MUHAMMAD YOUSAF vs THE STATE

' The necessary facts giving rise to the present revision petition are that one Hafeez Ullah accused was admitted to post-arrest bail in case F.I.R. No,155 registered at Police Station Sadar, Sangla Hill, District Sheikhupura on 16-6-2000 for offences under sections 324/452/148/149, P.P.C. And the present petitioner had stood as surety for the said accused person's bail in the sum of Rs,50,000.

Subsequently the said accused person absented himself from the learned trial Court and, resultantly, proceedings were initiated against the present petitioner under section 514, Cr.P.C. Vide order dated 15-4-2002 the learned Additional Sessions Judge, Sheikhupura imposed a penalty of Rs,50,000 upon the petitioner and required him to deposit the same within a specific time failing which the petitioner was ordered to be sent to Civil Prison for a period of six months so as to undergo simple imprisonment. Hence, the present petition before this Court.

2. In support of this petition it has been argued by the learned counsel for the petitioner that the procedure contemplated by the provisions of section 514, Cr.P.C. Had flagrantly been violated by the learned Additional Sessions Judge, Sheikhupura in the case in hand inasmuch as no formal show-cause notice was issued to the petitioner requiring him to explain as to why a penalty may not be imposed upon him; non-bailable warrants for the petitioner's arrest were straightaway issued without waiting for a reply to the notice issued to the petitioner, warrants of attachment of the petitioner's immovable property were issued which were clearly against the provisions of section 514, Cr.P.C. Which contemplate attachment of only movable property; a consequence of default on the part of the petitioner in depositing the requisite amount of penalty was also simultaneously provided for the impugned order A whereby the petitioner was directed to be lodged in Civil Prison for a period of six months; and the order dated 15-4-2002 provided for all these steps simultaneously whereas the provisions of section 514, Cr.P.C. Contemplate different steps to be taken at different times and according to different situations. The learned counsel for the petitioner has placed reliance upon the cases of Sanwan and another v. The State PLD 1965 (W.P.) Kar. 516, Wilayat Hussain v. The State PLD 1967 Kar. 826, Mst. Sairan alias Saleema v. The State PLD 1970 SC 56 and Abdul Razzaq v. The State PLD 1978 Kar.

579. With the reference to the said precedent cases the learned counsel for the petitioner has urged with vehemence that the procedure contemplated by the provisions of section 514, Cr.P.C. Is mandatory in nature and any non-observation or violation of the said procedure is to result in setting aside of the impugned order passed under section 514, Cr.P.C. As against that the learned counsel for the State has straightaway stated before this Court that the procedure adopted by the learned Additional Sessions Judge, Sheikhupura in the matter could not be defended by him as the same clearly militated against the express and mandatory requirements of section 514, Cr.P.C.

3. After hearing the learned counsel for the parties and going through the record of the case appended with this petition it has emerged as an admitted position in this case that unfortunately the learned Additional Sessions Judge, Sheikhupura had failed to follow the mandatory procedure contemplated by the provisions of section 514, Cr.P.C. It may be true that the petitioner had made a statement before the learned Additional Sessions Judge, Sheikhupura on 15-4-2002 that Hafeez Ullah accused has already left the country and the petitioner is not in position to produce him before the learned trial Court and, thus, the petitioner had default in his commitment and obligation regarding his production before the learned trial Court but at the same time it is equally true that the procedure contemplated by the provisions of section 514, Cr.P.C. Is meant to safeguard the interest of a citizen so that he can advance proper explanation in the matter, if need be and may seek indulgence of the Court in the given circumstances of a particular case. It is trite that nobody should try to be wiser than the law and it is settled law that where the law requires a thing to be done in a particular manner it must be done in that manner alone or not at all. This principle was enunciated for the first time in the case of Bishop of Rochester by Lord Tenterden and the same has consistently been followed eversince not only by the Courts in England but also by the Courts in the Indo-Pak Sub-Continent. In the case in hand in his zest to go after the petitioner for his default in producing the accused person before the learned trial Court after his failure to fulfil his commitment, in that regard the learned Additional Sessions Judge, Sheikhupura had apparently allowed his vision to be clouded and the law in that regard to be flouted. Such conduct surely cannot be condoned by this Court which is not only to see that every person is dealt with in accordance with law but also to ensure that the subordinate Courts of the country apply and follow the law correctly in its letter and spirit.

4. For what has been discussed above this petition is allowed, the impugned order passed by the learned Additional Sessions Judge, Sheikhupura on 15-4-2002 is set aside and the matter is remanded to the learned Additional 'Sessions Judge, Sheikhupura for holding proceedings against the petitioner under section 514, Cr.P.C. Afresh from the scratch.