GHULAM RAZA vs THE STATE and another

ORDER

IBAD-UR-REHMAN LODHI, J.---The present petitioner, stood surety for Mohammad Ishaq-accused in case F.I.R No, 162, dated 26-6-2012, registered under section, 365-B of P.P.C., at Police Station, Haveli Koranga, District Khanewal, who was allowed ad interim bail by this Court in Criminal Miscellaneous No,3837-B of 2012. However, on 20-9-2012, the accused-Mohammad Ishaq absented on the date of hearing in said Criminal Miscellaneous and not only his petition was dismissed but also the learned Sessions Court concerned was directed to proceed against the surety (the present petitioner) as envisaged under section 514 of Cr.P.C.

2. In compliance of said direction, the learned Sessions Judge, Khanewal, issued notice to the petitioner for his appearance and proceeded to pass an order dated 3-12-2012, whereby, a penalty of Rs,10,000 (rupees ten thousand only), which was deemed as equal to the amount of surety bond was imposed upon the petitioner (In fact the amount of surety was Rs,1,00,000). It was further directed that in case of failure to deposit the said amount within one week, warrant for attachment of the moveable property belonging to the surety was, issued to the District Officer (Revenue), Khanewal, and in case of non-payment of amount of bail bonds, the imprisonment of 3 months, was announced.

3. The vires of the order as was passed by the' learned Sessions Judge, Khanewal, on 3-12-2012, is called-in-question through the present proceedings.

4. I have heard the learned counsel for the parties and have gone through the record.

5. No Show Cause Notice is available on the file and simply a notice for appearance issued to the petitioner, has been treated as a Show Cause Notice. In response to the said notice for appearance, petitioner appeared before the Court, but by marking his presence, he was still shown an accused of playing hide and seek with the Court on an imaginary plea with regard to the ailment of the accused person. There is nothing on record to substantiate such findings of the trial Court.

6. This Court in the case of Muhammad Bilal v. State 2000 YLR 2676 has dealt with the steps of proceedings to be taken against sureties under section 514 of Cr.P.C. And para-6 of the reported judgment would be relevant for the present purposes, which is reproduced herein-below:-- "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 inquired 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-fellings 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 neighbours 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 endeavoured sufficiently to secure the attendance of the accused".

7. In order to proceed under section 514 of Cr.P.C., a Court is bound to adopt the following procedure:--

(i) To get establish the fact that the bond under this Code furnished by the surety has been forfeited;

(ii) To record the grounds of the proof of such forfeiture;

(iii) To call upon the person bound by such bond to pay the penalty thereof;; or to show cause why it should not be paid;

(iv) If sufficient cause is not shown and penalty, is not paid, the Court may proceed to recover the same by issuing a warrant for the attachment and sale of moveable property belonging to such person, or his estate, if he is dead (as endorsed by the District Officer (Revenue).

(vi) If such penalty is not paid and cannot be recovered by such attachment or sale, the person so bound shall be liable to imprisonment in Civil Jail for a term, which may extend to 6 months.

8. Examining the impugned order on the touchstone of the above requirements of law, it is but clear that the learned Sessions Judge, Khanewal, has acted in a rush and without observing the necessary steps to be taken prior to the order of imposing a penalty upon the surety, passed the impugned order.

9. As a result of the above discussion, it is held that the Sessions Judge adopted a self-styled procedure not warranted by law and the same is not sustainable. The impugned order passed on 3-12-2012 is set aside. The Sessions Judge, Khanewal, may proceed afresh against the surety- petitioner strictly in accordance with law and in view of the findings as have been given above.

10. This petition stands allowed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.