2002 P Cr (PLP)

In this criminal revision petition orders, dated 5‑2‑2002, 8‑3‑2002 and 29‑3‑2002 passed by Additional Sessions Judge, Layyah have been assailed whereby the petitioner was ordered to be sent Layyah under sections 13 and 14 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.

3. The said accused absented from the trial Court whereupon proceedings against the petitioner were taken under section 514, Cr.P.C. Bond furnished by the petitioner in the sum of Rs.30,000 was forfeited vide order, dated 5‑2‑2002 by Additional Sessions Judge; Layyah (respondent No. 1).

4. It is contended by the learned counsel for the petitioner that the aforesaid orders and the proceedings conducted thereafter by the trial Court are illegal and without jurisdiction on the ground that the petitioner was not served with any show‑cause notice and the order was passed in his absence. He was, therefore, condemned unheard; that wife of the petitioner had died on 23‑6‑2000; that the petitioner was not given any chance to produce the accused before the Court; that he stood as surety for the said accused for the sake of God Almighty and that he is a poor person and is unable to pay the amount of penalty.

5. A perusal of Annexure "B" which also comprises of the order‑sheet of the trial Court shows that notice under section 514, Cr.P.C. was duly issued by the trial Court, the petitioner (surety) had refused to accept service thereof hence the surety bond executed by him was forfeited in favour of the State and warrant was issued to the District Collector, Layyah for recovering the forfeited amount. This order was made on 20‑6‑2001. thereafter, on subsequent dates reminders were issued to the Collector for doing the needful. The order‑sheet further shows that on 30‑11‑2001 Sardar Abdul Aziz Khan, Advocate had appeared before the trial Court on behalf of the surety. Till that date needful was not done by the District Collector hence fresh warrants were ordered to be sent to him for attaching the property of the petitioner for recovering the forfeited amount. On the subsequent date viz 25‑1‑2001 no one‑ appeared on behalf of the surety and a report was received to the effect that the forfeited amount cannot be recovered from the property .of the accused. On that date non‑bailable warrants were issued for the arrest of the petitioner and a letter was written to the District Officer, Revenue, Layyah for recovering the said amount from the movable property belonging to the petitioner. A report was again received that recovery could not be effected from the movable property hence it was ordered that the petitioner be sent to civil prison for six months and warrant in that behalf was issued. On the next date viz. 8‑3‑2002 the said warrant was not found to be executed hence reminder was issued for 29‑3‑2002 and thereafter for 25‑4‑2002.

6. From a perusal of Annexure "B", it is obvious that the petitioner had the knowledge about proceedings against him before 30‑11‑2001 as on that date he was represented by a counsel in the trial Court. It is worth notice that it is not mentioned in this petition that on the aforesaid date he did not engage Sardar Abdul Aziz Khan, Advocate for appearing and representing him before the trial Court. Therefore, even if it be presumed that the petitioner was not served, he had the knowledge of the proceedings against him under section 514 of the Cr.P.C. on 30‑11‑2001. Order for sending him to civil prison was passed thereafter on 5‑2‑2002, He neither produced the accused nor requested the trial Court to give him time for producing the accused. A period of about five months had lapsed since 30‑11‑2001 on which date he was represented before the Court and he virtually did nothing during this period for producing the accused before the Court.

7. For whatever reason he had become surety, he was under legal obligation to discharge his liability under the bail bond furnished by him. After undertaking the liability himself it does not lie in his mouth to say that he is a poor person and cannot pay the amount of bond executed by him.

8. A perusal of Annexure "B", shows that all the legal formalities were observed by the trial Court before issuing the order for imprisonment of the petitioner. The petitioner's wife had died on 23‑6‑2000 i.e. prior to 30‑11‑2001 on which date the petitioner was definitely aware about the proceedings being taken against him. The impugned orders in my view ware correct, proper and legal and do not call for any interference by way of revision. The petition is accordingly dismissed in limine. Copy of this order be sent to the trial Court. H.B.T./M‑1282/L Revision petition dismissed.