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Criminal Miscellaneous No. 4460 of 1968, heard on 25th May 1976.
‑‑ S. 40 read with Criminal Procedure Code (V of 1898), S. 514 Security bonds, forfeiture of‑Petitioner standing surety for accused, bound down under S. 40 of F. C. R. for keeping good behaviour Proceedings under S. 514, Cr. P. C. subsequently initiated against petitioner and his security bonds forfeited‑Contention that S. 40 of F. C. R. itself being ultra vires of fundamental rights any subsequent proceedings under S. 514, Cr. P. C. for its violation, were un founded‑Contention, held, correct.‑[Security bond, forfeiture of).
Mehar Khan v. The State 1968 P Cr. L J 398 and Malik Muhammad Usman v. The State P L D 1965 Lab. 229 ref.
Sardar Muhammad Akrarn for Petitioners.
Gul Muhammad Butt for the State.
Date of hearing : 25 May 1976.
Sardar Khan and Umar Hayat petitioners seek quashment of the proceedings taken against them under section 514, Cr. P. C. in the Court of Khan Mohammad Yousuf Khan, Magistrate Ist Class, Mianwali. By his order dated 25‑3‑1964, the Magistrate forfeited the bonds of the peti tioners and ordered them to pay a penalty of Ks. 5,000 each.
2. The facts of the case are that Sardar Khan petitioner‑accused was convicted under the Frontier Crime Regulations (III of 1901) by the A. D. M. Mianwali on the recommendations of the Council of Elders, and was sentenced to three years' R. I. under section 307/34, P. P. C. He was also convicted and sentenced to six months' R. I. under section 342, P. P. C. Sardar Khan petitioner‑accused was bound down under section 40 of the Frontier Crime Regulations and on 19‑2‑1961, he was ordered to furnish security in the sum of Rs. 20,000 along with one surety for his good behaviour for a period of three years. Umar Hayat petitioner stood surety for him. Later, proceedings under section 514, Cr. P. C. for forfeiture of the bond were initiated against the petitioners and by impugned order, their bonds were forfeited and a penalty of Rs. 5,000 each was imposed. Feeling aggrieved with this order, the petitioners went up in appeal b1fore the District Magistrate, Mianwali but did not succeed. A revision petition was made before the Commissioner which also failed. The matter was then taken up in second revision before the Home Secretary to the Government of West Pakistan and the following order was communicated to the petitioners :‑
"In view of the recent judgment of the High Court regarding the provisions contained in the Frontier Crimes Regulation, 1901, the revision petition on behalf of Sardar Khan and Umar Hayat Khan a5 specified above, stands abated and has been consigned to record."
In support Of this petition, learned counsel for the petitioners has placed reliance on Mehr Khan v. The State (1968 P Cr. L J 398). In the cited case, similar pro ceedings were drawn up against some persons which were held to be ultra vires in view of the decision of a Full Bench of this Court In re: Malik Mohammad Usman v. The State (P L D 1965 Lah. 229). In the cited case, it was hold that section 40 and other sections of the Frontier Crimes Regulation were inconsistent with the fundamental rights Nos. 1 and 45 of the Constitution, The facts of this case are identical to the one reported in Mehr Khan v. The State. In view of the principle laid down in the two cited cases, this petition succeeds and proceedings against the petitioners are quashed.
Petition allowed.
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