1984 PCr (PLP)

CH. RAHIM DAD KHAN. C. J.‑A case, against the present appellants, was registered on 16‑5‑1976, at Police Station‑Koth under section 307 read with section 34, A. P. C. and section 15 of Islamic Penal Laws Act. The accused appellants were admitted to interim bail by the High Court, on 22‑5‑19 , subject to their execution of bail bonds with sureties in the sum Rs. 2,000 each for their appearance on 26‑5‑

76. They failed to appear on the said date and consequently the learned Chief Justice of the High Court, who granted the interim bails, passed an order forfeiting the amount of the bonds as directed issuance of a notice to the sureties as well as to the accused for showing cause as to why the amount so forfeited should not be recovered from them. Subsequently on appellants' failure to appear in the Court the impugned order for recovery of the amount was passed on 28‑10‑

76. Meanwhile the parties entered into a compromise whereupon the accused were discharged.

2. It has been submitted that the High Court was not justified in making the rule absolute without due service of the notice. The order for recovery has been made under section 514, Criminal Procedure Code which lays down :‑ "(1) Wherever it is proved to the satisfaction of the Court by which a bond under this Code has been taken, or of the Court of a Magistrate of the first class, or, when the bond is for appearance before a Court, to the satisfaction of such Court ; That such bond has been forfeited, the Court shall record the grounds of such proof, and may call upon any person bound by such bond to pay the penalty thereof, or to show cause why it should not be paid. (2) If sufficient cause is not shown and the penalty is not paid, the Court may proceed to recover the same by issuing a warrant for' the attachment and sale of the movable property belonging to such person or his estate if he be dead. (3)................................................................... ............... (4)................................................................................. (5) ................................................................................. (6).................................................................................. (7)....................................................... ......................." It is quite plain that section 514 Criminal Procedure Code indicates that three steps are to be taken,' namely, (i) it must be proved to the satisfaction of the Court that the bond has been forfeited, whereupon the Court is to record the grounds of such proof ; (ii) the Court on being 'satisfied as aforesaid, may call upon the person bound by such bond to pay penalty thereof or to show cause why it should not be paid ; and (iii) if sufficient cause is not shown and penalty is not paid the Court may proceed to recover the amount so forfeited by issuing a warrant for attachment and sale of the movable property belonging to such person or his estate. The High Court recorded the grounds of the proof for forfeiture on 26‑5‑1976 for the payment of the penalty by the obligor when the accused failed to appear on the date for which they were required to execute the bonds and recognizance. A show‑cause notice was also directed to be issued which, in fact, was issued in compliance with the order. Thus it would appear that the first two steps were properly taken on the due dates by the High Court. However,, it so happened in the present case that the constable who went to serve the notice on the appellants could not find them (appellants) on their normal place of residence. They had gone to Karachi. Consequently, on securing a report of the father of one of the appellants to that effect, the notice was returned to the High Court with information so obtained. No attempt was made by the constable to secure substituted service as there was no order for substituted service. But the learned Chief Justice, perhaps taking the information as substituted service, made the rule absolute.

3. It has been submitted that the appellants had no knowledge of the order, in question because notice was not directly served upon them. Obviously there is much substance in his submission because service of the process means bringing to the knowledge of the person concerned the' summons or notice in a legal action either by personal service, i e. by~ the actual delivery of the process to the person concerned or by sub stituted service, i.e. delivery of the notice etc. on such other person who is likely to bring it to the knowledge of the person concerned or by publication. In any case, knowledge actual or constructive is the necessary ingredient of the service without which subsequent proceeding cannot obtain legal sanctity. Criminal Procedure Code itself has pres cribed the mode of the service of the summon, notice etc. which provi sions may be referred here for clarity The provisions relating to the service of summons etc. are contained in sections 68 to 74, Criminal Pro cedure Code. Section 69, Cr. P. C. lays down that a summons shall, if practicable, be served personally. Section 70 lays' down that where a person summoned cannot, by the exercise of due diligence, be found, the summons may be served by leaving one of the duplicate for him with some adult male member of his family or in presidency town with his servant residing with him. Section 71 provides that if service in the manner mentioned in sections 69 and 70, Criminal Procedure Code can not, by exercise of the due diligence be effected, summons shall be served by affixing it on some conspicuous part of the house etc. In the present case, summons could not be personally served upon the appel lants. But no service was effected in the manner provided by section 70 of the Criminal Procedure Code. As neither summons was served on the male member of the family nor a copy was left for the informa tion of the person proceeded against, it would therefore, be said that) the impugned order was made without notice being duly served upon the appellants and without the knowledge of the order requiring the appellants to appear before the Court to show cause why the amount should not be recovered. Besides, the expression "may call upon any person bound by such bond" used in section 514, Criminal Procedure Code also clearly implies serving upon such person, a notice containing the informa tion i.e., summoning of some one by means of spoken words or written notice, to appear in the Court. In other words it amounts to bringing to the knowledge of the person concerned, the summons or notice in a legal action, and where it is not brought to the notice, obviously further action i.e., distress warrant issued by the Court without the knowledge of the person proceeded against cannot be held to be legal one. More over, section 514, Criminal Procedure Code clearly contemplates that final decision, regarding recovery of the amount of the bond that has been forfeited, should be made after issue of notice to show cause why the amount should not be paid. Where show‑cause notice is issued but without such show‑cause notice being duly served, an order for recovery is made, such an order is not only contrary to the wholesome provisions of section 514, Cr. P. C. but is also in violation of the principle of natural justice contained in the Latin maxim : 'audi alteram partem' which, in fact, stems out from the principle of Islamic Law. This Court has already observed in Muhammad. Shafique v. The State (P L D 1977 S C (AJ & K) 1), at page 6, that thus, from what has been said heretofore, it would appear that this rule of natural justice stems from Islamic Jurisprudence. In a Muslim society, it is to be complied with as a command like any other Qur anic Laws . We reiterate the above view and hold that an order passed by any Court without complying with this principle is liable to cause miscarriage of justice. We therefore, accepting the appeal set aside the impugned order passed. By the Chief Justice High Court on 28‑10‑1976 and remand the case wit the direction that it should be restored on its original number and decided afresh in accordance with law. Appeal accepted.