Haji RAJIB vs THE STATE
The applicant challenged an order whereby he, as a surety for an accused, was directed to pay Rs. 50,000 following the forfeiture of his surety bond. The core legal question was whether the surety was properly condemned unheard and denied an opportunity to explain the absence of the accused and his own late arrival on the date the impugned order was passed. The Sindh High Court held that the applicant was deprived of an opportunity to explain the circumstances, including the accused's confinement in jail and the surety's own valid reasons for late arrival. Consequently, the Court set aside the impugned order with the consent of the parties and remanded the matter to the Sessions Judge for a fresh decision on merits after hearing the surety. The key principle laid down is that a surety must be afforded a proper opportunity of hearing and explaining default before a penalty is finalized upon the forfeiture of a bail bond.
- Whether a surety is entitled to an opportunity of hearing before a penalty is imposed upon the forfeiture of a bail bond?
- Can an order forfeiting a surety bond be set aside and remanded for a fresh decision when the surety provides valid reasons for late appearance?
- Does the confinement of an accused in jail affect the liability of a surety upon the accused's non-appearance?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
ORDER
1. ' The applicant has challenged the order, dated 30th November, 1999 whereby the applicant being surety of accused Jewan Shahani has been required to pay Rs,50,000 within a period of one month in consequence of forfeiture of his bond in the said amount.
2. ' It appears that accused Haji Jewan in Sessions Case No,145 of 1996 re: The State v. Jewan Shahani and others under sections 302 and 34, P.P.C. Was called absent on 9th August, 1999 as a result whereof his bail and that of all those other accused who were likewise absent was cancelled and bail bonds were forfeited. N.B.Ws. Were also issued against the accused and notices to the sureties of all these accused were also ordered to be issued. The case diary dated 30-11-1999 placed on record shows that as far as accused Jewan was concerned an information was laid before the trial Court that he was confined in District Jail, Dadu and to this effect, statement of the Head Constable Gul Hassan was recorded on oath. On the aforementioned date, as it appears, the applicant who stood surety remained absent despite service and also failed to furnish is reply. In this situation, the learned Sessions Judge, Dadu passed the orders requiring the applicant/surety to pay the entire amount of surety Rs,50,000 within a period of one month from the date of that order. It is, however, significant to note that the applicant/surety after some time of passing the said order appeared before the Sessions Judge, Dadu on the same day viz 30th of November, 1999 and moved an application disclosing the reasons for his late arrival in the Court. The applicant in the said application made a request that his absence at the time of call already given be condoned; however, learned Sessions Judge on that application, passed an order that since the impugned order stood already passed the applicant was required to deposit the surety amount within a period of one month.
3. Learned counsel for the applicant has submitted that the applicant has been deprived of an opportunity to explain the absence of accused Jewan Khan on all dates, inter alia, in the background of his admitted confinement in District Jail, Dadu. He further submitted that on 30-11- 1999 the applicant had valid reasons for his late arrival in the Court which ought to have been considered by learned trial Court for just decision on merits after providing him an opportunity of hearing. He prays that the matter be remanded to learned Sessions Judge, Dadu for passing orders afresh on merits, in this background. Learned State Counsel has frankly recorded his no objection to the remand of case to learned Sessions Judge, Dadu.
4. ' Accordingly, with consent the impugned order, dated 30-11-1999, is set aside and matter is remanded to Sessions Judge. He shall pass pertinent orders afresh on merits after hearing the applicant/surety. In these terms this Criminal Revision Application alongwith the listed applications disposed of.