1991 PLP 956 (MLD)

3. Aggrieved from the order passed by the learned Additional Sessions Judge and from the proceedings initiated under section 514 Cr.P.C., the petitioners have now invoked the inherent powers of this Court under section 561-A of the Criminal Procedure Code.

4. Mr. Khawaja Nawaz Khan, Advocate for the petitioners, argued that the order passed by the learned Additional Sessions Judge is unlawful for the reason that before forfeiture of the bonds no opportunity of hearing was afforded to the petitioners and that they could not be penalized for negligence of the accused.

5. Mr. Muhammad Salim Khan Gandapur, the learned State counsel, half-heartedly supported the proceedings initiated under section 514 Cr.P.C.

6. The procedure of forfeiture of bonds is given in Section 514 Cr.P.C. The relevant provisions contained in subsections (1) and (2) of section 514 Cr.P.C. are reproduced below:-- (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 of such proof, and may call upon any person bound by such bond to pay the penalty thereof, onto 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."

7. The procedure laid down is that when the bond is for appearance before the Court then the Court is to satisfy itself that such bond has been forfeited and shall record the grounds of such proof and may call upon such person bound by such bond to pay the penalty thereof or to show cause why it should not be paid. 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. In the instant case, the learned Additional Sessions Judge does not appear to have satisfied himself about the forfeiture of bonds. He has without calling upon the sureties to show cause directed the Ilaqa Magistrate to recover the amount from them. The order dated 20-7-1988, is therefore, patently illegal. In number of reported cases, the superior Courts have held that when the bond is for appearance before the Court, the Court is required to record grounds to justify the forfeiture of bonds before issuing notice to the sureties: The Court is to make enquiry to ascertain whether absence of the accused was deliberate or beyond his control. In re: State appellant v. Abdul Sattar respondent (1976 P. Cr. LJ 474 Karachi) while discussing the provisions of section 514 Cr.P.C. it was held as under:-- "I have examined the case and heard the parties. Admittedly in this case no enquiry was made to ascertain as to whether the absence of Masood Noorani on 28-3-1970 was due to circumstances beyond his control or he had actually absconded to avoid appearance before the Court. In the absence of such an enquiry the order imposing the penalty is patently illegal. It is also manifest from the record that the Court did not first declare the forfeiture of the bond nor recorded the grounds for finding that forfeiture of bonds was justified under the law before issuing notice to the surety. The order whereby penalty was imposed is, therefore, illegal on this score as well."

8. In another case reported as Muhammad Ajmal appellant v. The State respondent 1968.P.Cr.LJ.682 Karachi, after considering the case-law from Indian jurisdiction and of the Supreme Court of Pakistan in Dildar v. The State P L D 1963 Supreme Court 47 it was held that forfeiture of bond was not justified when the Sessions Judge had not recorded his grounds before ordering forfeiture of bond. The Supreme Court, in the case of Dildar, held as under:- "Where, however, we find defect in. the proceedings taken against the appellants is in this, namely, that no effort appears to have been made by the Courts below to enquire into the relevant matters affecting the degree of their responsibility. Sureties are not constituted as custodians of accused person, and in the absence of proof to the contrary, it may generally be assumed that they do not gain by standing surety. The system of releasing accused persons on bail has several aspects of importance to the administration of justice generally. It avoids anything in the nature of punishment in advance, since restraint upon liberty even when applied for the purpose of ensuring that a case is duly enquired into and judged, necessarily involves loss of personal rights. At the same time; the release of accused persons on bail assists in the administration of justice by preventing overcrowding in the available spaces of imprisonment. Therefore, in dealing with cases of sureties who are in default, a balance has to be held between undue leniency, which might lead to abuse of the procedure and interference with the course of justice in a large number of cases, and on the other hand, undue severity, which might lead to unwillingness on the part of neighbours and friends to come forward and give bail for persons under accusation. Finally, in assessing to what extent the bond should be forfeited, the Court would have regard to such matters as whether the sureties have any direct interest through financial or blood connection with the accused, whether they have connived at or procured the absence of the accused, and whether they have done their best to secure his attendance. These matters have not been enquired into by the Courts below. We have accordingly thought fit to question the two sureties ourselves on these points."

9. In the case of Banaras Khan v. The State reported in 1975 P Cr. L J 954 (Karachi), his Lordship the Chief Justice, relying upon Dildar's case observed:-- "I think there can be no doubt, whatever, that the surety is liable for the entire amount and that in law the learned Judge was quite competent to forfeit the whole sure It does not necessarily, however, follow that the entire sum should have been forfeited; although the bond is in the nature of a contract the purpose of the bond is to ensure the presence of the accused person and not always to extract a penalty. Courts have always, therefore, looked into the attendant circumstances of a case to see how much of the bond ought to be forfeited." The aforementioned decisions of superior Courts go to show that the Court in not enquiring into the circumstances of the case and forfeiting the entire amount violate the provisions of section 514 Cr.P.C. In the instant case also, the learned Additional Sessions Judge failed to comply with the provisions of Section 514 Cr.P.C. He has neither recorded grounds of proof of his satisfaction of forfeiture of bond nor has afforded any opportunity of hearing to the sureties i.e. the petitioners. In the circumstances of the case to meet the ends of justice and to observe the requirements of law I would direct the learned Additional Sessions Judge, Bannu to proceed against the petitioners in accordance with the provisions of section 514 Cr.P.C.

10. Resultantly, the petitioners' prayer for quashment of the proceedings is not accepted and the case is remanded to the learned Additional Sessions Judge, Bannu to proceed in the matter strictly in accordance with the provisions of section 514 Cr.P.C. This Criminal Miscellaneous is disposed of accordingly. N.H.Q/1171/P ??????????????????????????????????????????????????????????????????????????????????? Case remanded.