FAHIM AHMED SIDDIQUI, J.---Through the instant Criminal Misc. Petition, the petitioner has challenged the order dated 13.11.2017 passed by the learned IIND Additional Sessions Judge, Karachi East in Sessions Case No. 541/ 2010. Through the impugned order, the learned IInd Additional Sessions Judge, Karachi East has declined request of discharge/return of surety of accused namely Maqsood Ahmed and directed to forfeit the entire surety amount i.e. Rs. 6,00,000/-(Rupees six hundred thousand).
2. The factual matrix of the case are that on 22.3.2013 petitioner stood surety for one accused namely Maqsood Ahmed son of Muhammad Yaqoob who is involved in Crime No. 568/2010, under Sections 320, 279, P.P.C. at Police Station KIA Korangi, Karachi East. The petitioner executed a surety bond in the sum of Rs. 6,00,000/- (Rupees six hundred thousand) with P.R. bond and had given such assurance that the accused would attend each and every date of hearing. Thereafter, the accused became absconder and the case file was put on dormant. The applicant appeared before the trial Court on some date in the year of 2017 with a prayer for releasing surety document after giving intimation that the accused had been expired. The trial Court served notice under section 514, Cr.P.C. to the applicant which was replied by the petitioner and thereafter the impugned order was passed.
3. Arguments pro and contra have been heard.
4. In the instant case report was also called from the trial Court and from the report it reveals that the accused was in attendance for sometimes but thereafter he remained absent. It appears from the report that the period of non-appearance of the accused is spread from 08.11.2011 till 223.2013 on which date the case was put on dormant file. It is pertinent to mentioned here that from the report it reveals that about more than two (2) dozen dates of hearing were fixed during this period and on each date of hearing, trial Court has passed order on application moved on behalf of accused in which simply mentioned as "to put up on the next date of hearing" and then on 18.4.2012 an order was passed to issue. non-bailable warrant and notice to surety. It is also pertinent to mention here that during this period no notice was issued to the surety from the office. From the record and proceedings of the case, it reflects that the accused was charged for compoundable offence and during pendency the parties have reached at compromise and an application under section 345, Cr.P.C. was filed; even the requisite advertisement was published in Daily Jang newspaper. Copy of such advertisement is also available on the record. From the contentions of applicant, it reflects that the accused being a patient of Diabetes remained admitted in a Hospital and his legs were amputated. It reveals from the record that the learned trial Court has put the case to dormant file without fulfilling the requisite formalities. Although report received from the trial Court indicates that notices were issued, but no such notice actually has ever been issued or served upon the petitioner. It was the reason that the petitioner appeared before the Trial Court for releasing his surety documents and at that time, notice under section 514, Cr.P.C. was served upon him. In this respect, it is not out of place to point-out that this Court has already described the procedure for regulating forfeiture of bail bond in the case reported as Naseer Muhammad v. The State (1996 PCr.LJ 860), wherein, it is held: "(i) It must be proved to the satisfaction of the Court that a bond has been forfeited.
(ii) The Court must record grounds for such proof of forfeiture.
(iii) A show-cause notice should be issued by the Court to the surety why penalty should not be paid for such breach.
(iv) If sufficient cause is not shown, or if the penalty is not paid the Court may proceed to recover the same.
(v) The recovery can be made by issuing a warrant for attachment and sale of the movable property belonging to surety. "
5. From the above-referred observation of this Court in the case of Naseer Muhammad (supra), it appears that the Trial Court first has to pass an order for forfeiture if it is satisfied through certain proof produced before it that the accused has absconded away and it is also necessary for the Court to record reasons/ grounds for such beliefs and satisfaction in respect of proof of forfeiture. Subsequently a show-cause notice is required to be given to surety with direction to explain why penalty should not be imposed upon him and if sufficient cause is not given then further proceedings for recovery of the amount to be carried out.
6. In the present case after the absconding of accused and during his lifetime no such notice issued or served upon the surety by the Trial Court which is established from the record that the trial Court has actually issued notice under Section 514, Cr.P.C. after the death of the accused. It reveals from the death certificate of the accused that he was expired on 21.6.2014 and buried in Muhammad Shah Graveyard, North Karachi. Meaning thereby that he was expired after putting the case against the accused on dormant file. On behalf of the accused number of applications were filed before trial Court with intimation that he is confined to bed and his legs were amputated. Even while issuing a non-bailable warrant against the accused, no notice was served upon petitioner rather the same was never issued. I am of the view that the learned trial Court is unaware of the proper legal procedure laid-down under Sections 75, 87, 88 as well as Section 514, Cr.P.C. It is the duty of the Court that the Court should be guided by the provision of law and has to use its judicial acumen and prudence before passing any judicial order within the provision of law. Order passed by a Court outside the ambit of law cannot be termed, as a Judicial order.
7. In these circumstances, I have no other alternate but to set-aside the impugned order and direct that the surety documents be released/returned to the surety by the trial Court after proper verification and identification. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.