2017 PLP 1441 (YLR)

FARRUKH GULZAR AWAN, J.--Through the instant revision petition, in the terms of Section 435/439 Cr.P.C., Ghulam Nazik petitioner/surety has called in question the validity and legality of order dated 22.9.2015 passed by the learned Additional Sessions Judge, Jatoi whereby the penalty of Rs.500,000/- was imposed upon him and he was remitted to civil prison for the recovery of said amount.

2. Precisely, the petitioner stood surety for one Sagheer Ahmad accused in case FIR No.208 dated 21.5.2011 under Sections 302/337-A(ii)/148/149, P.P.C. registered at Police Station Shaher Sultan District Muzaffargarh and during trial proceedings said Sagheer Ahmad accused absented himself from the Court and the learned trial Court after issuing show-cause notice to the petitioner/surety, imposed the penalty of Rs.500,000/- and lodged him in civil prison vide impugned order dated 22.9.2015.

3. Arguments pro and contra have been heard.

4. Perusal of available record reveals that the learned trial Court issued show-cause notice to the petitioner/surety, who was directed to submit reply to show-cause notice on the same day, which was not submitted and the learned trial Court proceeded to impose penalty of Rs.500,000/- and the petitioner was lodged in civil prison for the recovery of aforesaid amount. Section 514, Cr.P.C. contemplates that the Court shall record the grounds of proof to the effect that such bond has been forfeited and call upon the surety to pay the penalty or to show-cause why it should not be paid and then the Court may proceed to recover the same by issuing a warrant for attachment and sale of immovable property. The procedure for regulating forfeiture of bail bonds has been enshrined in case titled "Naseer Muhammad v. The State (1996 PCr.LJ 860 [Karachi])", which reads as under:- "(i) It must be proved to the satisfaction of the Court that a bond has been forfeited. (ii) The Court must record grounds for such proof of forfeiture. (iii) A show-cause notice should be issued by the Court to the surety why penalty should not be paid for such breach. (iv) If sufficient cause is not shown, or if the penalty is not paid the Court may proceed to recover the same. (v) The recovery can be made by issuing a warrant for attachment and sale of the movable property belonging to surety. " Any order in contravention of law, cannot be termed as proper judicial order. Reliance is placed on case titled "M. Anayat v. The State (PLD 1995 Lahore 569)", which reads as under:-- "Court is guided by the provisions of law and has to use its utmost skill and prudence to make a judicial order within the ambit of the provisions of law. Any order outside or contravening such provisions of law cannot be termed as proper judicial order." Learned trial Court issued show-cause notice to the petitioner on 22.9.2015 and proceeded to impose aforesaid penalty and on the same day and lodged him in civil prison for the recovery of aforesaid amount in haste without affording sufficient/fair opportunity. Learned trial Court neither determined as to whether the petitioner/ surety got any benevolence or got the accused released on bail with some ulterior motive, imposed the full penalty of Rs.500,000/- nor adopted procedure step by step as provided under Section 514, Cr.P.C. and has committed illegality and material irregularity while passing impugned order and did not adopt the procedure of issuing warrant for the attachment and sale of the immovable property belonging to the surety. In view of above, the petition in hand is allowed, impugned order dated 22.9.2015 is set aside and the case is remanded back to the learned trial Court with the direction to adopt the procedure as provided under Section 514 Cr.P.C. and then to proceed further in accordance with law. WA/G-9/L Petition allowed.