P L D 2009 Lahore 132 (PLP)

KAZIM ALI MALIK, J.

Muhammad Boota, accused made an application for anticipatory bail on 3-8-2001 before a learned Additional Sessions-Judge, Burewala, District Vehari in a case F.I.R. No.191/2001 registered with Police Station Ghagoo, District Vehari. The accused was allowed interim pre-arrest bail in the sum of Rs.50,000 with one surety in the like amount vide order dated 3-8-2001 with a direction to continue his appearance on each and every date of hearing till final disposal for the bail petition. The bail petition was adjourned to 20-8-2001, 20-9-2001 and 11-10-2001 when the accused remained present before the Court. On 23-10-2001 the accused absented himself without any information to the Court upon which the bail petition was dismissed in default and a notice to the surety under section 514, Cr.P.C. was issued for 4-12-2001 when the petitioner-surety did not appear. The learned Additional Sessions Judge forfeited the bail bond in favour of the State and imposed penalty of Rs.25,000 upon him. The learned Additional Sessions Judge also directed the concerned Tehsildar to attach and sell standing crops of the surety and auction them in order to realize the forfeited amount. The Tehsildar did not auction or attach the crops of the surety which had been reaped by him. Resultantly, a show-cause notice was issued to the Tehsildar. Thereafter the matter was repeatedly adjourned without passing any legal and effective order. However, proceedings against the Tehsildar, who did not take required steps for auction of the attached crops, are still in progress.

2. At the very outset I must say without any fear of contradiction that the learned Additional Sessions Judge adopted a self-styled procedure unwarranted in law. A bare perusal of the provisions of section 514, Cr.P.C. would show that forfeiture of bail bond in favour of the State on the basis of evidence and proof is a condition precedent to call upon the surety to pay penalty or to show cause as to why it should not be paid. The learned Additional Sessions Judge called upon the surety to show cause without forfeiting bail bond. For facility of reference the order of the learned Additional Sessions Judge is reproduced below:-- "The petitioner is absent. Hence, the instant bail petition is dismissed in default. Notice to the surety under section 514, Cr.P.C. be issued for 4-12-2001." The order dated 23-10-2001 reproduced above being violative of mandatory provisions of section 514, Cr.P.C. is not sustainable.

3. On 4-12-2001 the learned Additional Sessions Judge forfeited the bail bond in favour of the State, which he should have forfeited before issuance of show-cause notice and order for attachment and sale of the standing crops owned by the surety. Subsection (2) to section 514, Cr.P.C. clearly lays down that the court may proceed to recover the forfeited amount by issuance of a warrant for the attachment and sale of the movable property belonging to the surety. Movable property stands defined in section 22 of the Pakistan Penal Code, 1860 which excludes land and things attached to the earth from the definition of movable property. Soil and all the component parts of the soil and crops sown unless reaped fall within the ambit of immovable property. The learned Additional Sessions Judge was, therefore, not competent to direct the Tehsildar to attach and sell immovable property of the surety in utter disregard of the provisions of section 514(2), Cr.P.C.

4. The accused of the case was allowed interim pre-arrest bail on 3-8-2001 and proceedings against the petitioner, who stood surety for him in the bail petition, are still in progress. For two reasons I feel inclined to allow this petition. Firstly, the orders of the learned Additional Sessions Judge are violative of law. Secondly, the surety has suffered a lot at the hands of the learned Additional Sessions Judge and the Revenue staff. I, therefore, all this petition, set aside the impugned orders and drop the proceedings against the surety. H.B.T./M-472/L Petition allowed.