GHULAM SARWAR vs THE STATE

ORDER

' The petition is addressed against the order of District Criminal Court, Mirpur, passed on August, 26,.1992, whereupon forfeiture of bail bond, the petitioner was directed to pay the full amount of bond in the sum of Rs,5,00,000.

2. Ghulam Sarwar executed a bond and undertook the responsibility of appearance of Muhammad Yusuf, accused, in the Court, to face the trial. The accused failed to appear on March 10, 1992. His warrant of arrest was issued for appearance. Notice was issued to the surety. On March 19, the next date of hearing, the order of the trial Court passed on March, 10, was repeated. On April 12, the process server entrusted with the execution of service of the warrant, was summoned and on May 9, recording of the statement of the police constable, proceedings were carried against the accused under section 512, Cr.P.C.

3. Show-cause notice was issued to petitioner-surety on March 10. 1992 to show as to why on forfeiture of bond, the amount in question may not be realised from him. Objections were filed on July 5. The order of realisation of the amount was passed on August 26, 1992. This order has been assailed in the present petition.

4. The learned counsel for the petitioner contended that the order passed on August 26, 1992 was illegal as preliminary order relating to forfeiture of the bond was not passed in accordance with law. It was elaborated that under law, when the Court was satisfied that the bond was forfeited; it should have passed an order in that direction on that day and thereafter should have issued a notice to the surety. The order of March 10 when the accused absented, was not passed in compliance with the provisions of section 514, Cr.P.C. Likewise, the subsequent proceedings were not carried according to law. It was accepted to both the learned counsel for the petitioner as well as the learned Additional Advocate-General that the impugned order was illegal.

It was not curable in exercise of powers under section 537, Cr.P.C.

5. The scheme of forfeiture of bond and realisation of the amount of the bond, is postulated under section 514, Cr.P.C. It provides that when it is proved to the satisfaction of the Court which has taken the bond that such bond has been forfeited, the Court, on recording the grounds for such proof of forfeiture, was to proceed to call upon the person bound by such bond to pay the penalty or to show-cause as to why it should not be paid by him. Thus, three stages were contemplated, (i) the satisfaction of the Court that the bond is forfeited, (ii) recording of the grounds in support of proof of forfeiture; and (iii) calling upon the surety to pay the penalty or to show-cause why it should not be paid by him. On completion of the aforesaid procedure, the next stage passed on to the explanation of the surety to satisfy the Court that the absence of the accused was bona fide and not wilful. This view finds support from Walayat Hussain's case PLD 1967 Kar. 826 and Abdul Sattar's case 1976 P Cr. L J 424.

6. In present case, Ghulam Sarwar executed a bond on July 18, 1990 and undertook the responsibility that the accused shall appear before the trial Court on all the dates of hearing during the trial and in the alternative, when the case is transferred to any other Court of competent jurisdiction, he shall appear in that Court as well, without fail. In case of default, it was agreed that the surety shall suffer liability in the sum of Rs,5,00,000.

7. It is noticed elswhere that the accused made default of apperance on March 10. No order in respect of forfeiture of the bond in compliance with the provisions of section 514, Cr.P.C. Was passed on that day. However, notice was issued to the surety. The trial Court adjourned the proceedings to 3 different dates and ultimately passed its order on the basis of evidence of the police constable who was entrusted with the execution of warrant of arrest, on May 9, 1992. In the proceedings for the realisation of the amount, the order of forfeiture of bond was passed on July 22.

That order was also defective as it was not an order of forfeiture of bond but just in the shape of calling upon the surety to show-cause for absence of the accused. Under law, the order of forfeiture of the bond should have been passed on the day of default as the accused violated the conditions of the bond by absenting from appearance in the Court. Such order should have been passed on March 10 or at the late stage on May 9 when the proceedings under section 512, Cr.P.C.

Were taken against the accused. The aforesaid position leads to the conclusion that the proceedings taken by the lower Court in the case were violative of law. These are not curable in exercise of powers under section 537, Cr.P.C. As such these are quashed and the case is remanded to the District Criminal Court, Mirpur. The parties shall appear before the lower Court on January 5, 1993.