2003 PLP 396 (YLR)

Masoodur Rehman Tanoli for Petitioner. Muhammad Ayub Khan, Dy. A.‑G. for the State. Date of hearing: 25th October, 2002. Momin Shah son of Ghaffar Shah, a convict under section 514, Cr.P.C. through the instant petition from Jail has prayed for extension of benefit of section 382‑B, Cr.P.C.

2. The brief facts gathered from the record are that the petitioner alongwith another stood surety for accused Habibullah and Muhammad Sadiq, charged under sections 379/411, P.P.C. read with section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 vide F.I.R. No. 99, dated 12‑7‑1997 of Police Station, Hattar, District Haripur, in a sum of Rs. 80,000 each. At the trial, the accused failed to appear before the Court, therefore, they were declared absconders and notices under section 514, Cr.P.C. were issued to the petitioner and co‑surety by the learned Sessions Judge, Haripur. Consequently, the bail bonds furnished by the petitioner were forfeited to the extent of Rs.32,000 (i.e. 1/5th of the bail amount). Failure of the petitioner to deposit the forfeited amount, landed him in Central Jail, Haripur by virtue of order of the learned Sessions Judge, Haripur, dated 20‑12‑1999. The petitioner assailed the order of the learned Sessions Judge, Haripur in Criminal Revision No. 1 of 2000 before this Court. An application under section 426, Cr.P.C. was also moved by tote petitioner which was allowed and the execution of sentence was suspended. This Court vide order, dated 11‑5‑2001 directed the payment of the forfeited amount of Rs. 32,000 in six instalments of Rs. 5,000 per month starting from June, 2001 for the first five months‑and the last instalments of Rs.7,

000. It was also directed that in case of failure of the petitioner to deposit any of the instalments, he shall be proceeded in accordance with law. The petitioner again failed to deposit the forfeited amount, therefore, he was committed to Jail as convict prisoner on 28‑5‑2002. Hence, the present application.

3. The question before this Court was whether the benefit of section 382‑B, Cr.P.C. could be extended to the petitioner who has been lodged in Civil Jail, Haripur for default of payment of the forfeited amount under section 514, Cr.P.C. As the issue was of public importance, Mr. Masoodur Rehman Tanoli, Advocate has graciously assisted. The learned Deputy Advocate‑General on notice was also present.

4. Mr. Masoodur Rehman Tanoli, Advocate is of the view that any act or omission of a person is an offence if made punishable by any law for the time being in force as provided by section 4(o), Cr.P.C. and that the omission of the petitioner to deposit the forfeited amount being punishable under section 514, Cr.P.C amounts to an offence, therefore, the concession of section 382‑B, Cr.P.C. can be granted in this case. The learned D.A. G. has supported the view of the learned) counsel.

5. I am also persuaded to agree with the view of Mr. Masoodur Rehman Tanoli, Advocate. Any act or omission committed in violation of a law for the time being in force is an offence if it is made punishable by any statute. By furnishing bail bonds, the petitioner has undertaken to pay to the Government penalty, in case the accused failed to appear before the Court, under section 514, Cr.P.C. As it appears from the record that on failure of the accused to appear before the Court, the petitioner was repeatedly given chances to produce the accused before the Court which he did not. His failure to make available the accused before the Court has made him liable to pay the penalty and his further failure to pay the penalty has made him to be sent imprisonment in Civil Jail for six months Hence, the omission of the petitioner deposit the forfeited amount tantamounts an offence under section 514, Cr.P.C Section 382‑B, Cr.P.C. provides that where Court decides to pass a sentence imprisonment on an accused for an offence, it shall take into consideration the period, if any, during which such accused was detained in custody for such offence. As observed above, the petitioner before his committal to Jail on 28‑5‑2002 was detained in custody for some time in this case, therefore, I allow this petition and extend him the benefit of section 382‑B, Cr.P.C. The‑period spent by him in Jail in this case before 28-5‑2002‑shall be counted towards his substantive sentence of six months imposed on him for the default of payment of the forfeited amount of rupees thirty two thousand under section 514, Cr.P.C. H.B.T./651/P Petition allowed.