MUHAMMAD ABDULLAH and 2 others vs THE STATE

This criminal revision is directed against the order dated 28-11-2000 of the learned Special Judge, Anti-Corruption, N.-W.F.P., Peshawar Camp at D.I. Khan whereby he forfeited the bail bonds furnished by the petitioners in favour of accused Mst. Saddo Mai and Muhammad Hayat to the extent to Rs,5,000 each and the learned Illaqa/Judicial Magistrate, D.I. Khan was authorised to recover the penalty under intimation to his Court.

2. The brief facts, giving rise to this revision, are that the accused were charged under sections 420/468/471, P.P.C. Read with section 5(2) of the Prevention of Corruption Act vide F.I.R. No,18 dated 4-11-1999 of P.S.A.C.E., D.I. Khan. The accused applied for bail before arrest on 28-6-2000 which was accepted by the learned Special Judge and they were granted interim bail subject to their furnishing bail bonds in the sum of Rs,50,000 each with two sureties each in the like amount. In pursuance of the order, the accused furnished bail bonds to which the petitioners stood sureties.

This order was passed on 26-1-2000 and hearing of the application was adjourned to 14-3-2000.

However, the proceedings were adjourned from time to time on account of gazetted holiday, cancellation of tour of the learned Judge to D.I. Khan and relinquishment of charge. Finally, the application was fixed for hearing on 28-11-2000 and on this date, the Court was open for business but the accused were absent. Accordingly, the impugned order was passed.

3. The procedure for forfeiture of the bail bond, where the bond is for appearance of the accused before the Court provided in section 514, Cr.P.C. Is that as soon as the accused remains absent in violation of the bond executed by him, and his sureties, the first step to be taken by the Court is to satisfy itself that the accused has violated the terms and conditions of the bond, as such, the bond is liable to be forfeited and for passing such an order, the Court has to record reasons. The next step to be taken by the Court is to call upon the person bound by such bond to pay the penalty thereof or to show cause as to why the penalty shall not be paid.' If instead of making payment, the person bound by the bond offers explanation, the third step to be taken by the Court would be to make a summary inquiry and record its reasons if the explanation should or should not be accepted. This view seeks support from the cases reported in (1) 1984 PCr.LJ 14, (2) NLR 1987 Criminal 382(1), (3) 1993 PCr.LJ 274 (AJ&K Shariat Court) and (4) 1993 PCr.LJ 1475 (FSC). The provisions of section 514, Cr.P.C. Are mandatory in nature, non-compliance of which would render the order wrong and illegal.

4. After passing of the impugned order, when the accused approached this Court for grant of bail before arrest, it was noticed by the Court that accused Muhammad Hayat was incapable to move without the help of helpers and the other co-accused namely; Mst. Saddo Mai was a lady of extreme old-age of 85 years. In the circumstances narrated above, neither absence of the accused on the fixed date before the learned Special Judge appears to be intentional nor the learned Special Judge has adopted the foregoing procedure laid down in section 514, Cr.P.C.

Accordingly, the impugned order is not maintainable in law.

5. As a result, this petition is accepted, the impugned order of the learned Special Judge is set aside and the case is remanded to him with the directions to decide the same afresh in accordance with law and facts.