1998 P Cr (PLP)

Anwar Ansari for the State. Date of hearing: 20th February, 1998. Through this criminal revision application, the order passed by the learned IInd Additional Sessions Judge, Mirpurkhas in Sessions Case No. 163 of 1994 has been challenged. The facts, as reflected in the present Revision Application, are that in the aforementioned Sessions Case applicant Mir Dittal Khan had stood surety for accused Niaz Ahmed. It seems that accused after having been granted bail, started to abstain from the proceedings before the learned trial Court. Consequently, notices were issued to the applicant for production of the accused and vide order, dated 23rd July, 1997, the applicant was penalized in terms of surety amount to be recovered from him within a period of 15 days and in the event the amount is not recoverable then attachment warrants for recovery were ordered to be issued. By consent of the learned counsel appearing before me, the Miscellaneous Application No.47 of 1998 is taken up alongwith the main revision application for regular hearing. The learned counsel for the applicant has contended that hearing was denied to the applicant and once recovery proceedings were initiated, the applicant had filed an application under section 514(5) of the Cr.P.C. seeking orders passed to be recalled. Such application was declined and orders were not recalled. The learned counsel for the applicant has further contended that he was not served with the notice nor was he heard by the learned trial Court and, therefore, he could not be subjected to the forfeiture of the entire amount of surety in the sum of Rs.25,

000. In fact these were the basic considerations on which the above revision application was admitted to regular hearing. The learned counsel has invited my attention to the aspect that, in the first instance, notice to the applicant was issued on 20‑4‑1997, where after the statement of the process server was recorded by the learned trial Court on 23‑7‑1997 and no notice whatsoever was issued to the surety, whereas on 23‑7‑1997 attachment warrants were issued. The learned counsel has filed certified copy of an application (Annexure "C" page 23) which for the purposes of ready reference is reproduced hereunder:‑‑ "It is prayed that this Honourable Court that I have come to know that above named accused is not attending the hearing in above case, therefore, I am producing the above named accused before this Honourable Court. The prayer is made in the interest of justice. " Examining the aforequoted application, it would be seen that the present applicant had volunteered and had produced the accused persons for whom he stood surety in Court, consequent to which the accused Niaz Ahmed' '' was taken into custody and was accordingly remanded. As such, prima facie, the applicant by virtue of being surety for accused has been able to shoulder his liability and record reveals that the applicant was not' served with the notice of the Court in terms of forfeiture of entire surety amount in the sum of Rs.25,

000. This position of voluntarily producing the accused not being heard by the '.earned trial Court, not being served with the notice of the Court stands duly confirmed by the learned State Counsel appearing in the above. revision application. It seems that the learned trial Court has passed an order on the premise that he could not alter, modify, recall an order in respect of forfeiture of the entire surety amount passed by his learned predecessor. I am of the considered opinion that the applicant was not served and, therefore, he cannot be saddled with the liability of paying the total amount of Rs.25,000 especially in view of his conduct of having produced the accused person before the Court, consequent to which the accused was taken into custody. Yet another aspect is that attachment warrants for recovery of the amount were issued against the applicant without notices having been served upon him, in the first instance. Hence with the concession of the learned State Counsel the present revision succeed and is, therefore, allowed. Listed Miscellaneous Application No.47 of 1998 is also disposed of in view of the main revision application having been allowed by me. Revision application stands disposed of. H.B.T./M‑290/K Revision allowed.