1987 P Cr (PLP)

‑‑S. 514‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10 & 16‑‑Forfeiture of surety bond‑‑Condition precedent for imposing penalty or launching recovery proceedings‑ ‑Non‑bailable warrants of arrest against accused not issued by Trial Court from which it could be gathered that surety bond executed by surety had been forfeited‑‑Unless declaration of forfeiture of bond had been made, order directing executant of bond for paying penalty thereof, held, could not be legally passed‑‑ Order of Trial Court below imposing penalty against surety suffering from such illegality‑‑Order set aside and case remanded to .Trial Court for redecision in accordance with law after hearing parties. Nemo for Petitioner. Muhammad Aziz Qureshi for the State. Date of hearing:.l0th May, 1987. Taj Muhammad s/o Nizam Din, caste Rajput, r/o Mohallah Afghanabad No.2, Gali No.3, Faisalabad, filed this Criminal Revision No. 528‑86, challenging the propriety and correctness of the order dated 15‑ 10‑ 1986, passed by Rustam Ali Malik, Additional Sessions Judge, Faisalabad, whereby he directed the petitioner to pay a sum of Rs.4,000 as penalty.

2. Briefly the facts are that Taj Muhammad petitioner herein stood surety for the appearance of Dr. Arshad Hussain Bukhari in Court who was an accused in a case under sections 10 and 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, pending trial in the Court of Additional Sessions Judge, Faisalabad. The said accused despite repeated notices did not appear in Court. Consequently, learned trial Court issued notice against the petitioner. The petitioner in response to the notice appeared before the trial Court on 4‑3‑1986 and sought adjournment on number of occasions for tracing out and producing the said accused in Court. He failed to produce him whereupon a notice was issued to him to show cause why amount of bond executed by him be not recovered from him. Learned trial Court then passed impugned order on 15‑10‑1986 observing that since it was satisfied that the bail bond executed by the petitioner has been forfeited, therefore, the surety amount could be recovered from the petitioner and ordered that the petitioner shall deposit Rs.4,000 as penalty. Aggrieved of this order, the instant revision petition has been filed.

3. This petition was admitted to regular hearing on 3‑11‑1986. The petitioner has not appeared today, therefore, I have gone through the record with the assistance of learned State counsel. It appears that the original or even the copy of the bond alleged to have been executed by the petitioner is not on the file. Non‑bailable warrant of arrest against the accused had not been issued either from which it might be gathered that surety bond executed by the petitioner had been cancelled or forfeited. It does without saying that forfeiture of bond is a condition precedent for imposing penalty or launching the recovery proceedings. To my mind unless proper declaration of forfeiture of bond has been made, order directing the executant of bond for paying penalty thereof could not be legally passed. So, I find that the impugned order suffers from illegality and is not sustainable. Consequently, this revision petition succeeds. The impugned order is set aside and the matter is remanded to the trial Court to re‑decide the case in accordance with law, after hearing parties. Petition disposed of. Record be sent down immediately. M.Y.H./T‑12/L Case remanded.