Cr.Rev. A No. S-  52 of  2011 .

 

1.      For Katcha Peshi.

2.      For hearing of MA 1904/2011.

 

 

     

Date of hearing 14.6.2012.

 

Mr. Shamsuddin N. Kobhar for applicant/surety.

Mr. Zulfiqar Ali Jatoi DPG.

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NAIMATULLAH PHULPOTO,J;   This Criminal Revision application is directed against the order dated 17.3.2011 passed by learned IInd Additional Sessions Judge, Sukkur whereby he imposed fine of Rs. 100,000/- upon the applicant/surety in Criminal Case No. 291/2009 Re-State Vs. Abdul Hameed @ Hameed  and another bearing Crime No. 56/2009 registered at Police Station Dubar under section 324, 353, 186, 411, 34 PPC.

                           Brief facts leading to the filing of above revision are that accused Pirano was granted bail in the sum of Rs. 100,000/- (One lac) and PR bond in the like amount by the trial Court vide order dated 5.9.2009 in the above mentioned case. The applicant stood surety for accused Pirano, filed such affidavit dated 12.09.2009 surety was accepted, such bond was executed and surety was directed to produce accused on each and every date of hearing. Accused was remained absent on 21.4.2010 bail bond was forfeited by the trial Court. Notice U/s 514 Cr.P.C was issued requiring the surety to deposit the forfeited bond or show-cause as to why such amount may not be recovered from him. The relevant portion of the order passed by learned IInd Additional Sessions Judge, Sukkur dated 17.3.2011 is re-produced as under:

“After the respondent voluntarily became the surety and executed such bond, he was under obligation to make it sure that the accused was regularly appearing before the Court. On absconsion of the said accused, the bond executed by the respondent stood forfeited. The respondent has neither deposited the amount of forfeited bond, nor showed cause why the aforesaid amount may not be enforced from him. In such a situation, the respondent is liable to deposit whole amount of his forfeited bond. In this context, I am forfeited in my view by the Judgments of the Honourable Supreme Court in Zeeshan Kazmi v. The State PLD 1997 Supreme Court page 267), Muhammad Safeer v. Qaiser Khan and 2 others (PLD 200 SCMR 321) and Saeed Akhtar v. The State (2009 SCMR 834).

In view of the forgoing reasons, the respondent is directed to deposit an amount of Rs. 100,000/- of his forfeited bond within (30) days, failing with necessary action in accordance with law has to follow. The notice U/s 514 Cr.P.C to the respondent stands disposed of”.

 

                        Mr. Shamsuddin N. Kobhar learned counsel for the applicant/surety mainly argued that notice U/s 514 Cr.P.C was never served upon the surety and procedure adopted by the learned trial Court while imposing the fine is against the provisions of section 514 Cr.P.C.

                        Mr. Zulfiqar Ali Jatoi learned DPG argued that accused remained absent in trial Court and notice U/s 514 Cr.P.C was issued upon the surety and it was served, such report was called from the trial Court and is available on the record. It has also been argued by learned DPG that proper procedure as contained in section 514 Cr.P.C has been adopted in this case.

                        In order to properly appreciate the arguments of learned counsel for the parties section 514 Cr.P.C is re-produced as under:

514.     Procedure of forfeiture bond. (1) Whenever it is proved to the satisfaction of the Court by which a bond under this Code has been taken, or of the Court of a Magistrate of the first class,

 

or when the bond is for appearance before a Court, to the satisfaction of such Court, 

 

that such bond has been forfeited, the Court shall record the grounds of such proof, and may call upon any person bound by such bond to pay the penalty thereof, or to show cause why it should not be paid.

 

(2)        If sufficient cause is not shown and the penalty is not paid, the Court may proceed to recover the same by issuing a warrant for the attachment and sale of the movable property belonging to such person or his estate if he be dead.

 

(3)        Such warrant may be executed within the local limits of the jurisdiction of the Court which issued it; and it shall authorize the attachment and sale of any movable property belonging to such person without such limits, when endorsed by the [District Officer (Revenue)] within the local limits of whose jurisdiction such property is found.

 

(4)        If such penalty is not paid and cannot be recovered by such attachment and sale, the person so bound shall be liable, by order of the Court which issued the warrant, to imprisonment in the civil jail for a term which may extend to six months.

 

(5)        The Court may at its discretion, remit any portion of the penalty mentioned and enforce payment in part only.

 

(6)        Where a surety to a bond dies before the bond is forfeited, his estate shall be discharged from all liability in respect of the bond.

 

(7)        When any person who has furnished security under section 107 or section 118…..is convicted of an offence the commission of which constitutes a breach of the conditions of this bond, or of a bond executed in lieu of his bond under section 514-B, a certified copy of the judgment of the Court by which he was convicted of such offence may be used as evidence in proceedings under this section against his surety, or sureties, and, if such certified copy is so used, the Court shall presume that such offence was committed by him unless the contrary is proved. `

 

                                    From the perusal of the order of the trial Court dated 17.3.2011 it transpires that applicant stood surety for accused Pirano on 12.09.2009 in the sum of Rs. 100,000/- and PR bond in the like amount and accused was called absent on 21.4.2010 and bond executed by the surety was forfeited and notice U/s 514 Cr.P.C was issued against surety. Contentions of learned counsel for the applicant/surety that notice was never served upon the surety. Report regarding service of notice U/s 514 Cr.P.C was called by this Court from trial Court which reveals that trial Court had issued a notice U/s 514 Cr.P.C dated 9.3.2011 and same was served upon surety Abdul Wahid  for the date 17.3.2011. It is very much clear that trial Court has adopted the procedure as provided U/s 514 Cr.P.C. As regards to contentions of learned defence counsel that entire surety amount has been forfeited and no lenient view has been taken by the trial Court. On this point, Honourable Supreme Court of Pakistan in the case of Saeed Akhtar v. The State (2009 SCMR 834) has been pleased to observe as under;

“It has been held by this Court on various occasions that no lenient view should be taken and entire amount of the bail bond should be recovered as an amount of penalty. In this regard reference may be made to Zeeshan Kazmi v. The State PLD 1997 Sc 267, it was observed:--

“It has now become common that the accused persons involved in heinous offences, if succeed, in obtaining bail, jump the bail bonds. To check the above tendency and to provide deterrent special provisions have been enacted and/or are being enacted in the special statutes prescribing the minimum amount of bail bond …..Keeping in view the above bleak scenario which has emerged, with the passage of time on account of the lack of respect of the rule of law, and because of the unprecedented continuous steep inflationary tendency resulting in the loss of money value, the Courts should not show any undue leniency while forfeiting bail bond amount. Their approach should be dynamic and progressive-oriented with the desire to discourage the accused persons to jump bail bonds. There is no legal requirement that full bail bond amount should not be forfeited, on the contrary, once an accused person jumps bail bond, the entire surety amount becomes liable to be forfeited in the absence of any mitigating circumstances……”

For the foregoing reasons, we do not find any merit in this petition which is dismissed and leave refused. 

 

                        Once an accused person jumps bail bond, entire surety amount becomes liable to be forfeited in the absence of any mitigating circumstances. In this case surety has not brought any mitigating circumstances. Approach of the trial Court appears to be dynamic and progressive-oriented with the desire to discourage the accused persons to jump bail bonds.  Order of learned trial Court is based upon sound reasons and did not require interfere.

 

                        For the foregoing reasons I do not find merit in this revision application which is dismissed.

 

                                                                                                      JUDGE

 

 

 

 

 

Ihsan.