1983 P Cr (PLP)

Sh. Muhammad Nazim for Appellant. Abu‑ul‑Fateh for A.‑G. for the State. Date of hearing : 27th July, 1983. This is an appeal from an order, dated 17th June, 1969, of Sh. Ihsanul Haque Sethi, the then Additional. Sessions Judge, Gujrat, passed under section 514, Cr. P. C. as Foreign Exchange Tribunal to forfeit the bail bond of the appellant surety.

2. The accused Muhammad Hussain for whom the appellant Gul Muhammad bad become a surety, failed to appear before the Tribunal in the course of trial. Consequently, a notice was given to him either to produce the accused before it or to show cause why his bail bond be not forfeited. Since the appellant could not arrange the production of the accused before the Tribunal, the impugned order was passed against him directing attachment of his property. It was sent to the District Magistrate for execution.

3. Aggrieved by it, the appellant preferred the present appeal. Counsel argued that the order was not complete inasmuch as it did not provide the amount of penalty which was an essential requirement of the provisions of section 514, Cr. P. C. According to him, without deter mining the penalty to be recovered, the execution of the warrant could not take place.

4. There was considerable force in the plea as mere issuance of warrant of attachment was quite vague. If actually the appellant's pro perty was attached, it had to be determined how much money was to be taken out of its sale‑proceeds. The nature of the proceedings was, like imposing fine and the same had to be expressed in terms of a liquidated amount for the purposes of recovery. It was a legal defect for which the order was rightly claimed to be inexecutable.

5. Mr. Muhammad Abu‑ul‑Fateh, counsel for the State, in reply, contended that the amount was mentioned in the bond and that the inten tion was to recover the whole of it.

6. I am afraid, the order in question being penal was supposed t have been complete in all respects. Any amount subject to the maximum, as demised in the bail bond, could have been forfeited but then it had to be specified. It was not necessary that forfeiture of the whole of it may have been ordered. It could be something lesser than the maximum as it was a matter of discretion with the learned Tribunal. There is no indica tion in this behalf in the relevant order. It being a criminal liability, an assumption may, not be made that the whole amount was forfeited. In fact, it should have been a speaking order. What instead it directed was only attachment of the property of the appellant. Obviously, the attach ment was made to realize the penalty which in its nature had to be a liqui dated amount. The order suffers from a patent lacuna.

7. The appeal is accepted and the order of the Tribunal in question is set aside. M.Y. H. Appeal accepted.