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Criminal Revision No.109 of 1982, decided on 6th March, 1983.

---Ss. 497/498/439 a 514--Bail--Cancellation for default--Forfeiture of surety bond--Accused granted bail but was kidnapped and consequently remained absent from trial Court on date of appearance--Surety producing certificate from Chairman, of Union Council that accused was got released after date of appearance when he surrendered and explained his position--Order of trial Court requiring surety to deposit penalty, held, not legally sustainable as trial Court failed to apply- its mind to material brought on record by surety as well as accused.

Ahmad Khan Barkzai for Petitioner.

Imam Bux for the State.

Date of hearing: 28th February, 1983.

Applicant abovenamed, being aggrieved by order, dated 3-10-1982 passed in Sessions Case No.202/74, by which applicant/surety has been directed to deposit Rs.15,000 as penalty, on account of the fact, that accused Moula Bux had remained absent from 3-4-1982 upto 2-8-1982 and consequently his bail was cancelled and bail bond executed by applicant surety was forfeited, has preferred the above petition on the facts and grounds mentioned in the above petition.

The learned Advocate for the applicant was called absent and since there was no adjournment application and/or request for adjournment, I proceeded to hear the above petition, with the assistance of the learned Advocate for the State.

The learned Advocate for the State, at the outset submitted, that he was supporting the above petition, as applicant surety had produced certificate from Chairman Union Council Bhagban to show, that accused Moula Bux was abducted and was released on 3-10-1982, when he surrendered before the learned trial Court and explained his absence from 3-4-1982, but in spite of this the learned trial Court without considering this explanation submitted by applicant surety as well as by accused Maula Bux, by its order, dated 3rd October, 1982 on the around, that no valid proof of such abduction was furnished in spite of certificate of the Chairman Union Council, Baghban, which was produced before the learned trial Court.

I have carefully considered the above submissions of the learned Advocate for the State and have gone through the certificate Annexure 'C' in question. It is clear from this certificate, that accused Moula Bux A was abducted on 10-4-1982 and consequently he remained absent from the learned trial Court upto 3-10-1982. In view of this, the order dated 3-10-1982 of the learned trial Court cannot legally be sustained.

Therefore, I allow the above petition and set aside impugned order I dated 3-10-1982 of the learned trial Court, as the same is contrary to the provisions of section 514, Cr.P.C., in view of the certificate of the Chairman Union Council Baghban, which was produced by the applicant surety before the learned trial Court, alongwith his explanation, and as such cannot be legally sustained, as learned trial Court failed to apply its mind to material, which was brought on record, both by applicant surety as well as accused Moula Bux on 3-10-1982, on his surrender.

M.Y.H. Petition allowed.

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