ABDUL KARIM KUNDI, J.-- One Zardullah along with three others were charged under section 11/16, Offences of Zina (Enforcement of Hudood) Ordinance, 1979 read with section 451/506/34, PPC vide FIR No.72 P.S. Daggar, District Swat, dated 2-3-1986. They were granted bail by the Assistant Commissioner Daggar against bonds- in the sum of Rs.40,000 with two sureties each. In compliance Zardullah Khan accused furnished a personal bond in the sum of Rs.40,000 as well a bond by these sureties Mohammad Yousaf and T'aj Mohammad, the. Writ petitioners in the said amount binding themselves jointly and severally to forfeit the sum of Rs.40,000 in default of the attendance of the accused in the Court of Assistant Commissioner or any other Court to which the case is entrusted. Complainant had moved for the cancellation of the bail of the accused in the Court of Sessions Judge, Swat vis-a-vis the offences under the Offences of Zina (Enforcement of Hudood) Ordinance, 1979 who issued notice to the accused, out of Zardullah could not turn up due to his alleged departure out of country. Afterwards his sureties were called upon to cause his attendance who too failed in causing -his attendance. Accordingly the bail bonds of the sureties of the writ petitioners were forfeited. They were remitted 4/5th of the penalty and enforced upon the payment of 1./5th of the penalty i.e. Rs.8,000 which they had paid within the prescribed period, receipt placed on file. The learned Sessions Judge had dismissed the complainant's application for cancellation of bail of all the accused so much so that he did not pass formal orders of the cancellation of the bail of Zardullah Khan accused, the bail bonds of whose sureties were forfeited by him.
2. The complainant has simultaneously filed an appeal in the Court of Additional Commissioner-I against the order of Assistant Commissioner Daggar, granting hail to the accused for Penal Code offences since the accused were to face trial under the PATA Criminal Law (Special Provisions)
Regulation 1975 for the said offences. On non--attendance of his Court by Zardullah accused and the failure of his sureties, the writ petitioners to produce him, the learned Additional Commissioner proceeded to forfeit the surety bonds and imposed a penalty of Rs.20,000 on the sureties, the writ petitioners which was later on reduced to Rs.10,000 in revision by the learned Additional Secretary, Home. In the writ petition there has been challenged the forfeiture of the bonds and imposition of penalty on their part since the, bonds had already been forfeited and penalty also imposed and realised for the offence of the breach of bond by the learned Sessions Judge.
3: It was contended that under section 20 of the Regulation only bonds executed under sections 17 and 18 for keeping peace and good behaviour are liable to be forfeited and there was no corresponding provision for the forfeiture of the bail bonds furnished under section 16 of the Regulation. But bail is granted under section 16 of the Regulation by the Deputy Commissioner with powers as a Court under the Code of Criminal Procedure 1898 and in case there-has not been made an express provision for the forfeiture of bail bond under the Regulation, the same would not preclude the forums under the PATA Regulation to forfeit the bond and impose the penalty on the delinquent in case of default. There has been vested an authority in the Commissioner under section 23 of the Regulation' -to exercise all or any of the powers conferred on an appellate Court by the Code of Criminal Procedure in deciding an appeal while under section 24 of the Regulation Government has been vested with powers of revision on the pattern of revisional powers provided under the Code of Criminal Procedure. A forum which can grant a bail and as a corollary accepts and attests bail bond he has also the power to forfeit the bond and impose the penalty in case of the breach of bond. Accordingly the arguments that the forums under the PATH Regulation do not possess the- power to forfeit the bail bonds and impose the penalty does not seem tenable.
4.In fact in the instant case the bail bonds of the writ petitioners were once forfeited followed by the imposition of penalty by the Court of Sessions Judge, Swat, as such the bail bonds stood discharged and the writ petitioners, the sureties were absolved of any further liability thereunder.
The bonds were forfeited as a whole. The writ petitioners were served with a show-cause notice of the imposition of the penalty of the total sum. It is, however, a different thing if the Court in its discretion remitted a portion of the penalty and enforced the payment in part only as duly empowered under section 514(5) Cr.P.C. The-sureties has bound themselves severally and jointly to pay a penalty of Rs.40,000 and if suppose on the forfeiture of their bonds they would have been imposed upon a penalty of total sum and also realised therefrom a pertinent question would arise if they would still be liable to the forfeiture of the same bonds once again to be followed by imposition of penalty since because some of the offences were triable by a different forum. One would readily, answer the proposition in negative. It would be -a clear case of double jeopardy whereagainst protection has been provided under Article 13 of the Constitution of the Islamic Republic of Pakistan 1973.
5. Not that the bonds furnished by the writ petitioners stood discharged on forfeiture under the orders of learned Sessions Judge, Swat followed by imposition of penalty and also resultantly the bail of the accused stood impliedly cancelled and -there need not have been subsequent forfeiture of the non-existent bail bonds followed by the imposition of penalty once again, it was additionally represented before us that the case of the FIR has since been cancelled vide the order of SDM, Bunair dated 24-12-1986 (copy placed on file). AS such even the equity would demand that there should 'be no longer any penalization of the sureties, the writ petitioners for the default of the attendance of an accused against whom the very case has since been dropped.
6.In view of what has been stated above we would accept this writ petition, set aside the orders of the Additional Commissioner dated 19-7-1986 and those of the Additional Secretary, Home, dated D 12-10-1986 after having found the said orders bad in law and equity which we accordingly declare without lawful authority and to. Be of no legal effect. Parties are left to bear their own costs.