2007 PLP 1968 (YLR)

IJAZ-UL-HASSAN KHAN. J.

This criminal revision is directed against the order dated 15-9-2006 of learned Additional Sessions Judge/Izafi Zila Qazi, Dir at Timergara, vide which he dismissed the appeal of Waheedullah, petitioner and upheld the order dated 17-7-2006, regarding forfeiture of bond to the tune of Rs.25,000.

2. Shortly narrated the facts are, that Mian Rasool Shah, respondent No.2 herein, and Maulvi Syed Bahadur, lodged a complaint against Jamroz Khan, and others, under section 427/34, P.P.C. in the Court of Illaqa Qazi (Criminal) Balambat, Timergara in which Waheedullah petitioner stood surety of Jamroz Khan for appearance before the Illaqa Qazi/Magistrate. At the conclusion of trial, accused Jamroz Khan and co-accused were extended benefit of doubt and acquitted of the charge vide order dated 10-9-2003. On appeal filed under section 417, Cr.P.C. by respondent No.2, it transpired that said Jamroz Khan was not available in the Village and had gone abroad to earn livelihood. This Court issued non-bailable warrant of arrest against Jamroz Khan and the bail bond executed by the petitioner was forfeited. An appeal was filed thereagainst which did not succeed. The same was dismissed through the impugned order, giving rise to the filing of instant criminal revision.

3. Mr. Hidayatullah Muhammadzai, Advocate for the petitioner, contended that judgment and order of learned appellate Court is violative of the provisions of section 514, Cr.P.C.; that petitioner stood surety for the appearance of Jamroz Khan accused for trial purposes and that the splitting of jurisdiction for forfeiture of bond by one Court and serving show-cause notice on the petitioner by the other Court is bad in law. To augment the contentions, reliance was placed on Khan Bahadur v. The State 1992 PCr.LJ 2238 (Federal Shariat Court), Muhammad Khan and another v. The State 2004 YLR Peshawar 3290 and Ali Jan v. The State 1990 MLD 2076.

4. Conversely Mr. Umar Hayat, Advocate, representing the State assisted by Mian Shaukat Hussain, Advocate for respondent No.2, on the strength of a case Gulzada v. Muhammad Usman through legal heirs and 6 others PLD 1990 Supreme Court 465 opposed the arguments advanced by learned counsel for the petitioner and defended the impugned order wholeheartedly.

5. I have heard, at length arguments of learned counsel for the parties in the light of the material on the file and case law cited at the bar.

6. Section 514, Cr.P.C. which lays down the procedure of forfeiture of bond reads:-- "514. (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 on 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 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 Magistrate 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 section 107 or section 118 is convicted of an offence the commission of which constitutes a breach of the conditions of his bond, or of a bond executed in lieu of his bond under section 514-B, 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."

7. It will be seen that under section 514, Cr.P.C. the following are essential requirements regulating the procedure of forfeiture of bond: (i)???????? It must be proved to the satisfaction of the Court that a bond has been forfeited; (ii)??????? The Court must record grounds for such proof of forfeiture; (iii)?????? A show-cause notice should be issued by the Court to, the surety why the penalty should not be paid for such breach; (iv)?????? If sufficient cause is not shown, or if the penalty is not paid the Court may proceed to recover the same; and (v)??????? The recovery can be made by issuing a warrant for the attachment and sale of the movable property belonging to surety. The plain reading of the provision of law re-produced above will show that when the bond is for appearance before a particular Court then that Court alone and no other Court can proceed under section 514, Cr. P. C. to forfeit the bond.

8. It is settled proposition of law that surety bond is a contract of civil nature and the Court shall construe the condition strictly. In the instant case, the original bond was meant for the Court of Illaqa Qazi only and in case it was to be available for any other Court also the same ought to have been expressly provided. As surety bond filed by the petitioner specifically provided that the petitioner shall be responsible for the presence of accused Jamroz Khan in the Court of Illaqa Magistrate, no penalty for his absence in any other Court was attracted.

9. Having adjudged the matter from all angles, I find myself in agreement with learned counsel for the petitioner that the impugned order is not in consonance with law on the subject and cannot be allowed to remain in field Resultantly? I accept the criminal revision and set aside the impugned order. The petitioner shall stand exonerated from the liability of payment? penalty. H.B.T./86/P???????????????????????????????????????????????????????????????????????????????????????? Revision accepted.