1993 P Cr (PLP)

Zaheer Ahmad Qureshi for the State. Date of hearing: l3th September, 1993. This revision petition is directed against the order dated 7-4-1993 passed by the learned Sessions Judge, Shikarpur, whereby the surety bond furnished by petitioner Shah Nawaz for accused Maula Bakhsh alias Dholoo was forfeited and direction was made to the Mukhtiar-i-Kar, Khanpur and S.D.M., Shikarpur for attachment of his movable and immovable property. The petitioner stood surety for accused Maula Bakhsh alias Dholoo in Crime 11o.87 of 1991 for offence under section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, registered at Police Station Khanpur. After acceptance of the surety bond a reference was made to Mukhtiar-i-Kar, Khanpur, for verification of the status of the surety. The Mukhtar-i-Kar reported that the land of the surety was already mortgaged with Agricultural Development Bank of Pakistan, Khanpur. Thus, the Court issued notice for his appearance but he failed. The Court, therefore, forfeited the bond and ordered for attachment of his movable and immovable property on 7-4-1993. The above said order has been challenged before this Court.

2. Sardar Muhammad Ishaque, Advocate, appeared for the petitioner and Mr. Zaheer Ahmad Qureshi, Advocate, appeared for the State.

3. With the assistance of the learned counsel for the petitioner I have gone through the impugned order and the case diary of 28th March, 1993 and 18th April, 1993, maintained by the learned S.D.M., Shikarpur, in the case of Maula Bakhsh alias Dholoo. Accused Maula Bakhsh had been attending the Court regularly. It is not case of the prosecution that the accused had failed to appear before the Court and there was violation of the surety bond. Here the case is that surety remained absent. The surety did not attend the Court in spite of notice issued by the Court. In that case the provisions of section 501, Cr.P.C. are attracted. For ready reference the provisions of section 501, Cr.P.C. are reproduced hereunder:-- "Power to order sufficient bail when that first taken is sufficient.

If through mistake, fraud or otherwise, insufficient sureties have been accepted, or if they afterwards become insufficient the Court may issue a warrant of arrest directing that the person released on bail be brought before it and may order him to find sufficient sureties and, on his failing so to do, may commit him to jail:"

4. A bare reading of the abovesaid section reflects that if the learned trial Court had found the surety insufficient he could have issued order for arrest of the person released on bail on such insufficient surety. The learned trial Court, indeed, had no jurisdiction to forfeit the bond and order for attachment of the movable and immovable property of the petitioner. In such view of the fact the impugned order on face of it is illegal which is set aside. However, if the accused Maula Bakhsh has failed to appear before the trial Court then the bond may be forfeited under section 514, Cr.P.C. and show cause notice be issued to the surety for realization of penalty under the provisions laid down in the abovesaid section. The petition is disposed of accordingly. N.H.Q./838/FSC Revision petition accepted.