1. The applicant is complainant in Sessions case, State v. Shaman and 3 others under sections 392 and 342 read with section 34, P. P. C. And sec--tion 17 (3) of the Hudood Enforcement Ordinance, 1979. The challan was submitted initially in the Court ofS.D.M., Dadu, on 17th January, 1980. On the same day one Hassan Din made an application that he was ready to stand surety in the sum of Rs.
2. 10,000 if the motor-cycle K.C.H. 2428 which had been secured by the Police as case property and had been submitted before the Court as such was handed over to the complainant (applicant herein) who was owner of the same. The application was accept--ed and the- applicant executed a receipt stating that he had received the case property which he undertook to produce on 29th January, 1980 at 9-00 a. m. And that he would keep producing . Motor-cycle whenever asked to do so and on failure he would pay a penalty of Rs. 10,000. On the reverse of the aforesaid receipt Hassan Din executed a bond to the effect that he stood surety in the sum of Rs. 10,000 that the complainant who was being restored the motor-cycle would produce it on 29th January, 1980 at 9.00 a. m. And would keep producing the same whenever ordered to do so and on his failure he would forfeit the bond.
3. The Sessions case was transferred to the Sessions Court, Dadu, on 17th June, 1980 and was incidentally on the file of the First Additional Sessions Judge, Dadu. On 8th November, 1980 when the complainant (applicant herein) gave evidence, there is a note in the case diary as well as on the deposition of P. W. Jamil Ahmad that after giving the evidence the com--plainant (slipped away from Court and had taken the motor-cycle). The endorsement shows that since the motor- cycle was case property and had to be shown to the witness his further evidence was reserved. In the diary of the same date the learned First Additional Sessions Judge, Dadu noted to the effect that the surety bond was cancelled and forfeited and notice be issued to the surety. In the case diary, dated 27th November, 1980 it was ordered that the surety was served but was absent and notice be repeated to him. Again in the case diary, dated 18th December, 1980 there is mention as under :- "Police has not secured the property viz. Motor-cycle. Issue B.Ws. In the sum of Rs. 500 against the complainant and also issue notice to him for producing the property. Repeat letter to S.H.O. For securing property. Surety Hussanuddin is present. He has stood surety for complainant that he will produce motor-cycle on each date of hearing till further orders of the Court. He requests verbally that be may be given time to produce property. Put off to 7th January, 1981 for the same purpose."
4. In the diary, dated 7th January, 1981, concerning the matter in hand there is following statement :- "Motorcycle not secured. Issue warrant to S. H. O. To secure the motor-cycle. The complainant is avoiding to produce the motor--cycle and he is not being with B. W. Issue N. B. W. Against him in order to procure his attendance for production of property which has been given to him for proceeding before Court on each and every date of hearing and he has failed to produce the same inspite of directions for service through special man, put off to 2nd February, 1981."
5. In the diary, dated 24th February, 1981 again B.Ws.. In the sum of Rs. 500 were issued against the complainant and notice was issued to Hussanuddin Ghaloo. The notice to surety was not served and the then Presiding Officer repeated the order with regard to issue of notice against the surety.
6. There is mention again in the diary, dated 1st August, 1982 about issue of N. B. W. Against the complainant and, "also issue writ of attachment against him as ordered by my predecessor through S. P., Dadu". The diary dated 10th March, 1983 inter alia mentions as under :- "In spite of coercive methods adopted for procuring motor-cycle alleged to be robbed property in this case, it has not been secured. Since the witnesses are present they be examined."
7. The learned First Additional Sessions Judge, Dadu passed order, dated 11th December, 1982 on the personal bond of the applicant and the surety bond of Hussanuddin which reads as under :- "The executant has failed to produce property in Court. It is reported by process-server Head Constable Illahi Bux that there is no likelihood of production of the motor-cycle. Bond is, there--fore, forfeited."
8. It is also apparent that the First Additional Sessions Judge, Dadu issued warrant of attachment of the property of applicant Abdul Rahim and the Mukhtiarkar as per directions sealed residential house owned by the applicant on 6th March, 1983 at 4-00 p.m. In the presence of Mashirs. The proclamation regarding sale of his house was issued on 9th March, 1983 and the auction was fixed on 10th March, 1983. However, on the afore--said date Wahid Bux, uncle of the applicant appeared before the Mukhtiarkar and gave application that he may be accepted as surety for payment of fine up to 12th March, 1983 and auction may be postponed. On 13th March, 1983 Wahid Bux made payment of Rs. 10,000 only and the house was desealed and poss9ssion handed over to the applicant. The bank draft, dated 13th March, 1983 amounting to Rs. 10,000 was submitted by the Mukhtiarkar and the learned 1st Additional Sessions Judge, Dadu ordered that the amount be deposited.
9. Section 514 of the Cr. P. C. Which deals with forfeiture of bond reads as under :- "Procedure on forfeiture of 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 satisfacation of such bond has been forfeited, the Court `shall record the grounds of such proof, and may call upon any person by such bond to pay the penalty, therefore, 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 juris--diction 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 Magistrate 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 parson so bound shall be liable, by order on the Curt which issued the warrant, to imprisonment in the Civil AB 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."
10. From a perusal of the section quoted above it appears that firstly under subsection (1) there should be satisfaction of the Court by which a bond has been forfeited and the Court after recording the grounds of such proof as to call upon the person bound by the bond to pay the penalty thereof or to show cause why it should not be paid and under subsection (2) it is only 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 movable property belonging to such person or his estate if he be dead. Subsection (4) provides that if the penalty is not paid and cannot be recovered by the attachment and sale of movable property a person so bound shall be liable to imprisonment in the Civil Jail on warrant to be issued by the Court. It is, therefore, apparent that in the first instance before calling upon the person bond to pay the penalty a show-cause notice has to be issued to ham calling upon him either to pay the amount, or show cause and it is only when no such cause is shown that attachment shall be ordered.
11. In the instant case it is, therefore, apparent from a perusal of the record that the proper procedure had not been followed by the learned Ist Additional Sessions Judge, Dadu. It may also be observed that even to enable the Court to assess the amount to be forfeited and to decide the extent of the forfeiture it was necessary first to give an oppor--tunity to the person concerned to explain the circumstances under, which the bond was forfeited. Mr: Ghulam Ali H. Agha, the learned counsel for the applicant has referred to the decision in Syed Yakub Shah v. The State (PLD 1978 Quetta 158), in which the interpretation of subsections (1) and (2) of section 514, Cr. P. C. Was considered and it was observed as under :- "To put it in simple words subsection (1) contemplates that the notice should call upon the surety either to pay the amount or show cause and subsection (2) of the same section contemplates that attach--ment shall follow when no sufficient cause is shown nor the amount has been paid. Tbis in my view is the only mode of interpretation of the two subsections so that the words used in subsection (1), though appearing to be disjunctive, portray their full effect. More--over such interpretations will also be in consonance with the golden rule disapproving jeopardy without a notice."
12. The mere fact that the applicant was not served with any notice in the instant case, therefore, is sufficient to vitiate the impugned order. In the result the learned First Additional Sessions Judge, Dadu acted wrongly by forfeiting the bond and ordering attachment of immovable property of the applicant without giving him opportunity to show cause against the forfeiture. The revision application is granted to this extent that the matter is remanded to the learned 1st Additional Sessions Judge, Dadu with the direction to issue fresh show-cause notice to the applicant/surety and determine the question of default and the extend of forfeiture. The R & Ps. Of the criminal case from which the instant revision application arose should be sent back to the Court concerned immediately. The amount forfeited to be refunded to the person who had paid the sums.