Chaudhry MASEETAY KHAN vs THE STATE
This criminal revision challenged an order passed by the Additional Sessions Judge, Liaquatpur, which forfeited the petitioner's surety bond and imposed a penalty of Rs. 30,000 following the absence of the accused from court proceedings. The core legal question was whether a trial court can validly forfeit a surety bond and impose a penalty without ensuring the surety has been properly served with a show-cause notice and afforded an opportunity to be heard. The High Court held that the impugned order was unsustainable in law because the record failed to demonstrate that the petitioner had been served or that the process-server had properly executed the notice. Emphasizing the fundamental principle of natural justice, audi alteram partem, the Court ruled that a surety cannot be penalized without being given a fair chance to present objections. Consequently, the Court accepted the revision, set aside the forfeiture order, and remanded the matter to the trial court for a fresh decision after providing the petitioner with an opportunity to be heard.
- Can a trial court forfeit a surety bond without ensuring the surety has been properly served with a show-cause notice?
- Is an order of surety bond forfeiture sustainable if passed in violation of the principle of audi alteram partem?
- Must a trial court provide an opportunity of being heard to a surety before imposing a penalty for the accused's absence?
- Sections 11 and 16, Offence of Zina (Enforcement of Hudood) Ordinance 1979
ORDER
' This criminal revision has been filed to call in question the order, dated 29-5-1998 passed by Additional Sessions Judge, Liaquatpur, whereby, he had forfeited the surety bond submitted by the petitioner and imposed penalty of Rs,30,000.
2. The facts giving rise to the present criminal revision are that a case F.I.R. No,161 of 1996 under sections 11/16 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) had been registered at Police Station Liaqatpur against Munir Ahmad accused, who was released on bail by the Court and the petitioner stood surety for him. The accused absented himself from the Court on 13-4-1998 and his bail had been cancelled by the Court. Warrants of arrest of the accused and show-cause notice against the surety/present petitioner were issued. The case was adjourned to 11-5-1998. On the said date the petitioner could not be served and the notice was repeated for 29- 5-1998, on which date the petitioner could not be served and the Court passed the impugned order forfeiting the surety bond of the petitioner. Para. No, 2 of the impugned order is reproduced below for further ready reference:-- "2. Maseetay Khan, the surety of Munir Ahmad was served with a notice but he has not turned up despite his service. Therefore, bail bonds furnished by him is forfeited and the surety amount Rs,30,000 would be recovered from him by way of penalty. In order to realize this amount the warrants of attachment of his property shall be issued for 16-6-1998, to be executed by District Magistrate/Collector, Rahimyar Khan."
3. I have heard the arguments of the learned counsel for the parties and perused the record.
4. There is nothing on the record to show that show-cause notice issued to the petitioner was served upon him. The learned trial Court without hearing the objections of the petitioner and affording an opportunity of being heard to him, imposed the penalty of forfeiting his bail bonds.
Vide order, dated 16-6-1998. The surety/petitioner was again summoned by the Court for 6-7-1998.
The surety was not served even for the said date and the proceedings for summoning him continued.
5. From the perusal of the record it reveals that the order impugned has been passed in absence of the petitioner without satisfying that he has been served. The statement of the process-server has not been recorded to the effect that the surety was served in a proper manner. The order impugned has been passed in violation of principle of natural justice i,e, audi alteram partem, which is not sustainable in law. Resultantly, this criminal revision is accepted and the order impugned, dated 29-5-1998 passed by Additional Sessions Judge, Liaqatpur forfeiting the surety bond of the petitioner is set aside and the case is remanded to the concerned Court for its decision afresh, after affording an opportunity of being heard to the petitioner.