SHAH ZAMAN BABAR, J.-Criminal Revisions Nos. 209 of 1966, 92 of 1967 and 285 of 1966 are dealt with together as a common question of law has arisen therein.
Cr. R. No. 209 of 1966
2. It appears that one Namir Gul son of Khani Gul, resident of village Ghazi Baba, District Mardan, alongwith others faced trial before the Court of Session, at Mardan under section 302/149/148, P. P.
C. The case was withdrawn for reference to Council-of-Elders under the F. C. R. And Namir Gul was allowed bail in the sum of Rs. 10,000 with three sureties on 4-8-1962. Ghulam Qadir and Khair Wali petitioners along with Gal Akbar (now dead) stood sureties to the bail bond. This bail bond was for appearance in the Court or in case of transfer of the case to other Court for appearance in that Court. It further appears that on coming into force of the West Pakistan Criminal Law (Amendment)
Act, 1963, the case was referred to Tribunal. It is alleged that Namir Gal was charged for the commission of another offence during the subsistence of the bond and he went into hiding Namir Gul, when called upon, did not appear in the Court of District Magistrate, Mardan, on 4-6-1964, in the case referred to the Tribunal. The District Magistrate, therefore, ordered on 4-6-1964 that action under section 514, Cr. P. C., in a separate proceedings against the sureties be taken by the Ilaqa Magistrate.
3. The Ilaqa Magistrate on receipt of the file issued a notice under section 514, Cr. P. C., against the three sureties of Namir Gal. On their appearance on 20-12-1965, they were served with a notice to show cause why the pledged amount in the bail bond Exh. P. A., pledged jointly, and severally, should not be forfeited in favour of the State for the breach of the said bond. Gal Akbar surety died during the pendency of the proceedings The learned Magistrate after examining the prosecution and defence evidence by his order dated 19-2-1966 ordered: --- "I, therefore, taking in view the above facts hold that both the sureties have clearly contravened the conditions of bail bond Ex. P. A. Pledged by them before the authorities, and thus clearly forfeited their undertaking in favour of the State. I, therefore, confiscate an amount equal to Its. 10,000 pledged by Khair Wali and Ghulam Qadir sureties and direct that an amount of Rs. 10,000 be recovered in favour of the State from them in equal shares."
4. The two sureties went upon appeal before the District Magistrate, Mardan, which failed on 6-7- 1966.
5. Ghulam Qadir and Khair Wali have come up on revision to this Court.
6. The learned counsel for the petitioners contended that the Court is to first declare the forfeiture of bond and record reasons therefore before issuing notice to the sureties and then show-cause notice is to be served on them as such, the procedure adopted by the learned Magistrate is not in conformity with the law, and has vitiated the proceedings in forfeiting the amount of surety bonds.
He placed reliance on Sanwan and another v. The State (PLD 1965 Kar. 516). During the hearing of the revision petition on 10-10-1966, Faizullah Khan, J. (as he then was) owning serious doubt about the correctness of the view in Sanwan's case referred the following question to a Division Bench: --- "Whether the recording of an order of forfeiture of the bond is a must of issuing notices to the sureties to show cause why the surety bonds should not be forfeited."
Cr. R. No. 92 of 1967
7. In a case under section 307, P. P. C., of Police Station `C' Division, Peshawar, Allah Bakhsh was released on 7-10-65 on furnishing bail bond for appearance in Rs. 5,000 with two sureties. Atta Muhammad and Sher Muhammad petitioners stood sureties to the bond. During the pendency of the case in the trial Court Allah Bakhsh was charged in a murder case and he thus absented himself during the trial of 307, P. P. C. Case on 21-7-1966. Proceedings under section 514, Cr. P. C.
Were commenced against the two sureties by the Magistrate First Class, Nowshera. The learned Magistrate, after recording the evidence, by his order dated 7-12-1966, ordered "Accordingly under section 514, Cr. P. C. The bail bond furnished by them (Exh. P.A.) has been forfeited and I order the recovery of the penalty thereof. The amount of the penalty is however reduced to the sum of rupees two thousand each, and the same is ordered to be recovered from each of the respondent. Recovery proceedings are ordered to be stated."
8. This order was challenged in appeal by the two sureties before the District Magistrate, Peshawar, but the same failed on 1-2-1967.
9. The two petitioners have come up on revision to this Court.
10. The learned counsel for the petitioners contended that irregularity has been committed in the forfeiture of bond, in that first the notice was given to the petitioners and then the bond was forfeited which is not in accordance with the provisions of section 514, Cr. P. C. Reliance was placed on Sanwan and another v. The State.
11. By the order dated 10-4-67, this case was ordered to be heard alongwith Criminal Revision No. 209/66.
Cr. R. No. 285 of 1966
12. On 17-10-63 petitioners Nos. 1 to 3, namely, Ain Khan, Khan Ghalib and Muhammad Nisar sons of Sarwar Khan were bound down in security bonds Exh. P. 1, Exh. P. 2 and Exh. P. 3, under section 107/151, Cr. P. C. In Rs. 5,000 with two sureties each to keep peace for a period of one year expiring on 16-10-1964 by a Magistrate 1st Class, Mardan. Sarwar Khan petitioner No. 4, Said Muhammad, now dead, Muhammad Sher petitioner No. 5, Zarab A.I petitioner No. 6, Habibur Rehman petitioner No. 7, and Sher Muhammad petitioner No. 8 were the sureties to the bonds. Ain Khan, Khan Ghalib and Muhammad Nisar were charged in a case F.
1. R. No. 2, dated 5-1-1964, under section 307/149/148, P. P. C. For which they were tried and punished to suffer two years' R.
1. Each, by the A. D.
M., Swabi. Proceedings under section 514, Cr. P. C., were com--menced for the breach of the security bonds before Magistrate 1st Class, Mardan. After taking the evidence the learned Magis-- trate by his order dated 13-5-1966 ordered:- "This shows that the accused committed the offence within the period of their security bonds and thus violated the condition of the bonds, furnished by them. The security bond Exh. P. 1, Exh. P. 2, furnished by Aeen Khan, Khan Gahalib and Muhammad Nisar and Sarwar Khan, Muhammad Sher, Zorab A.I, Habibur Rehman and Sher Muhammad, who stood sureties for them in the same amount, are forfeited in Rs. 3,000 in case of each of the respondents and their sureties, vide case file No. 1424/3 decided on 17-10-63 under section 107, Cr. P. C."
13. This order was challenged in appeal before the District Magistrate, Mardan. The appeal was dismissed on 12-10-1966.
14. The petitioner shave come up on revision to this Court.
15. The learned counsel for the petitioners contended that the execution of surety bonds by the petitioners has not been established, and moreover, recording of an order of forfeiture of the bonds is essential before the issuance of notice to the sureties to show cause why their surety bonds should not be forfeited. The learned counsel has relied on Sanwan and another v, The State.
16. This criminal revision was ordered to be heard alongwith Criminal Revision No. 209 of 1966.
17. For sake of expediency and appreciation of the question of law, subsections (1) and (2) of section 514, Cr. P. C. Are quoted below:-
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 and- 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."
This section refers to two classes of bonds-
(1) a bond under the Code taken by a Court, and
(2) a bond for appearance before a Court.
Class (1) is subject to two limitations, viz., the bond must be taken by a Court and it must be taken under the Code. Bond of class (2) must be for appearance before a Court. They must be taken by some one other than a Court under the provisions of this Code.
This section provides procedure on forfeiture of bonds. While forfeiting a bond it is necessary that the person affected should be called upon to comply strictly with the terms of the bond. When a bond has been forfeited, either the Court by which it was taken or a Magistrate of the First Class, or in the case of a bond for appearance the Court before which the appearance was to be made, may satisfy itself as to forfeiture, and call upon the person bound by it either to pay the penalty or to show cause. If the penalty is not paid and no sufficient cause shown, the Court will recover the same by attachment and sale of the movable property of the person liable.
A distinction has been made between bonds, which are not and those which are for appearance before a Court, proof on evidence, other than is directly before the Court in its own record, is required in the former and not in the latter case. Thus where the bond is taken for the appearance of the accused, there does not appear to be any need to conduct an A enquiry or take evidence before forfeiting the bond as breach of the undertaking in the bond is evident from the absence of the accused in the trial. But in the case of a bond for keeping the peace, the Magistrate cannot act unless he is satisfied on proof furnished before him that a breach of the terms of the bond has been committed.
This section contemplates a final decision that the bond has been forfeited only after issue of notice to pay the penalty or to show cause why it should not be paid. Therefore before any person, bound by a bond, is ordered to pay the penalty mentioned in the bond or action is taken under this section to recover the same, the Court should call upon such person to pay the penalty or to show cause why it should not be paid. If any action is taken without such a notice it is illegal and will be set aside.
18. This exposition of law, enunciated above, is deducible from the case-law discussed hereinafter.
In Sarfu and another v. Thakurain Jai Raj Kaur (AIR 1925 Oudh 51), it is ruled: -- "Passing an order of forfeiture without notice to the party whose bond is forfeited amounts itself to a failure of justice even if the same order would eventually have been passed if the case had been heard."
"The provisions of section 514, indicate that two steps are to be taken: first, it must be proved to the satisfaction of the Court that the bond has been forfeited whereupon the Court, is to record the grounds of such proof; secondly, the Court, on being satisfied as aforesaid, may call upon the person bound by such bond to pay the penalty thereof, or to show, cause why it should not be paid."
"An order directing forfeiture of bond executed for the appearance of accused and directing the surety to pay penalty without giving the accused and the surety an opportunity of showing cause, by adducing evidence, as to why the accused failed to appear is bad and should be set aside."
"The provisions of section 514, indicate that two steps are to be taken, first, it must be proved to the bond has been forfeited, whereupon the Court is to record the grounds of such proof; secondly, the Court on being satisfied as aforesaid, may call upon the person bound by such bond to pay the penalty thereof, or to show cause why it should not be paid. Where the action under this section to recover the penalty is taken before the person bound by the bond is called upon to pay the penalty or show cause why it should not be paid it is illegal."
"Section 514, does not contemplate the passing of an order of forfeiture before issuing of notice to show cause why the amount should not be paid. What the section requires is that when the Court is prima facie satisfied that a bond appears to have been forfeited, then it shall issue notice to the person bound by the bond either to pay the penalty thereof or to show cause why it should not be paid. The section does not authorize the Court to pass an order of forfeiture straightway. The Court is required merely to record the grounds of the proof and not its final decision that the bond has in fact been forfeited. The conviction of the Court will have to be recorded after the party has shown cause in pursuance of its notice."
PLD 1957 Dacca 467), it is laid: "Three stages are contemplated for a proceeding under section 514 of the Criminal Procedure Code. Firstly, a declaration of forfeiture, secondly, an order for payment or to show cause and thirdly, steps to be taken for the recovery of the amount.
The declaration of forfeiture must be proved upon cogent grounds establishing to the satisfaction of the Curt that a forfeiture has taken place. The Code further insists that not only such grounds must exist but that the Court should also record such grounds. Again, if the notice to show cause had been issued, the Court must further be satisfied that the cause shown is not sufficient before it can proceed to take steps to recover it.
The words whenever it is proved to the satisfaction must be grounded upon some cogent evidence. The evidence upon which the Court is satisfied that a forfeiture has been incurred and that the person bound by the bond should be called upon to show cause, may be taken in the absence of such person, but that, does not show that the final order making him liable can be made without taking any evidence in his presence or giving him any opportunity of cross- examining the witnesses on whose evidence the forfeiture is held to be established. It would be greatly unjust if persons are penalized without being given an opportunity to show cause that they were prevented from complying with the bond for some cause beyond their control."
"The fact that the accused committed default in appearance on the date adjourned for hearing, is a matter within the knowledge of the Magistrate. In such a case if there is a bail bond for appearance of the accused before a Court no further proof regarding the forfeiture of the bond is necessary.
"Subsection (1) of section 514, makes two points clear: Firstly, the Court must be satisfied that a bail bond has been forfeited; and secondly, this satisfaction must be based upon some proof. Whether the bond it not for appearance of a person in Court (in which case the mere fact of absence of that person may well be a sufficient ground for Magistrate's satis--faction) but for keeping the peace, the Magistrate cannot act unless he is satisfied on proof furnished before him that a breach of the terms of the bond had been committed. The mere fact that the police have reported that a breach of the bond has been committed, or the mere fact that a prima facie case has been made out before some one else that there has been such a breach is not sufficient for him to take action under section 514 (1)."
PLD 1960 Dacca 184), it is held:- "While forfeiting a bond it is necessary that the person affected should be called upon to comply strictly with the terms of the bond."
"Section 514, Cr. P. C. Shows that before a surety becomes liable to pay the amount of the bond forfeited it is necessary to give notice why the amount should not be paid and if he fails to show sufficient cause, only then can the Court proceed to recover the money. When no opportunity has been given to a surety to show cause why he should not be made to pay, the proceedings cannot be said to be in accordance with law and should therefore be quashed."
"There is nothing in subsection (1) of section 514, which requires the Court to give notice to the executant of the bond for appearance of an accused person to show cause against forfeiture before recording an order that the bond has been forfeited.
Subsections (1) and (2) of section 514 contemplate two stages, the first stage is for the Court to satisfy itself that a bond has been forfeited. If the bond is for appearance of an accused person in Court, the fact that he has absented himself is suffi--cient to constitute a breach of the condition, and, therefore, forfeiture of the bond.
The second stage relates to realization of the forfeited amount of the bond. After the Court has come to the con--clusion that the bond has been forfeited, it has to give two alternatives to the executant of the bond. It has to give him notice either to pay the penalty or to show cause why it should not be paid. It is only at the second stage that it is incumbent upon the Court to issue notice to the sureties to show cause why the amount should not be paid."
PLD 1962 Dacca 447), it is ruled :- "Where the question was whether, under section 514 (2) of Criminal Procedure Code, 1898, issue of distress warrant all at once for realisation of the bail bond amount without asking the surety to show cause why the amount should not be paid could be valid: Held, that it should be grossly unjust if persons are penalized without being given an opportunity to show cause that they were prevented from complying with the bond for some cause beyond their control. The expression if sufficient cause is not shown and the penalty is not paid' occurring in section 514 (2), Criminal Procedure Code, 1898, shows that it is only when cause is not shown and penalty is not paid' that distress warrant may issue therefore, direction by a Magis--trate to issue distress warrant straightway against the surety for the realisation of the bail bond without asking the surety to show cause why the penalty due on forfeiture of bond should not be paid, is not proper."
"It is plain from a perusal of the language of this section (514, Cr. P. C.) that it is incumbent on a Court to first declare the bond forfeit and to record the ground for such a finding before calling upon the surety to pay the penalty thereof or to show cause why it should not be paid."
At page 518 it has been also observed:- "In the instant case, the learned Sessions Judge Dadu, made no enquiry whatsoever as to the reason for the accused Dattu absenting himself from his Court on 2-2-1963. The mere absence of the accused from his Court on that day, despite the fact that the accused had regularly attended each and every prior date of hearing, led the Sessions Judge to conclude that the accused had absconded and without declaring the bonds forfeit he promptly issued notice to the sureties. In my view, this conduct of the Sessions Judge is not in strict compliance with the law as it stands, and therefore, such conduct cannot be approved or upheld by the High Court."
PLD 1967 Kar. 826), (wherein PLD 1965 Kar.516 has been referred to), it has been observed at page 828:- "The main contention of the applicant is that the provisions of section 514, Cr. P. C. Have not been correctly followed by the learned Special Judge and this view appears to be correct. Perusal of the provisions of this section shows that three stages are contemplated for a proceeding under this section. Firstly, a declaration of forfeiture, secondly the order for payment or to show cause, and thirdly steps be taken for the recovery of the amount. The declaration of forfeiture must be proved upon cogent grounds establishing, to the satisfaction of the Court, that the forfeiture has taken place. The Code further insists that not only such grounds must exist but that the Court should also record such grounds. Again, if the notice to show cause had been issued the Court must further be satisfied that the cause shown is not sufficient before it can proceed to take steps to recover it. The words whenever it is proved to the satisfaction of the Court' means that such satisfaction must be grounded upon some cogent evidence."
"The requirements of law, therefore, are that the Court has first to satisfy itself that the bond has been forfeited. It has then to record the grounds for such proof and it is after these two pre- requisite are satisfied that the Court may either call upon the person to pay the penalty thereof or to show cause why it should not be paid. The learned Assistant Advocate---General has conceded that the provisions of section 514 (1), Cr. P. C. Have not been complied with and the order dated the 26th of July 1967, forfeiting the perusal and surety bonds cannot be defended. The two petitions for revision are, therefore, accepted. The order of the learned Sessions Judge dated the 26th of July 1967, ordering the forfeiture of the personal surety bond is set aside. The learned Sessions Judge may now proceed with the matter according to law."
Lastly but not the leastly, in Muhammad Ajmal v. The State (1968 P Cr. L J 782), wherein Sanwan v.
The State, it has been observed :- ---For these reasons, apart from the learned Additional Sessions Judge having fallen into an error in not recording his grounds before ordering forfeiture of the applicant's bond it. Is clear to me that the applicant has made every attempt to secure the presence of Hupe before the appellate Court, and that on facts the order calling upon him to pay Rs. 500 as the forfeited amount of the bond was not justified.---
19. In conclusion we are of the firm view that the recording of an order of forfeiture of bond is a must for issuing notice to the sureties to show cause why the surety bond should not be forfeited and further hold (as held in AIR 1960 SC 1185), that "section 514, Cr. P. C. Shows that before a surety becomes liable to pay the amount of the bond forfeited it is necessary to give notice why the amount should not be paid and if he fails to show sufficient cause, only then can the Court proceed to recover the money. When no opportunity has been given to a surety to show cause why he should not be made to pay, the proceedings cannot be said to be in accordance with law and should therefore be quashed". The question referred is thus answered in the affirmation.
S. G. D./S. A. H.