1999 P Cr (PLP)

Dost Muhammad Khan for the Complainant. Date of hearing: 30th November, 1998. By this order, I propose to dispose of Criminal Appeals Nos.20 to 22 to22 of 1998. Criminal Revisions Nos.4 to 6 of 1998 and Criminal Revisions Nos.7 to 9 of 1998, as all of them have arisen out of common orders, dated 2-7-1998 and 18-7-1998 of the learned Additional Sessions Judge, Lakki Marwat

2. Brief facts of the case are that Muhammad Rukhan charged Salim Khan. Afsar Khan and Ajab Khan for the murder of his brother Gul Rehman vide F. I. R. No. 1. dated 4-1-1998 under section 302/324/34, P.P.C. of Police Station Dadiwala, Tehsil and District Lakki Marwat. On 2-2-1998 the accused were granted ad interim pre-arrest bail in the sum of Rs.1,00,000 with two sureties 'by Additional Sessions Judge, Lakki Marwat. Muhammad Yar Khan, Abdul Marian and Khurshid Ali stood sureties for the accused and they undertook to produce them on every date, failing which they shall pay penalty of Rs.one lac. On li)-2-1998 and 17-2-1998 the accused attended the Court but did not appear or, 24-2-1998, therefore, the ad interim bail granted to them was recalled Additional Sessions Judge, Lakki Marwat and Moharrir was directed to open a separate file under section 514, Cr.P.C. against the sureties. The sureties were issued show cause under section 514, Cr.P,C, which were replied by them. The replies were found unsatisfactory and were directed to pay 1/4th of Rs.one lac as penalty, i.e. Rs.25,000, or Rs.12,500 each acid the same was ordered to be recovered by attachment and sale of their property vide order, dated 2-7-1998. 'The sureties did not pay the penalty amount in three days as directed, therefore, they were ordered, vide order, dated 18-7-1998, to be detained in civil jail for two months and if they make the payment earlier, they should be released. 3: In Criminal Appeals Nos.20 to 22 of 1998, Abdul Marian and Muhammad Yar Khan sureties have taken exception to order, dated 18-7-1998 whereby the v were ordered to be detained in civil prison for a term of two months each. The complainant Muhammad Rukhan in his Revisions Nos.4 to t; of 1998, has prayed for setting aside of the order, dated 2-7-1998, whereby the sureties were ordered to pay 1/4th of Rs. one lac and sought enhancement of the amount of Rs.12,500 to Rs.one lac each. Muhammad Yar and Abdul Marian, the sureties, have also assailed the order, dated 2-7-1998 through Criminal Revisions Nos.7 to 9, vide which the penalty of Rs.12,500 each was imposed.

4. Learned counsel for the appellants/petitioners contended that the impugned order, dated 2-7-1998 of the Court below is against law, as the same was passed without forfeiting the bond and recording reasons therefor He urged that the order in question is against the provisions of section

514. Cr.P.C., therefore, the same is unsustainable.

5. On the other hand, learned counsel for the complainant argued that the order, dated 2-7-1998 implidely contained the forfeiture, as the learned Court had ordered, vide order, date 24-2-1998, for opening of a separate file under section

514. Cr.P.C. He submitted that the sureties were close associates of the accused therefore, they cannot argue that they had stood sureties on humanitarian grounds.

6. The learned Assistant Advocate-General arguing for the State, submitted that admittedly the order, dated 2-7-1998 has not been passed after observing the procedure laid down under section 514, Cr.P.C., but it can be inferred from the order, dated 24-2-1998 that the Additional Sessions Judge implidely forfeited the bond by directing the Moharrir that separate file be opened under section 514, Cr.P.C.

7. After hearing the learned counsel for the parties and going through record of the case, it is obvious that the learned Additional Sessions Judge in his order, dated 2-7-1998 has neither said even a word about the forfeiture of the bail bond-nor has given any reason therefor. As far directions to the Moharrir for opening of a separate file under section 514, Cr.P.C. in order, dated 24-2-1998 is concerned, there is nothing in it to suggest that the Court while recalling the ad interim pre-arrest bail forfeited the bail bond. Under section 514, Cr.P.C. when a bond has been given for appearance before a Court and the accused disappears on a given data while on bail, the Court has to first forfeit the bond and has to record reasons therefor and thereafter, to call upon the sureties to pay the penalty thereof, or to show cause why it should not be paid. In this case admittedly, the bond was not forfeited, nor any order was recorded to that effect before issuance of show-cause notice to the sureties, hence show cause notices were violative of the aforesaid provisions of law and, thus, the A order, dated 2-7-1998 is unsustainable. The subsequent proceedings carried out on the basis of the aforesaid illegal order has no foundation, therefore, the same have also to fall to the ground.

8. Consequently, Criminal Appeals Nos.20 to 22 and Criminal Revisions Nos.7 to 9 of 1998 are accepted and impugned orders, dated 2-7-1998 and B 18-7-1998 are set aside, whereas the Criminal Revisions Nos.4 to 6 filed by the complainant are dismissed. N.H.Q./262/P Order accordingly.