By the bond, executed on 1st September, 1975, surety Maqbool Hussain bound himself in the sum of Rs, 5,000 to produce accused Abdul Waheed Khan, before the learned Labour Court on 12th September, 1975 and further bound himself to ensure that the said Abdul Wahid would continue to attend the said Court until otherwise directed by the learned Court. It appears that on or about 29th November, 1975, an application was made by the parties for withdrawal of the complaint. No order on this application have been made by the learned Court possibly because the matter was pending in the High Court by way of a Constitutional Petition and the High Court had ordered that no judgment should be announced by the Court till the disposal of the Constitutional Petition. It may also be pointed out that at the time that the said application was made, there was no provision in the I. R. O. For withdrawal of a complaint for subsection (5) of section 36, I. R.O., was added by Act XI of 1976. Some time before the said application was made, an order was passed by the learned Labour Court on 27th September, 1975, adjourning the proceedings in the case against the accused Abdul Wahid sine die by reason of the stay order granted by the High Court. The Constitutional Petition was ultimately dismissed by the High Court on 19th January, 1976. No proceedings appear to have been thereafter taken by the learned Labour Court till 14th February, 1980, when notice was issued to the parties. As the accused was not served and continued to remain absent, notice was issued to the surety, Maqbool Hussain, to produce the accused. This notice was issued to him on 25th October, 1980, requiring him to produce the accused on 4th November, 1980. As surety, Maqbool Hussain failed to produce the accused on the aforesaid date the learned Labour Court on 11th November, 1980, passed the following order "Issue non-bailable warrant against the accused for securing his attar'. Dence on 25th November, 1980. The Surety in spite of opportunity having been provided for causing production of the accused had failed to produce the accused in obedience to the direction of this Court. Thus his surety bond stands forfeited to the State. Issue process in the form of attachment for recovering the surety bond amount as penalty from the surety. Put off to 25th November, 1980 for further orders."
2. The record and proceedings in the case have been sent for in the exercise of the suo motu power of revision of this Tribunal for the purposes of examining the propriety, legality and the correctness of the aforesaid order.
3. Mr. Obaidur Rehman Khan, the learned counsel for the surety Maqbool Hussain, has assailed the above order of the learned Labour Court on the ground that it is not in accordance with the provisions of section 514, Cr. P. C. It was argued by the learned counsel that there are three separate and distinct stages contemplated by section 514, the first stage is the declaration of the forfeiture of bond, the next stage is a notice to the surety calling upon him to pay the penalty or to show cause why it should not be paid and the last stage arises when this penalty is to be recovered by coercive process. The learned counsel submitted that in the instant case all the three stages have been telescoped into one stage by a single order which is invalid. In support of his contention the learned counsel relied upon the decisions in the case of Abdul Razaque V. State and Yaqoob Shah v. The State . In the former case, it was held that the provisions of section 514 are mandatory and that defect in observing the procedure prescribed in section 514 was not a curable irregularity. In the case of Yaqoob Shah, the learned Judge, after referring to a passage in the case of Ghulam Qadir V. The State observed as follows "On reading the above passage it would appear that the Division Bench was clearly of the view that before reaching a conclusion regarding forfeiture of bond and recovery, it has to give two alternatives to the surety. These are the alternatives that are referred to in subsection (1) of section
514. Again in the case of Willayat Hussain v. The State the learned Single Judge of the Karachi Bench of High Court of West Pakistan took the view that even after issue of notice to the surety the Court must be satisfied that cause shown was not sufficient and such satisfaction is to be arrived at before the surety can be asked to make payment. In the case of A. L. Zahir Hussain v. The State the learned Single Judge of that High Court interpreted the words : 'If sufficient cause is not shown and the penalty is not paid' occurring in subsection (2) of section 514 of the Code as implying that without asking the surety to show cause why the penalty should not be paid, the surety could not be called upon to pay the amount forfeited."
4. Since, in the instant case, no order was passed requiring the surety to show cause why the penalty should not be paid, the impugned order, directing issuance of attachment against the surety would appear to be invalid. It may be pointed out that the earlier order, dated 25th November, 1980, merely required the surety to produce the accused but did not require him to show cause why the surety bond be not forfeited.
5. For the reasons discussed by me above, I would set aside the impugned order passed by the !Earned Labour Court on 11th November, 1980 and remand the case to it for passing fresh orders in the case after giving an opportunity to surety Maqbool Hussain to show cause why the penalty should not be paid. The learned Court should also decide and pass orders on the application, made on 29th November, 1975, for withdrawal of the complaint. The surety, Maqbool Hussain, is directed to appear before the learned Labour Court on 15th February, 1981. PLD 1978 Kar. 579 PLD 1978 Quetta 1581 2 3 1 2