MUHAMMAD AKRAM Versus THE STATE Muhammad Yunus , A.H. Masood for the State.
The present criminal revision is directed against the order dated 22-3-1988, whereby the learned Additional Sessions Judge, Sheikhupura, forfeited the bail bonds filed by the petitioner on behalf of one Iftikhar Ahmed, accused m F.I.R. No. 191`tS6 registered at Police Station Bara Ghar, District Sheikhupura for the non-appearance of the said accused in Court and for the failure of the petitioner as surety to produce the said accused Iftikhar Ahmad in the Court, and order dated 2y-1-1990, whereby the learned Additional Sessions Judge further ordered the imprisonment for a period of 6 months, of the petitioner, for it appeared that the forfeited amount cannot be recovered from the attachment and sale of the property of the petitioner.
2. The brief facts leading to the present criminal revision petition are that the petitioner had stood surety in the sum of Rs.20,000 for the accused Iftikhar Ahmed in a case registered vide F.I.R. No.39/86, as stated above, and on the non- appearance of the said accused in the Court, the learned Additional Sessions Judge issued a show-cause notice under section 514, Cr.P.C. to the petitioner, as to why the surety amount of Rs.20,000 be not recovered from the attachment and sale of his property and from his person vide the impugned order, dated 22-3-1988, Thereafter, the petitioner and the said accused Iftikhar Ahmed put in appearance in the Court on 29-1-1990, when, nevertheless, the impugned order, dated 29-1-1990 was passed, observing that the surety i.e. the petitioner had not submitted any reply to the show-cause notice issued vide order, dated 22-3-1988, and it was further stated therein as follows:---
"It appears that the amount of penalty cannot be recovered from attachment and sale of the property. Accordingly in terms of section 514, subsection (4), Cr.P.C. surety is ordered to undergo imprisonment for a period of 6 months. He be taken into custody and sent to the jail."
Accordingly the petitioner was taken into custody and sent to jail.
3. The learned counsel for the petitioner has contended for setting aside the impugned orders on the ground that the provisions of section 514, Cr.P.C. were not complied with before passing the impugned orders. In this respect reference was made to subsection (2) of section 514, Cr.P.C., which is as follows:---
"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 attachment and sale of the movable property belonging to such person or his estate if he be dead:"
The learned counsel further submitted that instead of issuing a warrant for attachment and sale of the movable property belonging to the petitioner, as required under the subsection (2) of section 514, Cr.P.C., stated above, the learned Additional Sessions Judge had ordered the arrest and imprisonment of the petitioner under subsection (4) of section 514, Cr.P.C. on the extraneous and flimsy ground that `it appears that the amount of penalty cannot be recovered from the attachment and sale of the property'. The learned counsel further submitted that before invoking the provisions of subsection (4) of section 514, Cr.P.C., it was mandatory for the trial Court to comply with the provisions of subsection (2) of section 514, Cr.P.C. But as no warrants for attachment and sale of the movable property belonging to the petitioner were issued to recover the amount in question, therefore, the arrest and imprisonment of the petitioner was arbitrary and unjust.
4. The learned counsel for the petitioner further submitted that as on 29-1-1990, the petitioner had produced the accused Iftikhar Ahmad in the Court, therefore, his bona fide thus having been established, and the requirement of law thus having been fulfilled, the show-cause notice for forfeiture of the bail bonds of Rs.20,000 was uncalled for. Further submitted that the petitioner had stood surety for the said accused Iftikhar Ahmed out of benevolence and not for any monetary gain, and as the petitioner had made all out efforts for production of the said accused before the Court and had succeeded in doing so, therefore, the show-cause notice should have been discharged, instead of the forfeiture of the surety bonds of the amount of Rs.20,000.
5. In the alternative, the learned counsel for the petitioner, argued for substantial reduction in the amount of forfeiture because of the petitioner's bona fides in producing the accused Iftikhar Ahmed in the Court, and for the reason that he had stood surety for the said accused out of benevolence and not for any monetary gain. In this respect reliance was placed on the following authorities:--
Dildar and another v. The State P L D 1963 SC 47, Muhammad Khan v. The State 1986 P Cr. L J 2028, Hazara v. Additional Sessions Judge, Rajanpur and another 1988 P Cr. L J 1256, Muhammad Saleem v. The State 1988 P Cr. L J 1599 and Dost Muhammad and others v. The State 1988 P Cr. L J 598.
6. The learned counsel for the State, on the other hand, submitted that as the petitioner had already produced the accused Iftikhar Ahmad in the Court, therefore, he shall not oppose the reasonable reduction of the forfeited amount. However, further conceded that the lower Court had forfeited the amount and imposed the penalty of 6 months of imprisonment of the petitioner without complying with the relevant provisions of law applicable to the case, as stated above on behalf of the petitioner.
7. In view of what has been stated above, as the learned Additional Sessions Judge had not complied with the provisions of subsection (2) of section 514, Cr.P.C. for issuance of warrants for attachment and sale of the movable property belonging to the petitioner for recovery of the forefeited amount, therefore, the penalty imposed by the said trial Court under the provisions of subsection (4) of section 514, CI.P.C. for the further imprisonment of the petitioner for 6 months is not sustainable in law. The failure of the trial Court to comply with the said provisions of section 514, Cr.P.C. amounts to illegality; and in addition thereto, as the petitioner had produced the accused in the Court, thus fulfilling his obligation under the law as his surety, in fact, no action was called for against the petitioner, therefore, the impugned orders are liable to be set aside.
8. This aspect of the case calls for a serious notice to be taken of. The I manner in which the learned lower Court deprived the present petitioner of his liberty and ordered for his imprisonment as stated above, without fulfilling the requirement of law and, in fact, under the facts and circumstances of the case, in violation of the law applicable to the instant case is highly deplorable.
9. Therefore, in view of what has been stated above, the present criminal revision petition is hereby allowed and the impugned orders are hereby set aside. The petitioner is on bail, his bail bonds stand discharged.
S.A./M-2998/L Revision accepted.