1. Vide Judgment dated 1st November 1971, it was ordered that the applicant should be taken into custody to serve out the sen--tence in lieu of fine if not paid. The amount of fine was Rs. 15,000. The applicant was not taken into custody for reasons which are not clear but on 9th December 1971 an application purporting to be under section 388, Cr. P. C. Was filed on behalf of the applicant, in which the following request was made : "It is therefore prayed that this Hon'ble Court may be pleased to grant a month's time for payment of fine and request for easy instalments of the same."
2. This application was put up before me on 17th December 197.1, and ordered notice to issue to the State. Again on 27th December 1971, this application came up for hearing before me in the pre-- sence of the State counsel and that of the State Bank of Pakistan. I granted the application to the extent that I directed the applicant to deposit the amount of fine in two equal instalments, the first instalment to be paid within one month from the date of the order and the second within 30 days thereafter and at the same time I ordered the suspension of the sentence on furnishing bond to the extent of Rs. 15,OtrO by the applicant with one surety in the like amount to the satisfaction of the Nazir of this Court with the con--dition that he shall appear on-the dates within which the instal-- ments were ordered to be paid. I he surety bond was furnished on 22nd January 1972, but before the expiry of the period for the payment of the first instalment, the applicant applied to the Court under section 386, Cr. P. C. On 24th January 19't2, for suspension of sentence awarded in default and for the issue of warrant to the Collector. Larkana for the recovery of the amount of Rs. 15,000 by attachment and sale of his agricultural property. This applica--tion came up for orders on 26th January 1972 before my learned brother A. K. Sheikh, J. And his Lordship ordered notice to issue to the Advocate-General and Mr. A. A. Fazeel. Advocate. After notice this application was fixed on several dates but time was taken to support the proposition advanced that the fine should be recovered first before the sentence in lieu of fine is executed. This application has now been fixed before me.
3. Mr. Abbas Zia, the learned counsel for the applicant, cited Siddappa v. State (AIR 1957 Mys: 52) in support of the proposition that it is the duty of the Court to recover the amount of fine in terms of sec--tion 386 (1), Cr. P. C. And it is only in case where the fine cannot be recovered that the convict can be sent to jail to serve out the sentence of imprisonment in lieu of fine. According to him, the facts of that case are analogous to the present one as an application has also been filed before the sentence in default of payment of fine has been put into execution and, therefore, the benefit of the view taken in that case should be extended to the applicant. He relies on the observations in para. 11 at page 55 of the report to support his stand. In that case there was substantive sentence besides the acceptance of fine and imprisonment in default. While undergoing the substantive sentence the convict had applied to the Magistrate to recover the fine from his properties and after having undergone the substantive sentence and while still undergoing the sentence in lieu of fine again applied to the Magistrate for the same action, but no orders were passed. It was after he had undergone the sentence in default of fine that the Magistrate issued a warrant for the attachment of his properties for the recovery of fine as pro--vided by section 386 (1), Cr. P. C. The precise question before the Court was whether in terms of the proviso, did special reasons exist to justify the writ of attachment far the recovery of fine and the case was decided on the language of the expression, "no Court shall issue such warrant unless for special reasons to be recorded in writing it considers it necessary to do so" in the proviso. This is the ratio decidendi of the case. However since no special reasons w: re made out in that case the warrant was stayed. What has been observed in para. 11 at page 55 of the report refers to in-- action of the State in not recovering the fine and the failure of the Magistrate to pass orders on the two applications. In this context, the Court also held that section 386, Cr. P. C. Casts a duty on the State to recover fine imposed on an offender by a Court of law and that no attempt to recover the fine should be made in the first instance and it is only when the fine is not recovered that the offender should be made to undergo imprisonment in lieu of fine. The conclusion that an attempt to recover the fine should be made first is not apparent from the language of section 386 (1). Cr. P. C. Nor can the concept of suspension of sentence be inferred from it. In my opinion, section 386 (1), Cr. P. C. Is a provision which empowers the Court to recover the fine either imposed as a punishment or otherwise as provided under the Code and provides the manner in which the fine should be recovered, while the proviso makes it clear that the power to recover fine can also be exercised in case where the sentence directs that in default of payment of fine the offender shall be imprisoned. The under going of such imprisonment does not, however, operate as a dis--charge or satisfaction of the order for payment of fine which may nevertheless be levied for "special reasons" as is envisaged in the proviso. The only provision to Chapter 28 under the heading "Of Execution" which relates to the suspension of the sentence is section 33R, Cr. P. C. Where .If fine is not paid forthwith the Court can grant time for the payment of fine by instalments, in which case it can suspend the execution of the sentence of imprisonment and release the offender on the execution of a bond as provided by section 388 (1) (b), Cr. P. C. The learned Judge who decided the Mysore case has not taken into consideration section 388, Cr. P. C.
4. And if I may say so with respect, but misconstrued section 386 (1), Cr. P. C. I am, therefore, unable to subscribe to the view that section 386 (1), Cr. P. C. Cast a duty on the State to make an attempt to recover the amount of fine first sad it is only who it cannot be recovered that the sentence of imprisonment in lieu o fine should be put into execution. The sentence was suspended vide order dated 27th December 1971, and in default of payment of instalment the sentence of imprisonment was liable to be carri--ed into an execution at once and I order accordingly.
5. The surety did not produce the applicant as conditioned by the bond on the due date as is apparent from the order dated 3rd April 1972, passed by my learned brother Khuda Bux Marri, J. The surety had taken time to, deposit the amount forfeited and the liability of the surety stands conclusively determined by that order. The learned counsel for the applicant contends that that on 26th January 1972, when the notice was ordered to issue on the application under section 386 (1), Cr. P. C. The applicant should be deemed to be present even though his presence is not recorded in the order. If that was so, then the surety should have taken that stand when a show-cause notice was issued by my learned brother Khuda Bux Marri, .J. On 10th March 1972. The surety in response to the notice appeared on 27th March 1972, and wanted time to engage a counsel. He was allowed time and was further directed to produce the applicant on 3rd April 1972, on which date he filed an application saying that the applicant had gone to the interior to make arrangements for the payment of fine and that his present whereabouts was not known to him but that he is likely to return to Karachi within the next fortnight. One other application was also filed by the surety in which it was stated that he was only responsible for producing the applicant on two dates, viz., 26th January 1972, and 26th February 1972, but nothing was stated as to why the applicant was not produced on these dates. He pleaded for his discharge on the ground that he had not stood surety for the amount to be paid as fine. At the same time, he took time to do so. It was further ordered that no further time could be allowed. Even today the applicant is not present in Court and it is stated by his counsel that he is at Larkana. In view of all this I am unable to see how I can pre-- sume the presence of the applicant either on 26th January 1972, or on any date thereafter. As observed earlier, there is now no scope to dispute the liability of the surety. The Nazir is ordered to take steps to recover the amount of the bond. This order die poses of Application. No. 33/72 and the office notice as to the non-deposit of the amount by the surety.