1. The facts in brief as regards the controversy in the matter are that admittedly the applicant had stood surety for accused Nooruddin in the sum of Rs,50,000 on 8-3-1999 in Special Case No,1593 of 1997 pending before the learned IInd Additional Sessions Judge, Karachi (Central). This case is concerned with F.I.R. No,302 of 1996 of Police Station Nazimabad registered under section 13-D of the Arms Ordinance. Per the Diary Sheets placed on the record by the learned counsel for the applicant it appears that up to April, 2001 the accused was regularly attending the learned trial Court but from 20th May, 2001 till 25th October, 2001 the accused absconded/remained absent in which event NBWs were issued against him and also notice to the Applicant/Surety. On 1-11-2001 the accused was produced in custody and thereafter finally vide order dated 19-2-2002 he was acquitted, his bail bond cancelled and the surety discharged. However, in the meanwhile, it appears that the surety had filed an application for his discharge upon which notice was ordered under section 514(1), Cr.P.C., by the learned trial Court. The surety replied to such show-cause notice and prayed the same to be withdrawn and no fine be imposed upon him etc. Such reply is dated 7-12-2001. Nevertheless, vide impugned order passed on 19-1-2002 the reply was rejected and the full surety amount was imposed as fine viz. Rs,50,000 principally because per the learned, trial Court the surety had facilitated the accused in abscondence.
2. In the foregoing facts and circumstances learned counsel has submitted firstly that when the accused had been apprehended and produced before the learned trial Court on 1-11-2001 there was no legal ground upon which a notice under section 514, Cr.P.C. could be issued to the applicant. More so, since vide the judgment dated 19-2-2002 itself the accused has been acquitted, his bail bond has been cancelled and the surety himself has been discharged.
3. Additionally learned counsel has submitted that in terms of section 514(1), Cr.P.C., the surety bond itself has to be forfeited and enquiry is to be carried as to the circumstances of such forfeiture before any order could be passed imposing a penalty upon the surety itself. Per learned counsel such exercise has not been carried out by the learned trial Court and only in a summary fashion it has been observed that the applicant/surety himself facilitated the abscondence of the accused.
4. In this regard, he has relied upon 1968 PCr.LJ 781 (Qaiser v. The State). Finally, learned counsel has submitted that the surety himself was responsible for getting the accused arrested and having him produced before the learned trial Court in which circumstances the entire surety amount or for that matter any amount thereof should not have been forfeited as has been done by the impugned order.
5. Mr. Fazlur Rehman learned counsel for the State has supported the case of Mr. Naqvi as far as the enquiry under section 514(1), Cr.P.C. is concerned. However, he has disputed the merits of the case as it is quite clear from the diary sheet placed on the record that the accused absconded from the learned trial Court for a period of over five months whereupon NBWs were issued for his production and notice has also been issued to the surety. Per the learned State Counsel it was only when the accused was arrested that the surety filed an application for discharge. Consequently, this would not explain as to why the accused remained an absconder before the learned trial Court and neither would it advance the surety's case on merits. He has in these circumstances prayed that the matter be remanded back to the learned trial Court so that proper enquiry can be conducted and it be established whether the surety was at fault in not producing the accused before the learned trial Court.
6. I have heard both the learned counsel. In my opinion the provisions under section 514(1), Cr.P.C, is very clear viz. that firstly before any penalty is imposed on the surety under the said section, the surety bond has to be forfeited and the Court is to record the grounds for such forfeiture and only thereafter a penalty is to be imposed if warranted. In my opinion such an exercise has not been carried by the learned trial Court as readily apparent from the impugned order. Further more, it is also to be noted that vide the judgment itself the accused has been acquitted and the surety has been discharged. In these circumstances, the impugned order does not appear to be justified and in accordance with law. Accordingly, the same is set aside and the matter is remanded back to the learned trial Court for holding an appropriate enquiry under section 514(1.), Cr.P.C. after issuing notice to the applicant and then passing of a reasoned and appropriate order. Order accordingly.