1977 P Cr (PLP)

"I, Mohammad son of Ali Muhammad, Proprietor of Ration Shop No. 2052 R/O. 152‑G, hereby declare myself (or we jointly and severally declare ourselves and each of us) surety (or sureties) for the said (name) Ashraf Ali son of Muhammad that he shall attend at the Court of Sessions Karachi on every day of the preliminary enquiry into the offence charged against him, and, should the case be sent for trial by the court of Sessions, that he shall be, and appear before the said Court to answer the charge against him, and in case of his making default therein, I bind myself (or we bind ourselves) to forfeit to Government of Pakistan the sum of Rupees ten thou sands only. Dated his l8‑9‑'

72. Mohammad Ali. (Signature). (Sd.) (Pakistan Special Police & Establishment S P F (SBB), Karachi." The case against Ashraf Ali is said to have been sent up before the Additional Sessions Judge and Foreign Exchange Tribunal, Karachi, but as Ashraf Ali did not appear before that Tribunal, a notice was issued to the appellant to produce him. Admittedly the appellant could not and did not produce his son Ashraf Ali although he took time from the above said Tri bunal for this purpose on several dates, as the reasons for the absence of Ashraf Ali given were that he was out of Pakistan and that correspondence with the State Bank was being made by him for grant of permission for the remittance of Foreign Exchange from Dubai. However, the above‑said Tribunal passed the final orders on 18‑11‑74, as stated above by which the penalty was to the extent of one‑fourth of the amount. The learned counsel for the applicant contended before me that the above‑said order of the Tribunal is not legal as the same has been passed without following the mandatory procedure prescribed under section 514 of the Cr. P. Code, which requires a prior forfeiture of the bond. According to him, the grounds considered for taking the lenient view in the matter and reducing the amount of penalty, are also in fact relatable to Ashraf Ali, who is the accused and are not in any manner relatable to the applicant who executed the bond and who was being penalised for the non‑compliance of the same. By the impugned order dated 18‑11‑74, the Additional Sessions Judge and Foreign Exchange Tribunal had considered the application made by the applicant in reply to the show‑cause notice given to him for producing the accused Ashraf Ali failing which the bond would be forfeited and he would be liable to pay the amount, but in the submission of the learned counsel, he did not forfeit the bond itself and had simply proceeded to con sider the grounds for showing leniency and consequently fixed the final penalty. He relied upon Sunwan and another v. The State (P L D 1965 Kar. 516) wherein cons truing section 514, Cr. P. C., it was observed: ‑ "It is plain from a perusal of the language of this section that it is incumbent on a Court to first declare the bond forfeit and to record the grounds for such a finding before calling upon the surety to pay the penalty thereof or to show cause why it should not be paid." This case was followed in Willayat Hussain v. The State (P L D 1967 Kar. 82) and fully supports the contentions, of the learned counsel, but he raised yet another objection to the validity of the order. According to him the language of the bond executed by the applicant before the Special Police Establishment did not require the attendance or the production of the accused Ashraf Ali before the Additional Sessions Judge and Foreign Exchange Tribunal. What the applicant had undertaken to do was to see that the accused Asraf Ali atten ded the Court of Sessions at Karachi and no other Court. The Additional Sessions Judge in the present case was the Foreign Exchange Tribunal which by no means could be equated with the Court of Sessions at Karachi, and as the bond did not secure the attendance of the applicant before any other Court or authority, including the Additional Sessions Judge and Foreign Exchange Tribunal, the latter had no authority to even forfeit the bond. His penalizing the applicant on the basis of the bond in this case was thus not an act, which could be warranted by the provisions of the Criminal Procedure Code. To support his contention the learned counsel relied upon Haji Abdul Ghani v. The State (P L D 1970 Kar. 46) where also the case of forfeiture of a bond under section 514, Cr. P. Code was under consideration; and as the forfeiture was ordered by a transferee Court, the language of section 499 of the Cr. P. Code which deals with the execution of the bond itself was interpreted and it was observed: "Thus this subsection clearly means that the bond must expressly provide for such contingencies. It not only lays down that the time and place be mentioned in the bond but it also lays down that the bond may provide for the appearance in any other Court which is obviously intended to meet the eventuality on the transfer of the case to another Court. It, therefore, follows that if the obligation to appear in the Court to which the case may be transferred has not been specified in the bond; the surety cannot be penalised for the failure of the accused to appear in that Court. In the absence of a provision in the bond for such an eventuality, the bond effected its purpose when the case was transferred to Sessions Court, Mirpurkhas." The learned counsel thus contended, on the basis of the above‑mentioned authorities, that the impugned order was not valid as in the first place it was not an order of foreiture of a bond, and in the second place the Additional Sessions Judge and Foreign Exchange Tribunal had not power to forfeit the bond in this case. Mr. Manzoor Hussain, the learned counsel, who appeared for the State, has very fairly conceded to this position, in view of the decision of this, Court cited, and in these circumstances this application is accepted and the impugned order set aside. Revision allowed.