ABDUL SATTAR through his L.Rs. vs THE STATE
This revision application challenges the order passed by the 1st Additional Sessions Judge, Malir, Karachi, forfeiting a bail bond and imposing a penalty following the non-appearance of an accused. The core legal questions involve the liability of a surety's estate after the surety's death under Section 514 of the Code of Criminal Procedure 1898, and whether a penalty can be imposed when an accused's absence is due to circumstances beyond control, specifically being flown out of the country by authorities. The Sindh High Court held that under Section 514(6) of the Code of Criminal Procedure 1898, the death of a surety before forfeiture discharges the estate from liability, and further ruled that no penalty can be imposed when the absence of the accused is unintentional and beyond control. The key principles laid down are that a deceased surety's property stands discharged from bond liabilities, and penalties on sureties cannot be sustained when non-appearance is involuntary.
- Whether the estate of a surety stands discharged from liability if the surety dies before the bail bond is forfeited?
- Can a penalty be imposed upon a surety under section 514 of the Code of Criminal Procedure 1898 when the absence of the accused is for reasons beyond the accused's control?
- Is an order forfeiting a bail bond sustainable if issued after the death of the surety?
- Articles 3/4, PEHO, 1979
- Section 514, Code of Criminal Procedure 1898
- Section 514(6), Code of Criminal Procedure 1898
ORDER
1. ' BIN YAMIN, J.----This order will dispose of revision application made by Mst. Firdous wife of late Abdul Sattar against the order, dated 22-4-2008, passed by learned 1st Additional Sessions Judge, Malir, Karachi, whereby he forfeited the bail bond executed by late Abdul Sattar son of Wilayat Hussain on behalf of the accused Abdul Sattar Khan son of Qari Abdul Salam, who was detained in Crime No,20 of 1994, registered under Articles 3/4, PEHO, 1979, at Police Station P.N.C.B., FIU, Karachi.
2. ' Heard Advocate for applicant as well as learned State Counsel and perused case papers.
3. ' It is contended by the learned counsel for the applicant that surety Abdul Sattar son of Wilayat Hussain, stood surety for accused Abdul Sattar Khan son of Qari Abdul Salam in the above noted case and executed bail bond in the sum of Rs.5,00,000. That while Abdul Sattar Khan son of Qari Abdul Salam was on bail he was arrested by F.I.A. Authorities on 21-11-1997 and was remanded to judicial lock-up in Central Jail, Rawalpindi under the orders of Assistant Commissioner, Islamabad.
4. That thereafter, on 7-6-2003 accused Abdul Sattar Khan was handed over to Mr. Michael W. Brown, Assistant Country Attache, (DEA), Islamabad, and he was then flown to USA by Flight PK-785.That as the accused was flown to USA, therefore, he could not attend the Court of learned 1st, Additional Sessions Judge, Malir, where his case was pending. That thereafter, the learned 1st Additional Sessions Judge, Malir issued a notice under section 514, Cr.P.C. On 25-8-2007. That prior to issuance of notice, Abdul Sattar son of Wilayat Hussain had expired on 10-10-2004, i.e, much before the issuance of the notice under section 514, Cr.P.C. Photocopy of the death certificate of Abdul Sattar son of Wilayat Hussain has been placed on record, issued on 2-12-2004 by Union Council No,8, Commercial Area, Liaquatabad Town, Karachi. That thereafter the widow of the surety Abdul Sattar appeared before the Court and submitted that surety Abdul Sattar has expired on 10-10-2004 and that she is a poor lady, therefore, she requested return of the bond amount deposited in the Court.
5. However, the learned 1st, Additional Sessions Judge, Malir, did not agree with the submissions of the widow and imposed penalty of half amount of surety bond viz., Rs.2,50,000 and further ordered that the remaining half amount along with interest be returned to the widow of the surety Abdul Sattar vide his order, dated 22-4-2008.
6. ' Feeling aggrieved with that order, the widow filed the instant revision application.
7. ' The learned counsel further contended that as per subsection (6) of section 514, Cr.P.C., after the death of the surety, his properties stand discharged from the surety bond, therefore, the impugned order passed by learned 1st, Additional Sessions Judge, Malir, is illegal and in violation of the provisions of law contained in the afore-noted section. Thus, the same is not sustainable and is liable to be set aside. He further contended that it is also well established law that penalty can be imposed upon the surety only in the circumstances when it is established that the accused has remained absent from the Court intentionally and not for the reasons beyond his control/his surety control. That in the instant case, the absence of accused Abdul Sattar Khan son of Qari Abdul Salam from the Court was not intentional but was for the reasons beyond his control as he was arrested by F.I.A. Authorities and thereafter flown to USA as per certificate, dated 26-1-2004, issued by Niamat Ali, Inspector, FIA/SIU, Islamabad, available as Annexure along with statement, dated 30- 6-2008, filed on the record. That if it is proved that the absence of the accused was not intentional then no penalty under section 514, Cr.P.C. Can be imposed upon the surety. In this respect, he relied upon the case, The State v. Abdul Sattar 1976 PCr.LJ 474. That in the life time of surety Abdul Sattar, no notice under section 514, Cr.P.C. Was issued to him and the same was issued in the year, 2007 when he was not available, as he had already died in the year 2004. He, therefore, requests that the revision application under consideration may be allowed and impugned order passed by learned 1st, Additional Sessions Judge, Malir, may be set aside and the surety amount may be returned to the widow of late Abdul Sattar.
8. ' Learned State Counsel has not disputed the contentions of learned counsel for the applicant and has further stated that matter may be decided on the basis of material available on the record.
9. ' I have considered the contentions raised at bar and have perused the relevant law applicable to the present case as well as material available on the record.
10. ' I am of the opinion that the impugned order passed by learned 1st, Additional Sessions Judge, Malir, is not sustainable on two grounds; first that the order of forfeiture of the bail bond was passed when surety Abdul Sattar was no more alive and the same was passed after his death. The law on this point is very clear as it is provided under subsection (6) of section 514, Cr.P.C., which reads as under:-- "(6) Where a surety to a bond dies before the bond is forfeited, his estate shall be discharged from all liability in respect of the bond."
11. ' Thus the impugned order being in violation of the provisions of the law is not sustainable.
12. ' Secondly, the penalty can be imposed upon the surety only when it is proved that the absence of the accused from the Court was intentional and was not for the reasons beyond the control of the accused. In this case, through the certificate, issued by Niamat Ali, Inspector, FIA/SIU, Islamabad, available as annexure `B' along with statement, dated 30-6-2008, it has come on the record that the accused Abdul Sattar Khan son of Qari Abdul Salam was taken to USA and was detained there, therefore, in the circumstances, he could not attend the Court. Thus the absence of the accused was for the reasons beyond his control. Therefore, even on this count, no penalty could have been imposed upon the surety.
13. ' For the aforenoted reasons, I hereby allow this revision application and set aside the order, dated 22-4-2008, passed by learned 1st, 'Additional Sessions Judge, Malir. The bail amount of Rs.5,00,000 lying in the Court be paid to the widow of the surety Abdul Sattar son of Wilayat Hussain on production of succession certificate from the competent Court of Law.
14. ' Revision Application stands disposed of.