1994 P Cr (PLP)

Date of hearing: 8th May, 1994. This Constitutional Criminal Revision has been filed by petitioner, Haji Noor Muhammad, who had stood surety in the sum of Rs.50,000 for accused, Farid Khan son of Khan Muhammad Sheikh. As the accused had absconded, the trial Court, learned IVth Additional Sessions Judge, Larkana, forfeited the bond and, by the impugned order, dated 5-3-1994, directed the petitioner to pay the entire amount of Rs.50,000 within one month and, in case of failure, orders regarding attachment of his movable property would be issued. In Crime No.65 of 1990 of Police Station B-Section, Larkana, dated 19-4-1990, two accused, namely, Abdul Qadir and Farid Khan were arrested. The crime was registered under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, and section 13-D of the Arms Ordinance, 1965. The case was challaned in the trial Court and, on 12-5-1992, the petitioner, Haji Noor Muhammad, offered himself as surety for accused, Farid Khan, in the sum of Rs.50,

000. Accused, Farid Khan, remained absent on 16-9-1993 and 16-10-1993 when the case was fixed before the trial Court and, in the circumstances, his bail bond was forfeited and show-cause notice was issued to the petitioner. According to the impugned order, dated 5-3-1994, the petitioner appeared before the trial Court pursuant to the show-cause notice and sought time for production of the accused. Time was allowed from time to time to the petitioner till 12-2-1994 but neither the petitioner produced the accused in Court nor submitted any reply to the show-cause notice and only stated that the accused had gone to Saudi Arabia and had still not returned. The trial Court in its impugned order has further submitted that initially Muhammad Usman had offered himself as surety for the accused but then on 18-4-1992, Muhammad Usman moved an application that since the accused was leaving for Saudi Arabia, he wanted to withdraw his surety bond. His application was allowed on 12-5-1992 and the present petitioner offered himself as surety for accused, Farid Khan and in the circumstances, the trial Court observed that the present petitioner had full knowledge that the accused would leave for Saudi Arabia and abscond. The trial Court was of the view that the accused was involved in a case under section 17(3) of the 1979 Ordinance and he had left for Saudi Arabia without intimation and his absence from the Court was intentional and deliberate. The trial Court accordingly penalised the petitioner to the full amount of surety bond i.e. Rs.50,

000. Being aggrieved, the present Constitutional Criminal Revision has been filed by the petitioner. I have heard at length the arguments of Mr.. Ghulam Qadir Jatoi, learned counsel for the petitioner/surety and Mr. Wakeel Ahmed Qureshi, Advocate, who had appeared on behalf of the State. The following two contentions have been raised by Mr. Ghulam Qadir Jatoi, learned counsel for the petitioner:-- (a) In the present case, only one show-cause notice was issued by the trial Court, whereas under the law two show-cause notices are required to be issued. According to the learned counsel, issuance of two show-cause notices is mandatory. Elaborating his arguments, Mr. Ghulam Qadir Jatoi, learned counsel for the petitioner, submitted that before the bond is forfeited, a show-cause notice has to be issued and in the order forfeiting the bond, reasons are to be recorded. It was then argued, that after the first stage is over, and an order has been passed forfeiting the bond, the second step that is required to be taken by the trial Court under section 514, Cr.P.C. is to issue a notice to the surety calling upon him to pay the penalty under the surety bond or to show cause why it should not be paid. According to Mr. Ghulam Qadir Jatoi, learned counsel for the petitioner, at the first stage, no show -cause notice was issued and only a show-cause notice was issued at the second stage. I find no substance in the submission of the learned counsel that section 514, Cr.P.C. requires two show-cause notices to be issued, i.e. one before the forfeiture of the bond and second after the forfeiture of the bond. Where a surety bond is given for appearance of accused before the Court, as in the present case, if the accused does not appear before the Court while on bail, after noting that the accused has not appeared, the trial Court is entitled to forfeit the bond and, prior to such order, it is not necessary to issue any show -cause notice to the surety. However, after the bond has been forfeited, section 514(1), Cr.P.C. would require to issue a notice to the surety calling upon the surety to pay the penalty thereon or to show cause why it should not be paid. It is not disputed that such notice was issued. I am, therefore, of the view, that in the present case, there is no violation of the provisions of section 514, Cr.P.C. in so far as issuance of show-cause notice is concerned. (b) The other argument advanced by Mr. Ghulam Qadir Jatoi, learned counsel for the petitioner, is that a lenient view ought to have been taken and the entire amount of the bond should not have been ordered to be paid by the petitioner. The learned counsel conceded that no doubt the accused had gone to Saudi Arabia without the permission of the Court but, according to him, the instructions are that the accused, for whom the petitioner had stood surety, had gone to Saudi Arabia to perform Umra where he met with an accident and mother of the accused has informed that the petitioner is now in jail in Saudi Arabia apparently for overstaying. Mr. Wakeel Ahmed Qureshi learned counsel for the State, submitted that no ground for leniency has been made out and, as such, the impugned order directing the full amount of the surety to be paid may not be modified. In the facts and circumstances of the case, I am of the view that ends of justice will be met if the penalty is reduced from Rs.50,000 to Rs.20,000 (Rupees twenty thousand only). In the circumstances, this Constitutional Criminal Revision is disposed of by modifying the impugned order to the extent that instead of the full amount of Rs.50,000 of the surety bond, an. amount of Rs.20,000 (Rupees twenty thousand only) will be recovered from the petitioner. The petitioner is granted time till 30-6-1994 to pay amount of Rs.20,000 (Rupees twenty thousand only) failing which further action for recovery of the amount can be taken by the trial Court in accordance with law. It has been noted that, according to the petitioner, as soon as the accused is released from jail in Saudi Arabia, he will come to Karachi and will either himself appear before the Court or will be produced by the petitioner before the Court. N.H.Q./891/FSC Penalty reduced.