2020 P Cr (PLP)

FAHIM AHMED SIDDIQUI, J.

Through the instant criminal revision application, the legality and proprietary of the order dated 20.04.2017 passed by the learned 1st Additional Sessions Judge, Karachi East, whereby the application of the Applicant/Surety for return of surety was declined.

2. The facts, in brief, are that the Applicant stood surety for accused Abdullah, to whom bail was granted in Crime No.927 of 2009, under sections 376 and 511, P.P.C. of Police Station Korangi Industrial Area. Karachi. After release on bail, the accused did not appear and became absconder, as such notice was issued against the Applicant/Surety and proceedings under sections 87 and 88, Cr.P.C. were ordered to be initiated. Ultimately the accused was declared proclaimed offender and case file was place in dormant. Meanwhile, the Applicant/Surety appeared before the trial Court with an application for release of surety as well as with an intimation that the accused is in custody some other case. The trial Court called report from the jail authorities and subsequently Production Order of the accused was issued. However, the request for return of surety was declined through the impugned order.

3. In the impugned order, the contention of the learned trial Court is that since the Applicant/Surety remained failed to produce the accused before the trial Court and a notice under section 514, Cr.P.C. was issued to which the Applicant/Surety did not file any reply, hence his surety amount was forfeited.

4. Learned counsel for the Applicant/Surety submits that the accused became absconder but as soon as the Applicant/Surety came to know that he is arrested in some other case, he immediately approached the trial Court and filed an application. According to him, on his application, the trial Court issued Production Order of the accused and then proceeded in the case, which according to him, was ended in acquittal of the accused. Learned counsel has filed copies of diary-sheets. NBWs of accused notice under section 514, Cr.P.C. and some other documents as well as the judgment of the learned trial Court under his statement. Regarding non-appearance of accused contention of the learned counsel for the Applicant/Surety is that he could not appear due to ailment and he also filed such medical certificate of the accused. He further submits that subsequently, the accused faced trial and acquitted from the trial Court Learned counsel placed reliance on the case of Ghulam Shabbir Solangi v. The State (1999 PCr.LJ 85).

5. The learned Prosecutor opposes the grant of instant criminal revision application by submitting that the order of the learned trial Court is proper.

6. I have heard the arguments and have gone through the relevant record.

7. The diary sheets indicate that on 10.07.2013, accused was not in attendance and he remained absent on 15.08.2013, 10.09.2013 and 23.10.2013. On 28.11.2013, Process Server submitted report regarding the service of NBWs and notice to surely, whereupon the trial Court declared the accused as absconder and his bail was cancelled and surety was forfeited, besides proclamation under sections 87 and 88, Cr.P.C. were also issued and on 13.12.2013, the case was put in dormant. In the instant matter, as per diary sheet, on 28.11.2013, solely on the basis of the report of the Process Server, the accused was declared absconder and surety was forfeited. I am of the view that the learned trial Court has committed a grave illegality in this respect. The accused cannot be declared absconder unless the requirements under section 87, Cr.P.C. should be fulfilled. As per section 87(1), Cr.P.C. after issuance of proclamation under sections 87 and 88, Cr.P.C., the trial Court has to fix the next date of hearing for the appearance of the absconding accused, which should not be less than one month from the date of issuance of such proclamation. When the accused is declared proclaimed offender after passing such time then an adverse order against the surety may be passed. However, in the instant matter, instead of waiting for one month time, the accused was declared absconder first and then proceedings under sections 87 and 88, Cr.P.C. were initiated and on 13.12.2013 i.e. within a period of one month the trial Court came to satisfaction that the requirements of proclamation under sections 87 and 88, Cr.P.C. have been fulfilled and the accused was declared proclaimed offender and case file was placed in dormant. Although proclamation itself is not proper, but forfeiture of surety on the earlier date seems to be improper on another score that the notice under section 514, Cr.P.C., copy of which is filed by the learned counsel for the Applicant under his statement, indicates that such notice was issued to Surety namely, Jahangir, while the name of the Surety is Lal Muhammad. In such a situation when the name of the Surety is wrongly mentioned by the learned trial Court, it cannot be considered that it has ever been issued.

8. I, therefore, consider that the order of the learned trial Court is not proper, as the proper notice to surety was never issued, besides the surety amount was forfeited without declaring the accused proclaimed offender. Hence the instant criminal revision application is allowed and the learned trail Court is directed to release the surety amount to the Applicant/Surety proper verification and identification. MQ/L-10/Sindh Revision allowed.