Find a Lawyer

Criminal Revision Application No.37 of 1985, heard on 26th July, 1987.

--S.514--Surety bond, forfeiture of--Sessions Judge calling on surety to pay penalty without first forfeiting surety bond and issuing show-cause notice for imposing penalty--Accused for whom surety bond submitted stated to be seriously ill--Court granting time to surety from date to date for producing accused--Accused dying during this period--Non-appearance of accused being due to serious illness, order imposing penalty was set aside in circumstances.

Abdul Razzak v. The State P L D 1978 Kar.579 and Ahmed v. The State 1984 P Cr.L J 1573 ref.

Madad Ali Shah for Applicant.

Riaz Ahmed, A.-G. for the State.

Date of hearing: 26th July, 1987.

By this revision application the order of Sessions Judge Badin dated 24-6-1985 has been impugned.

'The order thus impugned reads as under:-----

"Heard the surety in person and the D.P.P. The accused/ appellant Noor Akbar remained absent from 19-9-1982. The death certificate of Noor Akbar produced on the record shows that he died on 19-4-1984. There is no explanation of absconsion of Noor Akbar the intervening period. Even the surety has admitted in his explanation at para No.2. That Noor Akbar had first absconded and then died. This the forfeiture of surety bond was proper and just after absconsion of before death of Noor Akbar. It cannot be contended now that the appellant Noor Akbar has died. The surety bond having been forfeited the surety is liable to pay the penalty of bond viz. Rs.7,000 and there appears no reason to reduce this amount. Accordingly the surety Abdul Ghafoor present in Court is ordered to pay the above amount on or before 16-7-1985."

It is contended that the learned Sessions Judge did not forfeit the bond as required by section 514(1), Cr.P.C. before issuing a show cause notice to the surety before calling upon him to pay the penalty. There is a chain of rulings on this point. The most important being the one in the case of Abdul Razzak v. The State (P L D 1978 Kar. 579) where Mushtaq Ali Kazi, J, observed as under:--

"Mr. Jalaluddin Baloch appearing on behalf of the Advocate- General admits the position that no orders were recorded by the Magistrate in respect of the forfeiture of the bond. In fact, when an application was made for copy of the record of forfeiture, it was remarked that such order was not in existence on the file. Mr. Jalaluddin Baloch has, however, pointed out that according to the views of Patna and Peshawar High Courts, omission to record an order of forfeiture was not considered fatal to the recovery of the amount from the surety. However, the provisions of law contained in section 514, Cr.P.C. are mandatory and their non-compliance clearly operates to the prejudice of the person concerned. The defect in observing the procedure cannot, therefore, be considered as a mere irregularity.

In the result, the impugned orders of learned Deputy Commissioner and Additional District Magistrate (South), Karachi as well as the Additional City Magistrate Court No.12, Karachi are set aside and it is directed that the amount if any, recovered from the sureties may be refunded."

Then there is another ruling on this point in the case of Ahmed v. The State reported in (1984 P Cr. L J 1573) where Mr. Justice Haider Ali Pirzada has held as under:---

"It is plain from a perusal of the language of section 514 (1), 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. In this case the order of the learned Assistant Sessions Judge, dated 1st February 1981 shows that notice to the surety was issued on 17th 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."

It is, therefore, clear that the order of the learned Sessions Judge calling upon the surety to pay the penalty or to show cause as to why the same should not be imposed is pre-mature as before doing so, the surety bond was not forfeited as required by subsection (2) of section 514, Cr.P.C. Apart from that accused Noor Akbar was stated to be seriously ill and the copies of the diaries produced by the appellant show that the learned trial Court was granting time to the surety from date to date for producing the accused till 5-5-1984 when it was brought to the notice of the Court that the accused Noor Akbar had died. Hence it was quite clear that the non-production of the accused on all these dates of hearing was obviously due to his serious ailment, as a result of which he died and therefore it was not proper for the learned trial Court to have penalised the surety who was making earnest efforts to, procure his attendance but could not succeed therein for the reason of serious ailment of the accused, which ended in his death. I, therefore, allow the revision petition and set aside the impugned order.

S . A . /A-156/ K Revision accepted.

Find a Lawyer Near You

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