P L D 2012 Lahore 73 (PLP)

SAGHEER AHMAD QADRI, J.

Petitioner Zafar Ali son of Wahid Bakhsh stood surety to the tune of Rs:3,00,000 for Gulfam Shehzad son of Muhammad Suleman an accused in case F.I.R. No. 98 dated 15-3-2008 registered under sections 302, 34 and 109, P.P.C. at Police Station Chowk Azam District Layyah pending in the Court of learned Additional Sessions Judge, Layyah. Trial of the said case was on its last stage when on 17-3-2011 said Gulfam Shehzad accused absented himself from the Court. Learned Addl. Sessions Judge on the same day issued show-cause notice to the petitioner-surety to appear and explain why the full amount of the surety bond may not be recovered from him and matter was adjourned for the very next day i.e. 18-3-2011. Learned trial Court on the next date of hearing declared Gulfom Shehzad accused as P.O, separated his case from the other co-accused and separate proceedings under section 514 Cr.P.C. were initiated against the petitioner surety petitioner according to the order sheet dated 18-3-2011 an adjournment to submit the written reply of the show-cause notice and the learned trial Court adjourned the proceedings for the next day i.e. 19-3-2011, on which date petitioner-surety submitted his written reply mentioning the facts that he stood surety on humanitarian grounds for the accused Gulfam Shehzad and he undertook to produce him in a short period of time. He also submitted that he is a poor person and had not gained any monetary benefit while submitting surety bonds on behalf of the accused, therefore, lenient view be taken against him. Learned Addl. Sessions Judge however on the same day i.e. 19-3-2011 did not find the explanation submitted by the petitioner satisfactory and passed the following order:-- "Present: Surety with counsel. Learned DDPP for the State The surety has submitted written reply of the notice which has been perused. I see no reason to take any lenient view in this case. Hence full penalty of Rs.3,00,000 is imposed upon the surety. He is directed to deposit the imposed amount till the next date of hearing i.e. 4-4-2011. Announced: (Sd) 19-3-2011 Sessions Judge Layyah" Feeling aggrieved petitioner has preferred this revision petition.

2. Learned counsel for the petitioner argued that if the record is seen, petitioner stood surety for Gulfam Shehzad on 30-7-2009. The accused Gulfam Shehzad remained on appearing before the learned trial Court up till 15-3-2011 and he, however, on 17-3-2011 when the case was fixed for recording the defence evidence did not appear and learned trial Court issued his non-bailable warrants of arrest and also issued show-cause notice under section 514, Cr.P.C. to the petitioner-surety to explain why the surety bond may not be confiscated in favour of the State. Learned counsel argued that no proper opportunity was granted to the petitioner by the learned trial Court and impugned order was passed in hasty manner whereby full amount was directed to be paid by the petitioner. Learned counsel while submitting certified copy of an application dated 25-4-2011 submitted by Gulfam Shehzad the accused argued that the petitioner-surety searched out the accused and produced him in the learned trial Court on 26-4-2011 whereby he was taken into custody and sent to judicial lock up and now he is facing the trial. Learned counsel argued that the impugned order whereby learned trial Court passed the forfeiture order and directed payment of the surety amount was hasty one. Had the learned trial Court been provided an opportunity to the petitioner-surety he could search out and make the arrangements for appearance of the accused. However, such opportunity was not granted and the impugned order was passed which is otherwise illegal, without any lawful justification; that the petitioner has fulfilled his liability/responsibility while producing the accused for whom he stood surety, therefore, in these circumstances, impugned order is liable to be set aside.

3. Learned D.P.-G., on the other hand, however; opposed this petition on the grounds that as petitioner stood surety for the accused Gulfam Shehzad who absented himself at the last stage of the trial with the intention just to create hurdle in conclusion of the trial as due to the absence of the accused and his non-appearance the condition of bail bond whereby petitioner undertook to produce the accused during the trial was violated thus bonds were rightly forfeited and penalty was imposed in accordance with law and that there is no ground for taking lenient view thus the impugned order is perfectly lawful and justified. Prayed that this petition be dismissed

4. I have considered the contentions raised by learned counsel for the parties and have gone through the record.

5. Admittedly, petitioner according to the record submitted bail bonds worth Rs:3,00,000 with the undertaking that accused Gulfam Shehzad shall appear on each and every date of hearing in the learned trial Court till the conclusion of the trial. If the order sheet of the learned trial Court is seen, as annexed with the file, the accused remained on appearing in the learned trial Court till 15-3-2011, however, on 17-3-2011 when case was fixed for defence evidence he was found absent by the learned trial Court and his non-bailable warrants of arrest were issued and at the same time show-cause notice was also issued to the surety i.e. present petitioner. Procedure for forfeiture of bonds is provided in Chapter-XLII of Cr.P.C. under section 514, wherein it is provided:-- (1) Whenever 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) The Court may at its discretion, remit any portion of the penalty mentioned and enforce payment in part only. (6)

By mere reading of the above mentioned provisions of law it is mandatory for the learned trial Court to pass a speaking order showing the reasons for forfeiture of the bail bonds as provided under subsection (1) of section 514, Cr.P.C. At the same time it is provided that show cause notice be issued to the surety to explain why he may not be asked to pay the penalty thereof. In subsection (2) of section 514, Cr.P.C. it is specifically provided that if sufficient cause is not shown and penalty is not paid, the Court may proceed to recover the same by issuing warrants for attachment and sale of the movable property belonging to such person or his estate if he be dead etc. The word "sufficient cause is not shown" is important and a surety therefore, when a bond is forfeited first must have been issued a show-cause notice explaining whole of the circumstances and reasoning on the basis of which bond was declared to be forfeited and then he be afforded an opportunity to explain and show the cause why bail amount may not be forfeited or penalty may not be imposed upon him. Here in this case if order sheet maintained by learned trial Court in the main trial is seen, it is shown that on 17-3-2011 accused Gulfam Shehzad absented himself and learned trial Court passed the following order:-- "Gulfam Shehzad accused is not present. His bail bond is forfeited in favour of the State. Non-bailable warrant of arrest of Gulfam Shehzad accused be issued for 18-3-2011 with the direction to S.H.O. Police Station Chowkazam for execution of the warrants. In case of non-execution of the warrant, the S.H.O., P.S. Chowkazam himself shall appear in the Court. (2) Show-cause notice be also issued to the surety of Gulfam Shahzad, accused that why the full amount of the surety bond may not be recovered from him. To come up on 18-3-2011 It is pertinent to mention here that the learned trial Court did not cancel the bail bond before its forfeiture. Until a bond is cancelled, the forfeiture order cannot be passed. The second portion of the order dated 17-3-2011 whereby it was directed that show-cause notice be also issued to surety of Gulfam Shehzad that why the full amount of the surety bond may not be recovered from him and the case was adjourned for 18-3-2011 i.e. very next day. On the very next day as already mentioned the learned trial Court declared Gulfam Shehzad as P.O without complying with the procedural pre-requisites as provided under section 87 of Cr.P.C. No statement of any of the process server was recorded nor any report of the warrant of arrest was present on record that how and in which circumstances either accused was unable to attend the Court or he intentionally was denying his appearance in the Court. Anyhow at present this question is not involved, however, this aspect is clear from the record that learned trial Court without complying with the procedural pre-requisites declared the accused Gulfam Shehzad as P.O and at the same time he directed the petitioner-surety to submit the written reply of the show cause notice about which he sought an adjournment and the matter was adjourned to very next day i.e. 19-3-2011. If the written reply of the show-cause notice, copy whereof is present on the file, is seen, petitioner submitted in Paras Nos. 2, 3 and 4:-- The above-mentioned paragraphs as submitted by the petitioner in reply to the show-cause notice clearly depict that the surety sought time from learned trial Court to produce the accused for whom he stood surety. Learned trial Court, however, did not consider these aspects nor afforded an opportunity to the petitioner-surety to make the efforts for production of the accused in Court. It is admitted proposition that whenever a person stood surety for an accused, his custody is transferred to him from judicial custody and then he is bound under the law to make the arrangements for his appearance in concerned Court of law as and when required. It is clear that a private individual cannot keep a person for whom he stands surety in his captivity like keeping an accused in a prison or lock up to produce the accused whenever it is directed by a Court of law and individual/private person, however, with his own efforts and superintendence to produce him in Court makes his own efforts and according to the circumstances direct that person to appear in the Court or make/such arrangements for his appearance in Court. No-doubt the provisions under section 514, Cr.P.C. are enacted to initiate action against a surety in case of forfeiture of bail bond and recovery of the penalty but these provisions are not meant to be used as a trap for a surety or a procedure for recovery like any other provisions enacted under commercial laws or the banking laws whereby recovery procedures are initiated. It is clear from the reply to show-cause notice submitted by the petitioner that he be allowed time to make his efforts to procure the attendance of the accused and subsequently his efforts were found fruitful when the accused Gulfam Shehzad was produced in Court on 25-4-2011 whereby he gave his explanation that he was abducted by some unknown persons who took him to Khyber Pakhtunkhwa and now the surety/petitioner Zafar Ali informed him that his bonds have been forfeited and his non-bailable warrants of arrest have been issued, therefore, he accompanied his surety to surrender before the Court. Learned trial Court subsequently arrested the accused and sent him to lock up. It itself shows the bona fide on the part of the surety. The provisions as enacted specially the provisions under section 514, Cr.P.C. are not meant, as already mentioned, to be used as a mechanism for trapping the sureties or initiating the proceedings for recovery of the penalty. If it is possible according to the facts and circumstances, if a surety requests for grant of time to afford him an opportunity and time for making efforts to procure attendance of accused for whom he stood surety it be provided to him freely without placing any restriction. In these circumstances when a surety is ready to make efforts for procuring the attendance of the accused it shows that a genuine effort was being made by him, therefore, when accused was produced before the Court the forfeiture of bond and subsequent imposition of penalty is not the intention of law as enacted under section 514, Cr.P.C. For that purpose reference can be seen from a judgment "Ghulam Qadir Sial v. State" (1997 PCr.LJ 554) whereby an Hon'ble Bench of Federal Shariat Court of Pakistan observed:-- "It is admitted that soon after this order, i.e. within one month or so, the surety has actually produced the accused before the Court, who was taken into custody and was acquitted thereafter. The sequence of these facts shows that the petitioner had acted in compliance with the orders of the Court which allowed him time for the production of the accused, therefore, he was not liable to pay the surety amount after he had actually produced the accused in the court." This view is further fortified in the judgment reported as "Shan-e-Muhammad v. State" (2009 PCr.LJ 962). As petitioner-surety, by making genuine efforts, produced the accused in the trial Court to face the trial, therefore, he was not liable to be imposed any penalty. Thus, while allowing this revision petition the impugned order dated 19-3-2011 is hereby set aside. H.B.T./Z-30/L Petition allowed.