Find a Lawyer

Criminal Miscellaneous No. 2994 of 1967, decided on 11th December 1967.

S. 40‑Person in compliance with directions of A. D. M. furnishing bond to keep peace and be of good behaviour for 3 years, later convicted for offence under S. 307, P. P. C.‑A. D. M. forfeiting bond and imposing penalty‑Meantime High Court declaring S. 40 as ultra vires and acquitting accused‑Continuance of proceedings for realisation of penalty‑Held, without justification as F. C. R. having been declared ultra vires, all actions taken thereunder were rendered null and void.

Malik Muhammad Usman v. The State etc. P L D 1965 Lah. 299 ref.

Ss. 40 & 43 and Criminal 'Procedure Code (V of 1898), S. 514‑Forfeiture of bond furnished under S. 40, F. C. R.‑Proceedings initiated under S. 514, Cr. P. C. and not S. 43, F. C. R.‑Held, null and void.

Sardar Muhammad Khan for Appellant.

Abdul Qayum Bhatti for A.‑G. for the State.

One Ghulam Murtaza Khan son of Muqarrab Khan, Pathan of Vandha Humayun Khel, Police Station Mochh, was ordered by the Additional District Magistrate. Mianwali on 13th April 1961 to furnish a bond in the sum of Rs. 30,000 each with two sureties, for keeping the peace and being of good behaviour for a period of three years. In compliance with this order, he furnished the requi site bond on 19th April 1961, with two sureties, one of whom was Kehr Khan petitioner. Subsequently, Ghulam Murtaza Khan was convicted for an offence under section 307, P. P. C. for having made a murderous assault on one Abdullah Khan on 8th January 1962. He was sentenced to undergo five years' R. I. plus a fine of Rs. 1,000 or further one year R. I. in default of payment thereof. On his conviction on 2nd June 1962 by the A. D. M., Mianwali, the police of Mochh Police Station moved for the forfeiture of the bond furnished by Ghulam Murtaza Khan and in the course of proceedings notices were issued to the two sureties including Mehr Khan petitioner who, after having been afforded an opportunity to lead evidence in defence, were directed by the A. D. M. to pay a penalty of Rs. 3,000 each vide his order dated 7th March 1963,

AL

2. Although Ghulam Murtaza Khan had unsuccessfully challenged the order of his conviction under section 307, P. P. C. before the Commissioner in appeal and before the Provincial Government in revision, he secured his acquittal by a windfall in consequence of the Full Bench judgment of this Court in Malik Muhammad Usman v. The State, etc. (P L D 1965 Lah. 229) whereby their Lordship declared section 40 of the F. C. R. as ultra vires being inconsistent with fundamental rights Nos. 1 and 15 of the Constitution. Nonetheless, however, proceedings for the realiza tion of the amount of penalty imposed on the petitioner and his co‑surety Ahmad continued. Feeling aggrieved, he has filed the present Criminal Miscellaneous No. 2994/1967.

3. Having called for a report from the A. D. M., Mianwali which being rather too sketchy was not helpful, I issued notice to the State and have heard the‑learned counsel on both sides.

4. The learned counsel for the petitioner has raised a two fold contention, firstly that the impugned proceedings were initiated by the A. D. M. for the forfeiture of the petitioner's bond as surety of Ghulam Murtaza Khan convicted under section 514, Cr. P. C. which is not applicable to bonds furnished under section 40 of the F. C. R. and secondly that in any case the F. C. R. having been declared null and void by a Full Bench of this Court all actions taken under that Regulation were automatically washed off including the conviction of Ghulam Murtaza Khan and the consequential forfeiture of the petitioner's bond under section 514, Cr. P. C.

5. The contentions raised by the learned counsel are well- founded and there appears no escape from the position that with the declaration of the F. C. R. as ultra vires of the Constitution, all actions taken under that Regulation would be ipso facto rendered null and void and even Ghulam Murtaza Khan the convict himself having failed in appeal and revision was released on that account. As such there is hardly any semblance of justification to continue proceedings against the petitioner or for that matter even his co‑surety Ahmad Lambardar. Even otherwise the order directing Ghulam Murtaza Khan to furnish a bond having been passed under section 40 of the F. C. R. proceedings for its forfeiture under section 514, Cr. P. C. were void ab initio, inasmuch as the aforesaid section only deals with the forfeiture of bonds furnished under the Code of Criminal Procedure. A similar provision under section 43 of the F. C. R. was available for initiating proceedings for for feiture of bonds furnished under section 40 of that Regulations which was not invoiced in the impugned proceedings, rendering them null and void on that score alone.

6. The upshot of the discussion is that the petition must succeed and accordingly proceedings against the petitioner are hereby quashed. The sum of Rs. 3,000 imposed on him as penalty, if already realized, may be refunded to him.

Petition accepted.s

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.