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Criminal Revision No. 74 of 1981, decided on 25th July, 1983.
-----S. 514/439‑Surety bond, forfeiture of‑Notice to surety ---Assistant Sessions Judge without first forfeiting surety bond directing notice to surety‑Order of Assistant Sessions Judge, held, erroneous and set aside‑Provisions of section 514, Cr. P. C., held further, mandatory and their non‑compliance operates prejudice to persons concerned.
Sarwar and another v. The State P L D 1965 Kar. 516 ; Willayar Hussain v. The State P L D 1967 Kar. 826 and Abdul Razzak v. The State P L D 1978 Kar. 579 rel.
‑‑‑S. 514/439‑-Surety bond, forfeiture of‑Notice to surety --Assistant Sessions Judge making no enquiry whatsoever as to reason for accused absenting himself from Court‑Conduct of Assistant Sessions Judge, held, not in compliance with law.
Muhammad Ali Shaikh for Appellant.
Ali Bux Laghari for the State.
Date of hearing: 25th July, 1983.
This is a Criminal Revision Application under section 435 read with section 439, Cr. P. C. (V of 1898) on hehalf of the applicant Ahmed son of Juman Brohi and it is directed against an order of the Assistant Sessions Judge, Thatta, (Mr. S. Hassan Shah Bukhari) dated 1st July, 1981 forfeiting the surety bond of the applicant and directing him to pay the surety amount of Rs. 10,000 under the said bond.
The facts giving raise to this matter are that this Court enlarged accused Maqsood on bail under section 307, P. P. C. read with section 324, P. P. C. in the sum of Rs. 10,000 to the satisfaction of the trial Court. The applicant named Ahmed executed surety bond in the sum of Rs. 10,000 with the condition to produce accused whenever requested by the Court and he himself appeared in the Court on 16th February, 1981. The accused remained absent from the Court without any intimation. On 16th February, 1981 the trial Court passed an order for non-bailable warrant and notice to applicant. The non‑bailable warrant of the accused was not served by the police as the whereabouts of the accused were not known and he was not traceable. The notice to applicant was issued which was served on him but he did not appear in the Court. Even after notice subsequently the bailable warrants were issued against the applicant on which he appeared applied for time to reply for the notice. The trial Court allowed him seven days time and again on 1st July, 1.981 applicant appeared and moved an application for allowing him one month to produce the accused but the time was not granted to him. The trial Court forfeited the bond of the applicant and he was directed to pay the surety amount.
It is against the impugned order the present Revision Application is directed. Mr. Muhammad Ali Shaikh, the learned Advocate for the applicant has raised two contentions. He has contested in the first place that the learned Assistant Sessions Judge, has failed to comply with the express provisions of section 514, Cr. P. C. by directing the issuance of notice to the surety without first forfeiting his surety bond. He has contended in the second place while imposing penalty the learned Judge has not taken into consideration the status of the applicant and the fact that the applicant had opted for accused on humanitarian ground and in the interest of the administration of justice.
Mr. Muhammad Ali Shaikh has cited three decisions on the points. In the case of Sarwar and another v. The State (P L D 1965 Kar. 516), in the case of Willayat Hussain v. The State (P L D 1967 Kar. 826) and in the case of Abdul Razzaq v. The State (P L D 1978 Kar. 579). In all these cases the orders were set aside as non‑compliance with procedure was considered to be an illegality and not merely an irregularity curable under section 547, Cr. P. C.
It is plain from a perusal of the language of section 5140), Cr. P. C. that it is incumbent on a Court to first declare the bond forfeited and to record the grounds for such a finding before calling upon the surety to pay the penalty thereof or to show cause why it should not be paid. Ink, this case the order of the learned Assistant Sessions Judge, dated 1st February, 1981 shows that notice to the surety was issued on 16th February, 1981 and that his bond was declared forfeited on 1st July, 1981. The learned Assistant Sessions Judge has clearly erred in this matter in directing the issuance of notice to the surety without first forfeiting his bond.
In the instant case, the learned Assistant Sessions Judge, Thatta, made no enquiry whatsoever as to reason for the accused Maqsood absenting himself from his Court on 16th February, 1981. In my view, this conduct of the Assistant Sessions Judge is not in strict compliance with the law as it stands.
Mr. Ali Bux Laghari Advocate, appearing on behalf of the State admits the position that no order was recorded by the Assistant Sessions Judge in respect of the forfeiture of the bond. Mr. Laghari has pointed out that one‑fifth amount be forfeited instead of the entire surety amount. However, the provisions of law contained in section 514, Cr. P. C. are mandatory and their non‑compliance clearly operates to the prejudice of persons concerned:
In this result, the impugned order, dated 1st July, 1981 is set aside. The Revision Application is allowed.
M. Y. H. Petition allowed.
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