2020 PLP 876 (MLD)

MUJAHID MUSTAQEEM AHMED, J.

By filing this petition, petitioner has assailed the legality and propriety of orders dated 26.11.2019 and 16.1.2020 passed by the learned Additional Sessions Judge, Bhalwal whereby present petitioner surety of Muhammad Khan accused of case F.I.R. No.468 dated 26.07.2017 under sections 365-B/ 376, P.P.C. registered at Police Station Bhalwal City, District Sargodha, on absence of said accused during trial, was imposed full penalty of Rs.2,00,000/-, and due to non-payment of penalty amount, was taken into custody and sent to jail to undergo imprisonment for six months and his review petition was dismissed, respectively.

2. Notice to the State. At this stage, learned D.P.G. has accepted notice on behalf of the State.

3. Since question of liberty of petitioner (allegedly) curtailed in violation of procedure laid down in the Criminal Procedure Code, 1898 has been raised, as such the instant petition is being decided on merits, on the basis of available record.

4. Learned counsel for the petitioner has maintained that on 26.11.2019, the petitioner in response to the proceedings taken in terms of Section 514 Cr.P.C. appeared before the learned trial court and learned trial court issued show cause notice to him to the effect that "why amount of bond be not forfeited in favour of the State". However without affording reasonable opportunity to the petitioner to submit reply of such notice learned trial court on the same day ordered for recovery of full penalty amount from the petitioner. In this background it has been argued that petitioner was not afforded right of fair trial/hearing and without observing due process of law, the learned trial Court proceeded against the petitioner which is in violation of fundamental rights guaranteed to the citizens of the State by the Constitution of Islamic Republic of Pakistan, 1973 (the Constitution) and as such impugned order being violative of principles of natural justice and the procedure laid down in Section 514 Cr.P.C are not sustainable. In support of the contention reliance has been placed on cases "Mir Ehsan Mehmood v. The State" (2008 MLD 919 Lahore DB Judgment), "Nisar Ahmed v. The State" (2014 YLR 2635 Sindh DB Judgment)" and "A. L. Zahir ul Haq Khan v. The State" (PLD 1962 Dacca 447).

5. Learned Deputy Prosecutor General with all fairness has maintained that in the facts and circumstances of the case and record of learned trial court appended with this petition, impugned order is not sustainable.

6. Arguments heard. Record perused.

7. As per record appended with this petition, Muhammad Khan, accused on 14.9.2019 disappeared during trial whereupon learned trial court issued non-bailable warrant of arrest followed by proclamation in terms of section 87, Cr.P.C. against him. However, the said accused failed to put appearance before learned trial court. In this background learned trial court after initiating proceedings under section 514, Cr.P.C. vide impugned order dated 26.11.2019 proceeded against the surety, in terms noted above.

8. Before proceeding further in the matter, it would be advantageous to reproduce Section 514 Cr.P.C. which reads as under: "

514. Procedure on forfeiture of bond.

(1)Whenever it is proved to the satisfaction of the Court by which a bond under this Code has been taken, or of the Court of a Magistrate of the First class, or when the bond is for appearance before a Court, to the satisfaction of such Court, that such bond has been forfeited, the Court shall record the grounds of such proof, and may call upon any person bound by such bond to pay the penalty thereof, or to show cause why it should not be paid. (2) If sufficient cause is not shown and the penalty is not paid, the Court may proceed to recover the same by issuing a warrant for the attachment and sale of the movable property belonging to such person or his estate if he be dead. (3) Such warrant may be executed within the local limits of the jurisdiction of the Court which issued it, and it shall authorize the attachment and sale of any movable property belonging to such person without such limits, when endorsed by the District Officer (Revenue) within the local limits of whose jurisdiction such property is found. (4) If such penalty is not paid and cannot be recovered by such attachment and sale, the person so bound shall be liable, by order of the Court which issued the warrant, to imprisonment in the civil jail for a term which may extend to six months. (5) The Court may at its discretion, remit any portion of the penalty mentioned and enforce payment in part only. (6) Where a surety to a bond dies before the bond is forfeited, his estate shall be discharged from all liability in respect of the bond. (7 )When any person who has furnished security under sections 107 or section 118 is convicted of an offence the commission of which constitutes a breach of the conditions of this bond, or of a bond executed in lieu of his bond under section 514-B, a certified copy of the judgment of the Court by which he was convicted of such offence may be used as evidence in proceedings under this section against his surety, or sureties, and, if such certified copy is so used, the Court shall presume that such offence was committed by him unless the contrary is proved." (emphasis supplied). While interpreting above provision of law the Hon'ble Supreme Court (AJ&K) in case Shaukat Ali and another v. The State (1984 PCr.LJ 718) held as under: "It is quite plain that section 514 Criminal Procedure Code indicates that three steps are to be taken, namely, (i) it must be proved to the satisfaction of the Court that the bond has been forfeited, whereupon the Court is to record the grounds of such proof; (ii) the Court on being satisfied as aforesaid, may call upon the person bound by such bond to pay penalty thereof or to show cause why it should not be paid; and (iii) if sufficient cause is not shown and penalty is not paid the Court may proceed to recover the amount so forfeited by issuing a warrant for attachment and sale of the movable property belonging to such person or his estate." In another case reported as Tassaduq Hussain Gillani v. The State (2012 PCr.LJ 1108 (Supreme Court (AJ&K)] Hon'ble Supreme Court (AJ&K) ruled as under: "A glance reading of the above provision shows that there are three stages which are required to be followed before passing a final order: (i) where the bond was for appearance of an accused as provided under section 514, Cr.P.C., as soon as the accused absents himself in violation of the bond executed by him or his surety, the first step to be taken by the Court was to satisfy itself that the accused has violated the terms and conditions of the bond and if the bond was liable to be forfeited, the Court would pass order for its forfeiture while recording the reasons in that respect; (ii) the second step to be taken by the Court is to call upon the person bound by such bond to pay the penalty thereof or to show cause as to why the penalty should not be paid; and (iii) the third step to be taken by the Court is, if instead of making the payment, the person bound by the bond would offer explanation, then by recording reasons he will be asked as to why the offer made by him should or should not be accepted". (emphasis supplied by me) Perusal of above quoted provision of law read in conjunction with this interpretation would demonstrate that three steps are to be taken, before deciding to send the surety to prison, i.e. (i) it must be proved to the satisfaction of the court that the bond has been forfeited, whereupon the Court is to record the grounds of such proof; (ii) the Court on being satisfied as aforesaid, may call upon the person bound by such bond to pay penalty thereof or to show cause why it should not be paid; and (iii) if sufficient cause is not shown and penalty is not paid, the Court may proceed to recover the amount so forfeited by issuing a warrant for attachment and sale of the movable property belonging to such person or his estate. If such penalty is not paid and cannot be recovered by such attachment and sale, it is as a last resort that the person so bound shall be liable to imprisonment in civil jail for a specific period not more than six months. Thus before taking coercive measures in the matter reasonable opportunity has to be provided to the surety to show cause why bond be not paid by him. This safeguard has been provided in order to enable the surety to advance proper explanation. Reference in this regard may also be made to the cases Sanwan and another v. The State (PLD 1965 (W.P.) Karachi 516), Adho Khan v. The State (2001 PCr.LJ 35), Shaukat Ali and another v. The State 1980 PCr.LJ Supreme Court (AJ&K) 718], Shabbir Hussain v. The State (2018 MLD 173) and Ghulam Raza v. The State (PLD 2013 Lahore 473).

9. Examining the impugned order on the touchstone of the above requirements of law, it is but clear that the learned trial court has not followed the procedure laid down in section 514, Cr.P.C and on his own whims/wishes, quite in casual manner without affording fair right to submit reply to show cause notice and address the Court proceeded to pass the impugned order. The learned trial Court without first having recourse to the provisions of Section 514(2) Cr.P.C. for attachment of moveable property of the surety to recover the penalty amount, straightaway passed another order for remitting him to civil prison for six months which as per intention of legislature is the last step/resort to execute the order. Perusal of impugned orders of the learned trial Court shows that the same have been passed in a hasty manner and without observing the relevant provisions of law and without following the procedure provided in section 514 Cr.P.C. Thus from the record it is established that learned trial court has acted in self-styled manner unwarranted under law and has not exercised the powers in accordance with law. Needless to mention that procedure contemplated under section 514, Cr.P.C. is mandatory in nature and any deviation from said procedure, would make such order nullity. The impugned order clearly violates the express and mandatory requirements of section 514, Cr.P.C. It is trite law that where law required a thing to be done in a particular manner, it must be done in that manner alone or not at all as nobody should try to be wiser than law. Reference may be made to case Muhammad Yousaf v. The State [2003 PCr.LJ 347(Lahore)]. By the impugned orders trial Court has curtailed liberty of the petitioner without due process of law, as such the impugned order is violative of Articles 4 and 25 of the Constitution. For facility of reference these articles are reproduced hereunder: "4(1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen wherever he may be, and of every other person for the time being within Pakistan. (2) In particular- (a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law, (b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and (c) no person shall be prevented from or be hindered in doing that which the law does not required him to do." "25(1) All citizens are equal before law and are entitled to equal protection of law. (2) .. (3) .. (emphasis supplied by me)

10. It may be mentioned that the trial Court, as is evident from record, fully aware of the mandatory procedure of Section 514 Cr.P.C. has issued show cause notice to the petitioner and asked him to submit reply to show cause notice on the same date, but it is not substantial compliance of aforesaid provision of law. The petitioner to contest the notice appointed a counsel but he was not afforded reasonable time to submit reply to show cause notice. As such these sham/fake proceedings are in violation of law and principles of natural justice. Such mode and manner of proceedings is violative of "right of fair trial" guaranteed under Article 10-A of the Constitution. The trial court could not realize its responsibility that it was bound to administer justice only as per mandate of law and could not proceed in the matter in violation of procedure laid down in the Cr.P.C.

11. Learned Law Officer on call is in agreement with the submissions made by learned counsel for the petitioner that the petitioner cannot be kept behind bars for any further period at the altar of procedural technicalities, if any. Section 435, Cr.P.C. confers ample powers to this Court to examine any proceeding of any subordinate criminal court, situated within its territorial jurisdiction, for the purpose of satisfying itself as to the correctness, legality or propriety of any findings, sentence or order recorded or passed. The impugned order found to be an abuse of process of court, is not sustainable in law.

12. In this view of the matter, this petition is accepted, the impugned order being misuse of authority is set aside and the petitioner is directed to be released forthwith by the Superintendent, District Jail, Shahpur District Sargodha. The matter is remanded to the learned trial Court to proceed in the matter in accordance with law.

13. The petitioner will appear before learned trial court on 20.02.2020. MH/M-40/L Case remanded.