Mir EHSAN MEHMOOD vs THE STATE

' KAZIM ALI MALIK, J.---In a case F.I.R. No. 433, dated 7-11-2002 under section 17 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 read with sections 397/394/ 395/412, P.P.C. Registered at Police Station Airport, Rawalpindi, Malik Yamin accused was arrested and allowed bail in the sum of Rs.1,00,000 with one surety, in the like amount. Mir Ehsan Mahmood, petitioner stood surety for the said accused and executed the required bail bond.

2. After getting bail the said accused did not make himself available for trial. His attendance could not be procured through all legal means including the coercive measures. The learned trial Court forfeited the bail bonds executed by the petitioner in favour of the State and issued a show-cause notice requiring him to explain as to why the forfeited amount of rupees one lac should not be recovered from him. The learned trial Court dismissed reply of the petitioner and ordered him to deposit the forfeited amount in Court. The petitioner did not obey the order upon which his house was put on auction. The petitioner/surety made an application before the learned trial Court seeking stay of auction proceedings of his house, but unsuccessfully. Hence, this revision petition.

3. To start with, we find it convenient to reproduce below the provisions of section 514(2)(3) and (4) of the Criminal Procedure Code, 1898:-- "(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) Such warrant may be executed within the local limits of the jurisdiction of the Court which issued it; and it shall authorize the attachment and sale of any movable property belonging to such person without such limits, when endorsed by the District Officer (Revenue) within the local limits of whose jurisdiction such property is found.

(4) If such penalty is not paid and cannot be recovered by such attachment and sale, the person so bound be liable, by order of the Court which issued the warrant to imprisonment in the civil jail for a term which may extend to six months."

4. A bare perusal of the above quoted statutory provisions governing the subject of forfeiture of bail bond would show that if the penalty is not paid as in the case in hand, the Court may proceed to recover the same by issuing a warrant for the attachment and sale of the movable property of the, surety. Subsection (4) lays down that if the forfeited amount is not recoverable through sale of movable property of the surety, the person so bound be liable to imprisonment in the civil jail for a period which may extend to six months. We could not understand as to how and with what authority, the learned trial Court ordered attachment and sale of immovable property of the surety.

When confronted with the above quoted provisions of law, the learned Law Officer on Court call was left with no other option but to concede frankly and rightly that it was not permissible for the trial Court to attach immovable property, i.e. House of the petitioner-surety or to put the same on auction or sale.

5. For what has been stated above, we are of the view that the impugned order by means of which the learned trial Court initiated proceedings for attachment and sale of the house of the petitioner- surety is amenable to revision being violative of the statutory provisions of law quoted above. We, therefore, accept this revision petition and set aside the order under challenge with an observation that the trial Court may proceed to recover the forfeited amount by adopting the course prescribed by law and not through any self-styled procedure unwarranted in law.