2017 PLP 971 (YLR)

IKRAMULLAH KHAN, J.

Through the instant appeal, appellant Imtiaz has challenged the impugned judgment of the learned Sessions Judge Haripur dated 01.02.2016 whereby the bail bonds, furnished by him was forfeited in case FIR No. 386 dated 04.05.2012 under section 324, P.P.C. read with section 13 of the Arms Ordinance at Police Station City Haripur.

2. Learned counsel for the appellant contended that the impugned judgment, being against law and facts on record, may be set-aside.

3. On the other hand, the learned Assistant Advocate General argued that appellant had stood surety for appearance of the accused in the case ibid, so proceeding under Section 514, Cr.P.C. were initiated against him according to law and appellant was bound to produce the accused, but failed to fulfill his responsibility as such no other option was available to learned trial court, but only to forfeit the bail bonds, furnished by him.

4. I have heard learned counsel for the appellant and the learned Assistant Advocate General appearing on behalf of the State and gone through the record.

5. The record reveals that appellant along with other person namely, Asad Ali stood sureties of one accused namely, Malik Sheraz in case FIR No. 386 dated 04.05.2012 under Section 324, P.P.C. read with Section 13 Arms Ordinance.

6. The record further transpires that accused thereafter release on bail was sent for trial before the learned trial court in the above mentioned case. On 17.06.2014, the accused effected compromise with the complainant of the case and on acceptance, the learned Sessions Judge vide its judgment dated 17.06.2014 acquitted the accused and discharged the sureties therefrom their liabilities. But, later on another report under section 173, Cr.P.C. under Section 13 Arms Ordinance was put in court, in which the accused did not appear. He was proceeded under section 512, Cr.P.C. and at the same trial, appellant was put on notice to produce the accused, but on his failure to do the same, appellant was ordered by the learned Sessions Judge Haripur to be proceeded under section 514, Cr.P.C. vide order dated 02.12.2015.

7. On 05.12.2015, the learned trial court forfeited the bail bonds of the appellant and show cause notice for recovery of Rs.80,000/- was issued. On 01.02.2016 the learned trial court, by its impugned judgment of even date, passed order to the appellant to pay the amount of bail bonds or in default to undergo simple imprisonment for six (06) months.

8. The record of the case FIR No.386 dated 04.05.2012 under section 324, P.P.C. read with section 13 Arms Ordinance shows that the learned trial court while rendering its judgment dated 02.12.2015 has acquitted the accused and had discharged the sureties therefrom their liabilities. No any order has been passed by the learned trial court to bifurcate the case under Section 13 of the Arms Ordinance.

9. The proceeding under Section 13 Arms Ordinance by the learned Sessions Judge, without taking bail bond for appearance of the accused, itself open to many legal proposition as appellant had never submitted fresh bail bonds while the previous one furnished in case FIR No. 386 have already been discharged.

10. Whether a Sessions Judge can take direct cognizance of an offence exclusively triable by the court of a Magistrate and when once an accused is acquitted in case without first bifurcating the offences and sending back the case to the court of Magistrate, who was the competent court, are the questions to be answered during the second trial in the same case FIR No. 386 at appropriate stage, but once a person is discharged from the liability by clear and unambiguous judgment, then he could not be later on held responsible for to force him to make certain appearance of an accused who too had acquitted in the same case FIR. No one will be punished therefor any fault or act of the court.

11. The accused, thereafter acquittal in case FIR No. 386 has proceeded abroad for earning his livelihood and could not be possible for the appellant to make certain his appearance before the court, while, he was also not bound by any legal instrument or compulsion to produce the accused, who had acquitted in the case.

12. Therefore, for the reasons mentioned hereinabove, this appeal is accepted and consequently, the impugned judgment is set-aside and the whole proceedings under section 514, Cr.P.C. are declared against the law. However, the learned trial court, if otherwise having jurisdiction may proceed under section 512, Cr.P.C. against the accused and may continue the trial in absentia of the accused in accordance with law. JK/301/P Appeal accepted.