2007 P Cr (PLP)

AMIR HANI MUSLIM, J.

By consent this revision application which is fixed for Katcha Peshi, is admitted to regular hearing as point involved in the case is short to which both the learned counsel state that this could be decided without consumption of much time. This revision is preferred against the order of the Special Judge, S.T.A., Hyderabad who by his order has forfeited the surety amount of Ghulam Hussain son of Sultan Mehrani, who stood surety for accused Muhammad Rahim Mirbehar and executed bond in the sum of Rs. 50,000 for appearance of the said accused. The facts as they appear form the record are that Ghulam Hussain son of Sultan Mehrani stood surety for Muhammad Rahim Mirbehar. The said surety Ghulam Hussain died on 19-10-2002. According to the case diary of the trial Court the accused Muhammad Rahim Mirbehar failed to appear on 17-7-2002 as a result of which the trial Court issued N.B.Ws. against the accused and notice was also issued to the surety. On subsequent dated the accused did not appear in the trial Court and the son of the surety appeared in Court and has produced the death certificate of the surety issued by the Nazim of Union Council Bukera Sharif. The son of the surety further informed the trial Court that the surety died on 19-10-2001. The trial Court verified that the contents of para.1 of the plaint of the dearth certificate, issued by the said Union Council which by its report dated 14-12-2002, has confirmed its authenticity. After this exercise the trial Court passed an order forfeiting the surety amount of the deceased surety which order is impugned in these proceedings. Learned counsel for the applicant contends that the impugned order is against the language of section 514(6) of Cr.P.C. which required that in the event of death of a surety prior to the orders of forfeiture of the bonds, he shall be discharged form all liabilities in respect of the bond. It appears that the trial Court while passing the impugned order has overlooked this mandatory provision of law and has ordered forfeiture of surety amount. Learned counsel for the applicant contended that the surety has submitted the document of immovable property before the trial Court. He further contends that in view of the provision of law, referred to hereinabove, impugned order be declared as nullity. Learned State counsel concedes to this proposition of law and says that the impugned order is not tenable in law. I have examined the provision of section 514(6) of Cr.P.C. The plain reading of subsection (6) makes it mandatory that if the surety died prior to forfeiture of the bond, he shall be discharged form all the liabilities in respect of the bond. The impugned order does not advert to either the provision of the said law or the factum of death of the surety. The trial Court had the notice of the fact that surety had died prior to absconsion of accused and, therefore proceedings taken under section 514, Cr. P.C. in the manner by the trial Court was outside the purview of law. I, therefore, set aside the impugned order passed by the trail Court. The original surety documents be returned to the L.Rs. of the surety on proper verification. The revision application stands allowed in the above terms. H.B.T./S-4/K?????????????????????????????????????????????????????????????????????????????????????? Revision allowed.