in another case by the C. I. A. Police Railway Samarsatta."

The order passed by the learned special Judge on 9‑8‑65 is recorded in the case diary of the same date. Surety has paid this amount of Rs. 10,000 as it is evident from the case diary dated 18‑11‑65.

3. The main contention of the applicant is that the provisions of section 514, Cr. P. C. have not been correctly followed by the learned Special Judge and this view appears to be correct. Perusal of the provisions of this section shows that three stages are contemplated for a proceeding under this section. Firstly a declaration of forfeiture, secondly the order for payment or to show cause, and thirdly steps be taken for the recovery of the amount. The declaration of forfeiture must be proved upon cogent grounds establishing, to the satisfaction of the Court, that the forfeiture has taken place. The Code further insists that not only such grounds must exist but that the Court should also record such grounds. Again, if the notice to show cause had been issued the Court must further be satisfied that the cause shown is not sufficient before it can proceed to take steps to recover it. The words "whenever it is proved to the satisfaction of the Court" means that such satisfaction must be grounded upon some cogent evidence. This view is taken in a case reported in Rustam Ali Mia v. The State (P L D 1957 Dacca 467). I was also referred to another case reported in, Ghulam Haider v. Karim Bakhsh (P L D 1963 S C 46). This case refers to various factors which must be taken into consideration before action is taken by any Court under section 514, Cr. P. C. The applicant has also taken aid of a case decided by this Court and it is reported in Sanwan v. The State (P L D 1965 Kar. 516). It lays down that the Court must first declare the bond forfeited and record grounds for such finding before notice is issued to his surety. Issue of notice to surety without first forfeiting his bond has been disapproved with the result that order of forfeiture was set aside. In this particular case when accused Sabir Hussain remained absent for the first time on 17‑7‑65 the bail bonds were not forfeited but a notice was issued to the applicant‑surety. I find that on the same day, via. 17‑7‑65 an application was filed by the wife of accused Sabir Hussain stating that her husband namely, accused Sabir Hussain has been arrested by C.I.A. Lahore at Karachi. This application was produced before the learned Special Judge on the same date and his order reads as follows:

" NBW against accused Sabir. Notice to surety for Wednesday 28/7."

It is thus evident that the learned Special Judge even after he was informed about the arrest of accused Sabir Ali by C. I. A. Police Lahore: at Karachi he took no steps to find the veracity of this application. Under these circumstances he was bound to hold an inquiry and find out if accused Sabir Hussain had really been arrested and if so when. Instead of making such an inquiry the learned Special Judge issued notice to the surety. I also find that the applicant‑surety had filed one more application before the learned Special Judge on 20-9-65 and the order passed by him reads as follows:

"Heard applicant. Default has been made and the applicant assisted a crook to escape. Rejected."

I would also refer to the application dated 26‑9‑65 addressed the Special Judge, Karachi by accused Sabir Hussain through jail authorities. It recites that he had been arrested by police and was sent to Lahore. Even after this application was received, the learned Special Judge made no inquiry in this matter about its contents but rejected the application of the surety for re‑consideration. I am therefore, in full agreement with the applicant‑surety that proper procedure as laid down under section 514, Cr. P. C. has not been followed and therefore the order dated 9‑8‑65 is set aside. This order will not debar the Special Judge, Karachi from holding an inquiry at this stage. In the meantime the amount of Rs. 10,000 deposited by the surety‑applicant be returned to him.

K. B. A.

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