AHMED KHAN vs THE STATE
This matter concerns a petition against the forfeiture of a surety bond for a vehicle obtained on superdari, which the petitioner failed to produce before the trial court. The core legal question was whether the forfeiture of the bond was justified when the petitioner failed to produce the vehicle due to it being snatched by criminals, an event for which an F.I.R. had been registered. The Supreme Court held that the lower courts adopted a hypertechnical approach. The Court determined that the petitioner was not a wilful or contumacious defaulter, as he was genuinely disabled from producing the vehicle due to the robbery, and there was no evidence suggesting the F.I.R. was false. The ratio established is that the law does not penalize a person for non-compliance with a bond condition when such non-compliance arises from circumstances beyond their control and lacks criminal intent. Consequently, the Court set aside the orders of the lower courts and the High Court, ruling that the petitioner could not be held liable for the bond amount under these specific circumstances.
- Can a surety bond be forfeited when the failure to produce the property is due to circumstances beyond the control of the surety?
- Does the law permit the punishment of a person for non-compliance with a bond condition in the absence of criminal intent?
- Is a failure to produce property held on superdari considered a wilful and contumacious default if the property was stolen and an F.I.R. was lodged?
- Section 514(4), Code of Criminal Procedure 1898
' RANA BHAGWANDAS, ACTG. C.J.--- This petition is directed against High Court of Sindh order, dated 11-12-2006 dismissing petitioner's criminal revisions against forfeiture of surety bond in respect of Suzuki Car Cultus Registration No,AEB-263 obtained by him on Superdari from the Court of Civil Judge and Judicial Magistrate, Mirpur Sakro at Gharo.
2. Petitioner had executed a surety bond in the sum of Rs,5,00,000 on 16-9-2004 undertaking to produce the same before the Court on each and every date of hearing but on his failure to do so, his bond has been forfeited. It is the case of the petitioner that the car was snatched by hardened criminals from his possession on or about 19-10-2004, for which F.I.R. No,130 was lodged at Police Station Liaqatabad, Karachi on 25-10-2004 and despite hectic efforts neither the car has been recovered nor the culprits brought to book. It was on this account that the petitioner was unable to produce the Car before the trial Court, who considering the failure to produce the car as wilful and contumacious default, proceeded to direct the recovery of bond amount from him in terms of section 514(4) of the Code of Criminal Procedure, 1908. Petitioner challenged the order before the learned Sessions Judge, Thatta, was concurred with the view of the trial Court. Petitioner challenged orders of both the Courts before the High Court but without any success, hence this petition.
3. We have heard learned counsel for the petitioner and learned Advocate-General, Sindh on behalf of the State.
4. Learned counsel for the petitioner has taken us through the defence plea of the petitioner before the trial Court and agitated at the hearing of notice before the trial Court as well as in appeal before learned Sessions Judge, Thatta. Latter has noted the contentions but not been able to appreciate that same in their proper perspective. It seems that the petitioner was genuinely disabled from producing the car by reasons of robbery thereof only five weeks after the handing over of the same to him by the Court. There is no finding of fact that F.I.R. Lodged by him was false or bogus. Admittedly, local police has not been able to find out only clue of the car, which still remains to be untraced. In these circumstances, it would only be fair to hold that the petitioner was not in default in the matter of production of the car before the trial Court and the view taken by Courts below and endorsed by the High Court seems to be hypertechnical on the face of record. In our considered view, law does not punish a person without any criminal intent and in the facts, the petitioner, having raised a bona fide defence cannot be said to be wilful and contumacious defaulter in compliance with the terms of the bond. It is for this reason that learned Advocate- General, Sindh fairly concedes and is unable to support the view taken by the Courts below.
5. For the aforesaid facts, circumstances and reasons, we convert this petition into appeal and, on acceptance, set aside impugned order of the High Court as well as orders of the Courts below.