P L D 1966 (W (PLP)

2. The following points are raised by the learned counsel (1) No notice under section 514, Cr. P. C. was given to the petitioner and thus the procedure adopted by the Court was not in accordance with law; (2) That the accused had already been arrested in some other case and he being in the custody of the State, it was physically impossible for the petitioner to have produced him and (3) That the amount in any case is excessive and the entire amount could not be confiscated. Reliance is placed on Rustam Ali v. State (P L D 1957 Dacca 467), where it was laid down; "Three stages are contemplated for a proceeding under section 514, Cr. P. C. Firstly, a declaration of forfeiture, secondly, an order for payment or to show cause and thirdly, steps to be taken for the recovery of the amount." The learned counsel contended that the Court, while passing an order of confiscation, should have recorded some evidence before the order of confiscation was passed. In the cited case the accused was absent on the hearing of the case and sent medical certificate in respect of his illness. The trial Court on the next date, when the accused was present, finding the accused in health; observed that the medical certificate produced was to support "an inspired illness" although the appellant was not really ill. Hence, the absence was in no way justified and the petition was accordingly rejected and direction for realisation of the penalty of the appellant was given. The facts of the instant case are apparently distinguishable. Here in this case no intimation by the accused or by his surety was given about the reason of the non‑attendance of the accused. Obviously, the accused having remained absent on several dates without having cared to inform the Court as to what circumstance prevented him from attending the Court, therefore, the principle laid down in this authority is not applicable.

3. The surety is of course entitled to an opportunity to offer explanation for non‑appearance and show that the default was not willful and as such may be excused or condoned. Section 514, subsection (1), Cr. P. C. reads: "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." Where the Court has before it the order for bail, the bail bond and the fact that the petitioner did not produce the accused, the provisions of the section had been substantially complied with. Where the grounds of proof exist and appear in the record of proceedings, though they are not formally and separately recorded, the section is materially complied with and the omission to record them is a matter relating to procedure and not to jurisdiction and, therefore, the defect if any, will be cured by section 537, if no prejudice has been caused thereby. The record of the case and the fact that there was a failure to appear is enough for the satisfaction of the Court to record the order of forfeiture and there need not be any further record of grounds of proof. If any cause is shown by the accused or by his surety for non‑appearance, the Court is obliged to find out whether the absence was intentional or inadvertant inasmuch as the accused was prevented by sufficient cause from attending the Court. It is in this context that before the order of forfeiture is passed, some cogent evidence has to be recorded by the Magistrate. The facts of this case are different from the one quoted by the learned counsel. The argument on this ground is devoid of any force. The petitioner appeared in Court on the 12th of August 1963, and gave undertaking to produce the accused on the 30th of July 1963. The accused was arrested on the 14th of September 1963, in some other case at Lyallpur, therefore, the plea that it was physically impossible to produce the accused, does not hold because one date intervened between the date of arrest of the accused and the undertaking given by the petitioner of producing the accused in Court. In considering whether the arrest of an accused person by the police on another charge releases a person from his liability to produce him in a Court in accordance with the bond executed by him, the important point is not the mere arrest but confinement under arrest on the date when the production is to be made which make such production impossible. B The surety is not absolved from his liability by merely stating that the accused was arrested by the police. He has to specifically show the dates on which the accused absented himself, and how it was physically impossible for him to produce the accused. In any case, the arrest of the accused was subsequent to the undertaking given by the petitioner and after the date of hearing, that followed the undertaking. Prior to the confiscation of the bail bond no explanation had been offered by the petitioner as to how it was physically impossible to produce the accused in Court. In the case of Sardar Khan v. Crown (P L D 1952 Lah. 645) it was held "The Court should regulate the imposition of penalty in cases of default from the point of view, not so much of assessing the "guilt" of the sureties in terms of money, but with the object of maintaining the system in its integrity. In other words, if leniency towards sureties became the general rule, the whole system of release of accused persons on bail might require to be re‑examined to ensure the proper progress of criminal cases. At the same time, it is obviously not necessary or desirable in the average case, that the Court should lean in the direction of severity, for this might lead to difficulties in production of sureties, having the effect of overcrowding the judicial lock‑ups and other attendant inconveniences."

4. While considering the constant absence of the accused from the Court, the petitioner being the brother of the accused his obligation has also to be kept in view that a wayward brother can seldom be disowned. He had to offer surety for the accused, for G a brother will be the last person to refuse it. Under the circumstances it will be proper to take a lenient view of the matter. 1, accordingly, order that only Rs. 750 be confiscated and realised from the petitioner instead of Rs. 1,

000. The revision petition is accepted to this extent only. K. B. A.?????????? Petition partly accepted.