MUNSHI Versus THE STATE Rai Mohammad Nawaz Kharl , Malik Amjad Khan

The petitioner Munshi has moved this revision petition under section 439, Cr.P.C. challenging the vires of the order dated 16‑3‑1987 passed by the learned Additional Sessions Judge, Faisalabad, whereby the surety bond of Rs.20,000 executed by the petitioner was ordered to be forfeited in favour of the State.

2. The case in brief is that on 22‑7‑1984 in a case registered under section 10/16 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 at Police Station Samundari, vide F.I.R. No. 192 the petitioner stood as a surety for the accused Ghulam Rasul resident of Chak No.390/GB, Tehsil Samundari, District Faisalabad. The precise allegation against the petitioner is that the above‑referred accused failed to appear before the Court on 4‑12‑1986 and that his bail bond was cancelled. A show‑cause notice is alleged to have been issued to the petitioner. The learned counsel for the petitioner has contended that it is established on record that no show‑cause notice was ever issued and the same was ever received by the petitioner. Learned counsel states that it is established on record that the notice issued to the petitioner has in fact been received by somebody in the village and that the notice was never given to him. In proof of this contention the learned counsel for the petitioner has placed on record the affidavit sworn in by the petitioner. He next argued that there is no evidence to show that the petitioner was in fact served with a notice issued by the trial Court lastly the learned counsel urged that the accused Ghulam Rasul was acquitted by the learned trial Court on 28‑4‑1987, and, therefore, the case has come to an end. Malik Amjad Khan, learned counsel for the State, contends that the requirement of law is that the learned trial Court should be satisfied with the absence of the accused. He submitted that the impugned order, dated 16‑3‑1987 shows that surety was served.

3. I have heard the learned counsel for the parties. It is conceded by the learned State counsel that the accused Ghulam Rasul was acquitted by the trial Court vide order, dated 28‑4‑1987. The contention of the learned counsel for the petitioner is that there is no evidence whatsoever on record to show that in fact the petitioner was served with a show‑cause notice. The learned counsel for the State was unable to point out some evidence showing that in fact the petitioner was served with the show‑cause notice. Thus, the question, whether the petitioner was served with a show‑cause notice or not, has become highly doubtful. No document in support of the contention of the respondent that the petitioner was served has been produced before me. The only allegation against the petitioner is that the accused did not appear before the Court on one date alone and that admittedly the accused has been appearing before the trial Court on the subsequent dates. In my considered view there was nil ample justification with the trial Court to have forfeited the surety bond. The upshot of the above discussion is that the impugned order, dated 16‑3‑1987 is set aside. Revision petition succeeds and is allowed.

M.Y.H./M‑657 / L Petition allowed.