RAJA FAIZULLAH KHAN Versus RAUBKAR ADALAT

ORDER

The petition is directed against the order passed by the learned Sessions Judge, Mirpur on January 18, 1992. whereby the petitioners were burdened with the penalty in the sum of Rs.10,000 each, the amount of bond executed by them, for production of accused Mahboob Kiani, in the Court.

2. Mahboob Kiani, accused was put to trial under section 5 of the Explosive Act, in the Court of Sessions Judge, Mirpur. He was released on bail and the bail bond was executed by the petitioners with the undertaking that the accused shall appear before the Court on each date of hearing for which the sureties shall be responsible. In case the accused failed to appear in the Court, it was assured that the sureties shall pay a sum of Rs.1,00,000 each, from their person or property as penalty 'for the default of appearance of the accused before the Court. The bond was executed on July 20, 1988.

3. The accused has been appearing during trial but on April 14, 1990, he failed to appear, as such the bail was cancelled and show-cause notice was issued to the sureties. Warrant of arrest of the accused was also issued. The sureties appeared before the Court and filed their objections on October 7, 1991. It was explained, that the accused had absconded and the petitioners required reasonable time to produce him in the Court. It was explained that the accused was a Driver and despite best efforts of the sureties, they were unable to find him out. It was further explained that the execution of bond was bona fide. The learned Sessions Judge in consideration of the explanation furnished by the sureties; felt persuaded to burden them with the liability of Rs.10,000 each. This order has been assailed in the present petition.

4. Mr. Masud Khalid the learned counsel for the petitioners; contended that the failure of appearance of the accused in the Court on the relevant date was not due to fault on the part of the sureties and that they were destitutes, as such they deserved further latitude in addition to one already given by the learned Sessions Judge. Mr. Muhammad Akram Mughal, the learned Additional Advocate-General, partly agreed with the aforesaid proposition.

5. The scheme of law relating to forfeiture of bond and realisation of amount has been postulated under section 514, Cr.P.C. It was enjoined upon the Court seized with the case, to satisfy itself that bail bond was executed for appearance of the accused before the Court. On account of absence of the accused, the bond has been forfeited and next, the Court has to ask the sureties to explain as to why the amount of bond should not be realised-from them. Thus, the law contemplates three stages:--

(i) The satisfaction of the Court that the bond is for the appearance o the accused before the Court. Such satisfaction has to be expressly recorded in the order of the Court;

(ii) The bond has been forfeited. The finding of the Court with respect to forfeiture of the bond must rest on grounds necessitating such forfeiture; and

(iii) The realisation of the amount of a bond.

6. In the present case, it is noticed that there is no formal order of the Court relating to first 2 conditions laid down in the Code. The learned Sessions Judge has not mentioned expressly in the impugned order that the bond was for the appearance of the accused in the Court and the accused was absent without reasonable ground. Secondly, there is no formal order for forfeiture of the bond resting on the grounds in support of such forfeiture. The order is, therefore, illegal, as such it is hereby quashed. The petition is accepted and the case is remanded to the learned Sessions Judge for passing of the proper order. The parties shall appear before the learned Sessions Judge, Mirpur, on May 25, 1992.

N.H.O./511/H.C.A.

Case remanded.