2017 P Cr (PLP)

SHAHNAWAZ TARIQ, J.

Through captioned criminal revision application, applicant Masood Ahmed Ghanghro has impugned order dated 29.12.2015, passed by the Court of learned Additional Sessions Judge, Kandiaro, whereby entire surety amount furnished by applicant was forfeited.

2. Learned counsel for applicant emphasized that on 29.12.2015, accused Ali Hassan was apprehended by Kandiaro police and applicant moved an application before the learned trial Court intimating such fact and prayed for condonation of absence of accused, but learned trial Court vide impugned order forfeited the entire amount of surety. Learned counsel further urged that subsequently, Kandiaro police produced accused before the Court in custody for obtaining remand he is still in the custody, as such impugned order is liable to be set aside.

3. Learned APG after going through the material available on record as well as remand order extended his no objection.

4. I have heard arguments advanced by learned counsel for the parties and examined the material available on record prudently.

5. Perusal of record emanates that applicant stood surety for accused Ali Hassan in Sessions Case No.4 of 2014, vide FIR No.172 of 2014, under sections 324 and 353, P.P.C. lodged at PS Kandiaro, and furnished surety in shape of Defence Saving Certificates amounting to Rs.50,000/-. Thereafter accused had been appearing before learned trial Court regularly. However, on 28.12.2015, he did not appear before the Court and applicant being surety, moved an application for condonation of absence of accused Ali Hassan for that date on account of arrest of accused by Kandiaro police, thus it was incumbent upon the learned trial Court to call the report from the concerned police in order to verify the fact whether accused was apprehended by police or otherwise. Trial Court did not consider said application and simultaneously, forfeited entire surety amount vide impugned order dated 29.12.2005, which is reproduced as follows:- "ORDER Bail is cancelled on the basis of non-producing any proof in support of plea which seems to be managed and he has not shown his willingness to submit reply under section 514, Cr.P.C., therefore, I impose penalty of whole amount, the amount of Defence Saving Certificate in Government treasury."

6. In the case of Muhammad Bilal v. The State (2000 YLR 2676), it was observed as under:- "

6. Section 514 of the Cr.P.C. is not to be interpreted in such a grammatical way. It must be remembered that grant of bail is an essential part of the system of administration of justice. It avoids punishing someone in advance and ensures liberty until a case is duly enquired into and adjudged. Whereas, the release of accused persons on bail helps in preventing overcrowding in the already overcrowded prisons. People come forward to stand surety for the accused out of ordinary fellow-feelings and invariably without any ambition for gain or benefit, rather for, mere benevolence. Therefore, in dealing with cases of sureties who may be in default, a judicial mind is supposed to maintain a balance between undue leniency, which may be leading to abuse of the procedure and interference with the course of justice. Whereas, on the other hand, undue severity may lead to unwillingness on the part of neighbors and friends to come forward, and give bail for persons under accusation. While maintaining this balance, the Courts are not supposed to act in a mechanical way. They are required to hold some sort of balance while determining to what extent a bond is to be forfeited. Some matters to be considered are; whether the sureties have any direct interest through financial or blood connection with the accused, whether they had connived with or procured the absence of the accused and finally whether they have endeavored sufficiently to ensure the attendance of the accused."

7. In the case of Ghulam Raza v. The State and another (PLD 2013 Lahore 473), it was observed that for proceeding under 514, Cr.P.C., Court was bound to establish that the bond under Cr.P.C. furnished by surety had been forfeited; to record grounds of proof of such forfeiture, and to call upon the person bound by such bond to pay the penalty thereof, or to show-cause why it should not be paid. Where sufficient cause was not shown and penalty was not paid, the Court might proceed to recover the same by issuing a warrant for the attachment and sale of moveable property belonging to said surety or his estate, if he was dead.

8. It is well settled that prior to the commencement of proceedings under section 514, Cr.P.C. the forfeiture of surety bond is essential and subsequently issuance of written show cause notice to surety is mandatory for the Court before the imposition of penalty. Thus mere presence of surety or issuance of a simple notice to surety for appearance before the Court could not be treated as show cause notice as contemplated in section 514, Cr.P.C. and Court is bound to issue such written show notice to the surety. In absence of such mandatory notice, imposition of penalty or other proceedings against surety would be illegal, void and liable to be set aside.

9. Adverting to the merits of the case in hands, neither any show cause notice under section 514, Cr.P.C. in writing was issued to applicant by learned trial Court nor such copy is available on the record. Verbal notice to surety by the Court and verbal reply of surety are not admissible under section 514, Cr.P.C. Application moved by the surety for condonation of absence of accused with sound reasons must be considered by the Court and proper and adequate opportunity should be afforded to surety to produce the accused before the Court or justify the absence of accused. Indeed, applicant is behind the bars in another case lodged by the same police which has established that the absence of accused from the trial Court was neither deliberate nor intentional but beyond his control.

10. Considering the above circumstances, I am of the view that impugned order is suffering from illegality and material infirmity and attracts interference of this Court. Consequently, impugned order dated 28.12.2015, passed by the Court of learned Additional Sessions Judge, Kandiaro in Sessions Case No.889 of 2014, is set aside and learned trial Court is directed to pass an appropriate order on application for condonation of absence of accused filed by the applicant. Criminal Revision application stands disposed of. WA/M-106/Sindh Order accordingly.