Tariq Saleem Sheikh, J. Javed Shamoon son of Muhammad Shamoon was tried by the Additional Sessions Judge, Minchinabad, in case FIR No.143/2020 dated 12.03.2020 registered at Police Station Minchinabad and was convicted under section 9(a) of the Control of Narcotic Substances Act, 1997 (the "CNSA"), vide judgement dated 01.02.2022. He was sentenced to rigorous imprisonment for nine months and fine of Rs.5,000/- and in default thereof to undergo simple imprisonment for two months and 15 days. The learned Judge extended the benefit of section 382-B Cr.P.C. to Javed Shamoon and, keeping in view the fact that the sentence was less than one year, suspended its execution in terms of section 382-A Cr.P.C. subject to the condition that he would furnish bail bond in the sum of Rs.500,000/- with one surety in the like amount. On 02.02.2022, the Appellant (Muhammad Rasheed) posted surety for Javed Shamoon for the requisite sum of Rs.500,000/- whereafter he was released on bail.
2. Javed Shamoon challenged his conviction and sentence in this Court through Crl. Appeal No.93/2022 which was dismissed as withdrawn vide order dated 28.3.2022. Thereafter, he filed Crl.
Appeal No.274/2022 in an attempt to assail his conviction and sentence again but it was dismissed for being not maintainable vide order dated 10.5.2022.
3. When Crl. Appeal No.93/2022 was dismissed the Additional Sessions Judge issued various notices to Javed Shamoon but he did not surrender. On 05.04.2022, he issued notice to the Appellant to show cause as to why penalty equal to the sum mentioned in the surety bond may not be imposed on him. The Appellant submitted his reply stating that Javed Shamoon had filed a petition in the Hon'ble Supreme Court seeking leave to appeal against the judgment of this Court and he would produce him if that was declined. The Additional Sessions Judge afforded a number of opportunities to the Appellant but neither he produced the convict nor any order of the Hon'ble Supreme Court showing that he had been granted leave to appeal. Eventually, vide order dated 30.06.2022, the Judge forfeited his bond and imposed penalty in the sum of Rs.500,000/-. He granted him a few hours time to deposit the money in the government treasury and when he failed, through another order passed the same day, directed him to be taken into custody and sent him to the District Jail Bahawalnagar to undergo simple imprisonment for six months. This appeal under section 48 of the CNSA is directed against both these orders (hereinafter collectively referred to as "Impugned Orders").
4. The learned counsel for the Appellant contends that the Additional Sessions Judge did not comply with the mandatory provisions of section 514 Cr.P.C. so the Impugned Orders are not sustainable.
5. The learned Assistant District Public Prosecutor submits that Javed Shamoon was obligated to surrender before the Additional Sessions Judge after he withdrew Crl. Appeal No.93/2022 but he did not. Even if his plea was that he had filed a petition for special leave to appeal against this Court's judgment (or order) in the Hon'ble Supreme Court which was pending, he ought to have appeared before him and explained his position. He maintains that the Appellant has also failed to keep his bond and produce Javed Shamoon before the Judge. In the circumstances, the action against him is justified. The learned Law Officer refutes the Appellant's contention that the Impugned Orders are vitiated on account of procedural lapses.
6. Arguments heard. Record perused.
7. Section 499 Cr.P.C. enjoins that before releasing a person on bail or on his own bond the police officer or the court, as the case may be, shall require him to execute a bond with or without sureties conditioned that he shall attend at the time and place mentioned in the bond and continue to attend so unless directed otherwise. Section 514 Cr.P.C. outlines the procedure on forfeiture of bond.
It reads:
514. 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 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) ...
(7) ...
8. The language of section 514 Cr.P.C. is plain and simple. It ordains that the following steps should be taken when the bond is violated:
(i) The court should, in the first instance, satisfy itself that the bond has been forfeited. In Tarni Yadav and another v. The State (AIR 1962 Patna 431) the Patna High Court observed that the word "forfeited" has not been defined in the Code of Criminal Procedure, 1898, but its plain meaning is that the condition imposed upon the executant of the bond and agreed to by him has been contravened.
(ii) When the court is satisfied that the bond has been forfeited, it should record the grounds of proof upon which it has come to that conclusion. In Tarni Yadav's case, supra, the Divisional Bench ruled that when the bond is for appearance, all that the court has to do is to refer to its own record.
It can say that the bond was executed for appearance of the accused and he did not appear on the date fixed so it is forfeited. This is sufficient to meet the legal requirement and the question as to whether the accused had any good reason for his absence does not arise for consideration at that point of time.
(iii) When the court concludes that the bond has been forfeited, it should either call upon the executant to pay the penalty or to show cause as to why it should not be paid. It is at this stage that the court has to consider the explanation for non-appearance of the accused.
(iv) If neither sufficient cause is not shown nor penalty is paid, the court may issue a warrant for attachment and sale of the movable property belonging to the executant or his estate for the recovery of that sum.
(v) If the penalty is not paid and cannot be recovered by attachment and sale, the court may imprison the executant for a specific term upto six months.
9. In his treatise Judicial Review of Public Actions (Second Edition, Vol.3 at p.1870) Justice Fazal Karim writes: "Natural Justice demands that (i) the applicant be informed of the nature of the case against him; and (ii) he be given a reasonable opportunity to be heard ... if 'opportunity to be heard' is to have any value in practice, the decision maker must assign or identify the reasons for any adverse decision. Thus, the right of hearing and the duty to give reasons are related, one with the other, and failure to give reasons is, where there was duty to give reasons, treated as a breach of natural justice." Section 514 Cr.P.C. should be examined in the light of this principle and it must be laid down that when the court imposes penalty on the person bound by the bond it should set out the factors that it has taken into consideration for determining its quantum and, if the penalty is not paid, it should give reasons for prescribing the period of imprisonment. Article 10A of the Constitution of Islamic Republic of Pakistan, 1973, also supports this formulation inasmuch as it guarantees the right to fair trial and due process as a fundamental right.
10. Grant of bail is an essential part of the system of administration of justice. We may recall that in Dildar and another v. The State (PLD 1963 SC 47) the Hon'ble Supreme Court of Pakistan held: "Sureties are not constituted as custodians of accused persons, and in the absence of proof to the contrary, it may generally be assumed that they do not gain by standing surety. The system of releasing accused persons on bail has several aspects of importance to the administration of justice generally. It avoids anything in the nature of punishment in advance, since restraint upon liberty even when applied for the purpose of ensuring that a case is duly enquired into and judged, necessarily involves loss of personal rights. At the same time, the release of accused persons on bail assists in the administration of justice by preventing overcrowding in the available spaces of the prisons. Therefore, in dealing with cases of sureties who are in default, a balance has to be held between undue leniency, which might lead to abuse of the procedure and interference with the course of justice in a large number of cases, and on the other hand, undue severity which might lead to unwillingness on the part of neighbours and friends to come forward and give bail for persons under accusation. Finally, in assessing to what extent the bond should be forfeited, the court would have regard to such matters as whether the sureties have any direct interest through financial or blood connection with the accused, whether they have connived at or procured the absence of the accused, and whether they have done their best to secure his attendance."
11. In the present case, the Additional Sessions Judge has passed the Impugned Orders in clear violation of law. He has not given reasons for burdening the Appellant with the full amount of the penalty stipulated in the bond. Secondly, he was required to issue a warrant for attachment and sale of the Appellant's movable property for the recovery of the penalty imposed on him but he ordered his arrest right away. The procedure prescribed by section 514 Cr.P.C. is mandatory. The person bound by the bond should be sent to jail as a last resort. In this regard reference may usefully be made to Muhammad Abid Rasheed v. The State and another (2014 YLR 2167); Muhammad Ameer v. The State and another (2020 MLD 876). Thirdly, the Additional Sessions Judge has not given any reason as to why he was inclined to imprison the Appellant for the maximum period of six months stipulated in sub-section (4) of section 514 Cr.P.C.
12. In view of the above, this appeal is accepted and the Impugned Orders are set aside. The Superintendent, District Jail Bahawalnagar, is directed to release the Appellant forthwith. The matter is remanded to the learned Additional Sessions Judge, Minchinabad, to proceed in accordance with law. The Appellant shall appear before him on 15.08.2022.
13. Above are the reasons for our short order dated 21.07.2022.