' RAJA SAEED AKRAM KHAN, J.---This appeal arises out of the judgment of the Shariat Court dated 3- 2-2010, whereby appeal filed by the appellant, herein, was dismissed.
2. The brief facts giving rise to the instant appeal are that one Muhammad Ishaque, was involved in a murder case and was under trial before the District Criminal Court, Rawalakot. The trial Court granted bail to Muhammad Ishaq, accused, subject to furnishing bail bond in the sum of Rs,5,00,000. The appellant along with others stood surety of the accused, Muhammad Ishaque on 18-12-1996. Muhammad Ishaque, accused, has been regularly appearing before the trial Court but in spite of lapse of 9 years, the trial could not conclude. In December, 2004, it came to the knowledge of the appellant that Muhammad Ishaque, accused, has gone to Pakistan for treatment. The appellant, due to apprehension that the accused may abscond, filed an application on 4-12-2004 for withdrawal of the surety bond. On this application, the trial Court did not pass any order and simply placed the same on the record. The case before the trial Court was fixed for 10- 12-2004. The accused did not turn up on the said date and absconded. Resultantly, the trial Court instituted a Robkar' against the appellant and another surety. Finally the learned trial Court forfeited the surety bond vide order dated 28-2-2005. The said order was assailed before the learned Shariat Court of Azad Jammu and Kashmir by way of an appeal which was dismissed vide impugned order dated 3-2-2010 and the order passed by the District Criminal Court was upheld.
3. Mr. Asghar Ali Malik, the learned counsel for the appellant, has submitted that the proceedings of forfeiture of the surety bond were illegal and against law and the Courts below had not adhered to the law laid down in cases reported as Dildar and another v. The State (PLD 1963 SC 47) and Murtaza Shah and another v. The State (PLD 1986 Pesh. 43). The learned counsel further submitted that the Shariat Court failed to take into consideration the fact that the appellant moved an application well before the date of hearing for cancellation of the surety bond on which no order was passed by the trial Court. He urged that the trial Court did not provide ample opportunity for production of the accused and the proceedings have been conducted in a slipshod manner and the order has been passed in an arbitrary manner which is against the principles of natural justice.
The trial Court also failed to follow the procedure laid down in section 514, Cr.P.C. And this aspect of the case was also neither looked into by the trial Court nor the Shariat Court.
4. On the other hand, Raja Ghazanfar Ali, the learned Advocate-General, assisted by Sardar M. R.
Khan, Additional Advocate-General, appearing on behalf of the State, supported the judgment of the Shariat Court and submitted that the order is perfectly correct and no illegality has been committed by the District Criminal Court as well as the appellate Court. He requested for dismissal of appeal.
5. We have heard the arguments and examined the record of the trial Court with utmost care. It is admitted position that the date of hearing before the trial Court was 10-12-2004 whereas the appellant moved the application well before the date of hearing, i,e, on 4-12-2004. It is also revealed from the record that no order was passed on the application and the trial Court straightaway passed the order of forfeiture of surety bond and directed the appellant (surety) to deposit the forfeited amount in the Government treasury on 18-3-2005. The order should have recorded the reasons while forfeiting the surety bond and after forfeiture of surety bond, the appellant (surety) must have been served with a show-cause notice that why the forfeited amount may not be realized from him. For better understanding, section 514, Cr.P.C., is relevant which is reproduced as under:-- "514. Procedure on forfeiture of bond.--(1) Wherever 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 106 or section 118 is convicted of an offence the commission of ' which constitutes a breach of the conditions of his 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 glance reading of the above provision it is clear that it must be proved to the satisfaction of the Court that the bond has been forfeited and it is only after such proof that the person bound by the bond may be called upon to show cause as to why the penalty should not be levied. The proof should be a prima facie proof based on evidence that the bond has been forfeited. The non- issuance of notice in absence of prima facie proof will render the proceedings liable to be set aside as laid down in a case reported as Sanwan and another v. The State (PLD 1965 (W.P.) Karachi 516) wherein it has been observed as under:- "It is plain from a perusal of the language of this section that it is incumbent on a Court to first declare the bond forfeit and to record the grounds for such a finding before calling upon the surety to pay the penalty thereof or to show cause why it should not be paid."
' In the case titled Adho Khan v. The State (2001 PCr.LJ 35) it has been held at page 37 as under:-- "It is an essential requirement of section 514, Cr.P.C., that when it is proved to the satisfaction of the Court that the bond has been forfeited, the Court shall record, the grounds of such proof and may call upon the person bound by such bond, that is to say the surety in the instant case, to pay the penalty thereof or to show cause why it should not be paid. Strict compliance of this provision of law is to make by taking actions step by step and in the order enjoined in this section."
' In another case reported as Thakur Kishan Narayan Singh and others v. Emperor (AIR 1922 Patna 242) it was held as under:-- ".... S.514 lays down that it must be proved to the satisfaction of the Court that the bond has been forfeited and the Court shall record the grounds of such proof, and it is after such grounds have been recorded that the person bound by the bond may be called on to show cause why the amount should not be paid."
' In a case reported as Shaukat Ali and another v. The State (1980 PCr.LJ 718) it was observed as under:-- Moreover, section 514 Criminal Procedure Code clearly contemplates that final decision, regarding recovery of the amount of the bond that has been forfeited, should be made after issue of notice to show-cause why the amount should not be paid. Where show-cause notice is issued but without such show-cause notice being duly served, an order for recovery is made, such an order is not only contrary to the wholesome provisions of section 514, Cr.P.C., but is also in violation of the principle of natural justice contained in the latin maxim 'audi alteram partem' which, in fact, stems out from the principle of Islamic Law."
' Similarly in a case titled Sub-Major Fazal Ellahi v. The State (PLD 1978 SC (AJ&K) 80), it was held as under:-- "The appellant then moved an application under section 561-A, Cr.P.C., for review of the order dated 16-2-1975 but this application was dismissed by the learned single Judge vide his order dated 30- 5-1976. It is under these circumstances that a petition for leave to appeal was filed before this Court. The leave was granted to consider the legal effect of the order passed without serving further notice on the surety when the Presiding Officer was himself away from the headquarters on the date fixed for the hearing of the appellant."
6. The perusal of the order of the trial Court shows that the same has been passed in a hasty manner and without observing the relevant provisions of law and without following the procedure provided in section 514, Cr.P.C. It is also admitted position that the application filed by the appellant remained unattended in which no order has been passed. The judgment of the Shariat Court also seems to be based on presumptions. The findings of the Shariat Court are not sustainable in the eye of law.
7. It would not be out of place to observe here that the Shariat Court while dismissing the appeal also failed to take into consideration a judgment passed by the Shariat Court of Azad Jammu and Kashmir in a case titled Raja Faizullah Khan and another v. Raubkar Adalat (1992 PCr.LJ 1649 in which the Court observed as under:-- "(5) The scheme of law relating to forfeiture of bond and realization of amount has been postulated under section 514, Cr.P.C. It was enjoined upon the Court seized with the case, to satisfy itself that bail bond was executed for appearance of the accused before the Court. On account of absence of accused, the bond has been forfeited and next, the Court has to ask the sureties to explain as to why the amount of bond should not be realised from them. Thus, the law contemplates three stages:
(i) The satisfaction of the Court that the bond is for the appearance of the accused before the Court. Such satisfaction has to be expressly recorded in the order of the Court;
(ii) the bond has been forfeited. The finding of the Court with respect to forfeiture of the bond must rest on grounds necessitating such forfeiture; and
(iii) the realization of the amount of the bond.
(6) In the present case, it is noticed that there is no formal order of the Court relating to first 2 conditions laid down in the Code. The learned Sessions Judge has not mentioned expressly, in the impugned order that the bond was for appearance of the accused in the Court and the accused was absent without reasonable ground. Secondly, there is no formal order for forfeiture of the bond resting on the grounds in support of such forfeiture. The order is, therefore, illegal, as such it is hereby quashed."
Resultantly this appeal is accepted and orders passed by the Shariat Court as well as the trial Court are set aside. The case is remanded to the trial Court for decision afresh in accordance with law after affording reasonable opportunity to the appellant.