Mst. SAEEDA BEGUM GODAR vs THE STATE
This criminal revision petition, converted into a petition under section 561-A of the Code of Criminal Procedure 1898, arises from proceedings initiated against a surety for the forfeiture of a bail bond under section 514 of the Code of Criminal Procedure 1898. The petitioner stood surety for an accused in a case under section 302/34 of the Pakistan Penal Code 1860, who failed to appear due to having been abducted and subsequently murdered. Despite this, the Additional Sessions Judge forfeited the bail bond and penalized the petitioner by ordering the deposit of Rs. 70,000. The Lahore High Court held that the Additional Sessions Judge failed to apply judicial mind and erred in penalizing the surety for failing to produce a deceased person. The Court exercised its inherent jurisdiction to prevent an abuse of the process of law, discharged the notice, and directed the refund of the deposited amount to the petitioner.
- Whether a surety can be penalized for the non-production of an accused who has been murdered?
- Can a revision petition be converted into a petition under section 561-A of the Code of Criminal Procedure 1898 in order to prevent a miscarriage of justice?
- Does the forfeiture of a bail bond remain sustainable when the accused's failure to appear is due to circumstances beyond the control of the surety, such as death?
- Section 302/34, Pakistan Penal Code 1860
- Section 514, Code of Criminal Procedure 1898
- Section 561-A, Code of Criminal Procedure 1898
ORDER
' KAZIM ALI MALIK, J.---In a case F.I.R. No,388, dated 3-11-2004 under section 302/34, P.P.C. Registered with Police Station, Saddar Beruni, Rawalpindi Khameed was accused, who made an application for pre-arrest bail before the Court of Session, Rawalpindi. The Additional Session Judge, Rawalpindi allowed him interim pre-arrest bail in the sum of Rs,1,00,000 with one surety in the like amount. Mst.
Saeeda Begum, petitioner herein, stood surety for him and executed required bail bond, which was accepted by the Court. Then it so happened that Khameed, accused, did not turn up on the date fixed i.e, 24-11-2004 and his application for pre-arrest bail was dismissed for non-prosecution. On an application of the complainant for the said murder case, the learned ASJ initiated proceeding against the petitioner, herein, in terms of section 514, Cr.P.C. The learned ASJ forfeited the bail bond in favour of the State and issued a show-cause notice to the petitioner, herein, requiring her to explain as to why the forfeited amount of Rs,1,00,000 might not be recovered from her. The petitioner filed reply to the show-cause notice with the plea that Khameed, accused had been abducted by the complainant party of the said murder case and it was, therefore, not possible for her to produce him before the Court in the bail application. The learned ASJ dismissed her contention and version and directed her to deposit Rs,70,000 in Court vide order, dated 11-5-2005.
The petitioner did not assail the order of learned ASJ before any forum and instead deposited the forfeited amount of Rs,70,000 in the Court.
2. It is manifest from bare perusal of the impugned order and the record that Khameed, accused aforementioned, had been murdered on 22-8-2005 allegedly by the complainant party of that murder case. His dead-body was also recovered. The petitioner made an application for refund of the forfeited/deposited amount of Rs,70,000 before the learned ASJ with the only plea that before 24-11-2004 Khameed, accused, had been abducted and then murdered and, therefore, it was not possible for her to produce him before the Court. The learned ASJ dismissed her application vide order, dated 21-7-2007 with an observation that she did not challenge the order, dated 11-5-2005 before any forum and that it was not permissible under the law to review the unchallenged order.
Hence, this revision petition by the petitioner/surety.
3. At the very outset, I would say that the impugned order by means of which the learned ASJ refused to review the order of his predecessor is not amenable to revision.
' Keeping in view the above noted peculiar circumstances of the case and the fact that the petitioner has been wronged I convert this revision petition into a petition under section 561-A, Cr.P.C.
4. This is not in dispute that the petitioner/surety challenged the show-cause Notice on the ground that Khameed accused, for whom she stood surety in pre-arrest bail, had been abducted and murdered by his rivals. The learned ASJ did not attach any importance to ' her contention and defence. It was must for the learned ASJ to offord an opportunity to the petitioner/surety so that she could substantiate her version with evidence. The learned ASJ disbelived her version summarily and ordered her to pay Rs,70,000, which were paid by her. The way she obeyed the order and deposited the forfeited amount, is an evidence that she was not aware of her legal right to challenge the order before the Court of Session or this Court. This is matter of record that aforementioned Khameed, accused, had been killed allegedly by the complainant party of that murder case. His dead-body was also found. The complainant party of that murder case had been reported against for his murder. She contested the show-cause notice with the contention based on facts. Khameed, accused, was no more in this world and there was no occasion to ask the petitioner/surety to produce him before the Court in the bail application. I once again say that the petitioner has been wronged. This fact calls for exercise of inherent powers under section 561-A, Cr.P.C. As the petitioner has been punished and penalized for no fault on her part.
5. Here I would say that the learned ASJ had not applied judicial mind while initiating proceedings under section 514, Cr.P.C. He should not have ordered the petitioner/surety to deposit Rs,70,000 on account of her failure to produce a dead person before him.
6. In the given circumstances, I allow this petition by exercising inherent jurisdiction under section 561-A, Cr.P.C. And consequently discharge the notice with a direction to the learned ASJ to refund Rs, 70,000 (Seventy thousand only) in favour of the petitioner/surety through cross-cheque payee's account only.