P L D 1952 Baluchistan 56 (PLP)

R. K. M. SAKER, J. C.‑Two revision petitions under the provisions of section 439, Criminal P. C. have been filed before me against the order of the District Magistrate, Sibi, dated 27th August 1951 whereby he upheld on appeal the order of the tahsildar and Magistrate II Class, Sibi forfeiting the bonds of the two petitioners. Since they relate to the same set of circumstances, this order will dispose of both petitions. Briefly the facts of the case indicate that one Mst. Tahira Begum was challaned in the Court of the tahsildar and Magistrate II Class, Sibi, under section 406, Pakistan P. C. and the two petitioners before me, namely Mst. Badrun Nisa and Nur Khan, stood surety for the accused in the trial Court. The trial Court issued a warrant for the attendance of the accused on 5th October 1950. The warrant was duly executed, though received back after the date of hearing; and the accused was directed by the City Magistrate, Quetta to attend the Court. On that date the accused failed to appear and the bail bond was accordingly forefeited. The trial Court then proceeded to issue a process for attendance on 13th October 1950 and although served the accused again failed to appear. A bailable warrant was issued for appearance on 1st November 1950 which was not executed. Another bailable warrant was issued for appearance on 13th November 1950, and although executed the accused again failed to appear and. the bail bond forfeited. A fresh warrant was issued for 19th February 1951, but again the accused failed to appear and as the warrant had been duly executed the third bail bond was also forfeited. In the first place it is relevant to observe the order of the trial Court forfeiting bail bond was made on 13th October 1950 while the date of the order in appeal was 27th August 1950 and the petition for revision was presented in this Court on the 26th November 1950. My views on the subject of the presentation of revision petitions are well known. I have frequently held that while no limitation is imposed on the time within which such petitions should be presented a rule of practice, which I have consistently followed, is that such petitions must be presented within 60 days of the order com plained of unless there are extenuating circumstances. In the case before me it has been argued that the appellate order by the District Magistrate was not announced with the result that until steps were taken to recover the amount of the bail bond the petitioner were unaware of the orders passed in this connection. They were therefore not in a position to lodge any revision petition in this Court in time. I have carefully studied the records and the order of the learned District Magistrate gives no indication that it was announced either to the parties or in open Court. I must therefore, give the benefit of the doubt to the petitioners before me since there is no evidence to the contrary to show that they knew of the orders passed in the Appellate Court. In the light of these circumstances it would not be proper for me to reject the revision petitions before me out of hand on the grounds that they were not presented within time. I first propose to deal with the case of Mst. Badrun Nisa It is relevant to note that the date of the order in the trial Court, was 13th October 1950 while the appeal against this order was lodged in the Court of the District Magistrate on 17th March 1951. The appeal was clearly time‑barred. Learned District Magistrate in his judgment has taken note of the fact that there was inordinate delay in lodging appeal in his Court. In my view, the appeal was time‑barred by virtue of the fact that it should have been lodged within 30 days in accordance with Schedule I, Art. 154 of the Limitation Act. Learned counsel for the petitioner Mst. Badrun Nisa has advanced arguments with regard to the interpretation of section 514 (1), Criminal P. C. which are clearly identical to the arguments adduced before the Appellate Court, namely that until it is proved to the satisfaction of the Court that the person concerned was absent the bail bond cannot be forfeited. The records of the case indicate very clearly that the accused and the surety were absent on frequent occasions despite the fact that various notices to appear had been served upon them. In defence of the absence of the accused it is alleged that a medical certificate was produced. The learned trial Magistrate had some doubts about the authenticity of this medical certificate and accordingly he directed the surety to appear to show cause why the forfeiture of the bail bond should not be enforced against her. Despite the fact that the notice was served the surety again failed to appear to show cause. I am therefore, not concerned with the non-appearance of the accused herself but only with the fact 5that the surety failed to appear after notice had been served upon her. It has been contended that in passing his order the learned Magistrate should have declared that the medical certificate was bogus if he did not believe it and that he should have proceeded to record evidence on oath before taking steps to forfeit the bail bond and to issue notice to show cause against forfeiture. Evidence to this effect was not recorded but nothing could be clearer to the Magistrate than the fact that the accused had failed to appear. His failure to record evidence in this respect is a failure of procedure only and does not vitiate the proceed ings. In all the circumstances it is abundantly clear to me that despite notice to appear to show cause why the bail bond, should not be forfeited the surety in question still failed to appear. In these circumstances the Court had no alternative but to direct the forfeiture of the bail bond and I cannot, in any circumstances, find grounds for setting aside this order. I would, however, go further and observe that this Court will not treat cases lightly in which persons who are directed to appear before Criminal Courts deliberately disobey such summons without adequate reason. The authority of all Criminal Courts must be maintained and, unless there is sound and reasonable excuse, persons who stand sureties for those accused of criminal offences must be made responsible for their failure to appear. In the circumstances the petition for revision is dismissed and the Court will proceed to realise the bail bond. I now come to the case of Nur Khan. While the circum stances are somewhat similar there is, however, a clear distinction between the case of Nur Khan and that of Mst. Badrun Nisa. It appears from the record that the petitioner was served with a notice under section 514, Criminal P. C. to pay the amount of the bail bond or to show cause why he should not pay. This notice was for 16th March 1951 but the records of the trial Court do not indicate whether any proceedings were taken on this date. It is possible that no such proceedings were taken because the records of the case had been sent to this Court in connection with various transfer applications. In these, circumstances, I do not think, at this stage, that it would be proper to call upon the petitioner to pay the amount of the forfeited bond, since proceedings as required under section 514, Criminal P. C. are not apparently yet complete. Without prejudice to the merits of the case I direct that the trial Court will proceed to comply with the provisions of section 514, Criminal P. C. and will issue fresh notice to the petitioner to show cause. After issue of this notice the Court will act in such manner as it thinks proper and in the event of the Magistrate ordering payment, the petitioner will again be at liberty to appeal to the District Magistrate under the provisions of section 515 of the Criminal P. C. A. H. Order accordingly.