' By this common judgment I propose to dispose of both the above revision applications.
2. Accused Qamar Gul involved in Crime No,559 of Police Station Korangi under section 302, P.P.C.
(Criminal Case No,2014 of 1985), was allowed bail in the sum of Rs,1,00,000 (Rupees one lac only) with two sureties and P.R. In the like amount, by Mr. Mukhtar Ahmed Junejo, learned Sessions Judge
(East) Karachi (now Mr. Justice Mukhtar Ahmed Junejo), vide order, dated 12-6-1988. Applicants Momin Khan (Criminal Revision No,1 of 1989), and Abdul Rehman (Criminal Revision No,16 of 1989) stood sureties for accused Qamar Gul and bound themselves to produce him before the Court on every date of hearing till otherwise directed. Accused Qamar Gul attended the Court regularly when on 711-1988 (date of final arguments) he remained absent without any intimation. The case was then adjourned to 8-11-1988, when the learned Sessions Judge (East) Karachi, passed the following order:-- "Accused is on bail, but called absent and no intimation is recevied. D.C. And A.P.P. Are present. It is now 12-30 p.m. Since the accused is called absent the bonds executed by the accused stand cancelled and bonds executed by his surety stand forfeited. Put off to 23-11-1988. Issue N.B.W.
Against the accused and notice under section 514, Cr.P.C. Against the surety."
3. On 23-11-1988, accused Qamar Gul again failed to appear before the Court. Applicant/Surety Momin Khan (Criminal Revision No,1 of 1989), however appeared. He made a prayer seeking time to produce the accused. His prayer was refused and he was directed to deposit a sum of Rs,50,000 by way of penalty in the following words:-- "Surety Momin Khan is present in person. He bound himself in the sum of Rs, one lac for production of the accused on each and every date of hearing and in default for forfeit the sum of bail bond to the Government. Accused has absconded away and the explanation for absence is false and concocted on the face of it. No document or evidence is produced in support of the alleged illness of the accused. Since the bail bond has been forfeited I direct the surety to deposit a sum of Rs,50,000 by way of penalty failing which his movable property be attached. Seven days time is allowed for this purpose."
4. On 7-12-1988 applicant/surety Momin Khan again appeared before the trial Court seeking extension of time, but his application was rejected with the following order:--
5. It is in these circumstances that applicant Momin Khan has filed Criminal Revision No,1 of 1989.
6. On 2-14989 Mr. M.S. Khattak Advocate for applicant/surety Abdul Rehman (Criminal Revision No, 16 of 1989), appeared before the trial Court and sought time. He was allowed time upto 16-1-1989, but without any result. On this date the learned Sessions Judge passed the following order:-- 'Accused called absent. D.C. Also called absent. A.P.P. Is present. N.B.W. Issued against the accused Qamar Gul is returned unexecuted. Writ of attachment issued against the surety Momin Khan is still not returned. Surety Abdul Rehman and his counsel are called absent from morning and no intimation is received nor he produced the accused in Court and also not filed reply of the show- cause notice. Since the surety Abdul Rehman is called absent and the bail bond has been forfeited, I direct the surety Abdul Rehman to deposit a sum of Rs,50,000 by way of penalty, failing which his immovable property be attached. Seven days' time is allowed for this purpose. Put off to 1-2-1989.
Issue N.B.W. Against the accused. Issue fresh attachment order against the property of surety Momin Khan in the sum of s.50,000. Surety Abdul Rehman is given seven days' time for the depositing the money of fine, failing which after seven days also issue writ of attachment in the sum of Rs,50,000 against the immovable property of the surety Abdul Rehman."
7. It is in these circumstances that applicant Abdul Rehman has filed Criminal Revision No,16 of 1989.
8. I have heard Mr. M.S. Khattak, learned counsel for applicant in both the revision applications and Mr. Imam Bux Shaikh, learned counsel for State. The latter has not supported the impugned orders.
9. Section 514, Cr.P.C. Which lays down the procedure of forfeiture of bond, provides as follow "514.--- (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 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 authorise 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 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 Courts 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 107 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, 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. It will be seen that under section 514, Cr.P.C. The following are essential requirements regulating the procedure of forfeiture of bond:--
(i) It must be proved to the satisfaction of the Court that a bond has been forfeited; (4). The Court must record grounds for such proof of forfeiture;
(iii) A show-cause notice should be issued by the Court to the surety why the penalty should not be paid for such breach;
(iv) If sufficient cause is not shown, or if the penalty is not paid the Court may proceed to recover the same; and
(v) The recovery can be made by issuing a warrant for the attachment and sale of the movable property belonging to the surety.
11. The record shows that accused Oamar Oul remained absent without any intimation on 7-11-1988, when the case was fixed for final arguments and was likely to be disposed of on that day. The defense advocate was present on that day, but he too had obviously no instructions. The hearing of the case was then adjourned to 8-11-1988 Mien the accused again remained absent without any intimation. On ibis date the learned Sessions Judge forfeited the bond on account of absence of accused without any intimation. He has, therefore, followed the dictum as laid down by H.T.
Raymond, J. (as he then was) in Sanwan and another v. The State reported in PLD 1965 Kar. 516, in letter and spirit.
12. For recording grounds of proof of forfeiture of bond no type-design form or particular set of words has been prescribed. Therefore, in accordance with the common sense and requirement of justice all that the order must show is that the Court had applied its mind to all the facts leading to such forfeiture. In a case of a bond for appearance before the Court, the cause for forfeiture thereof arises immediately on the failure of the accused to appear before the Court on the given date without any reasonable cause and no further proof for violation or breach of the bond is called for..It may be recalled that accused Qamar Gui remained absent on both the above dates viz. 7-11- 1988 and 8-11-1988 without any intimation. His advocate who was present on both the occasions had no instructions. No exception, therefore, can be taken to the order of forfeiture of bond.
13. Applicant Pvlomin Khan who was served with a show-cause notice for appearance on 23-11- 1988, obeyed the directions of the Court and made an application for the condo nation of absence of accused on the ground of illness with undertaking to produce medical certificate in proof thereof. This prayer which appears to be reasonable was rejected summarily and a penalty of Rs,50,000 was imposed on him. The opportunity contemplated by subsection ( I) of section 514, Cr.P.C. Must be a real, fair and reasonable. Opportunity. It should not be a make-belief or a sham affair in this view of the matter the order, dated 23-11-1988 passed by learned Sessions Judge cannot be sustained and is set aside.
14: Undoubtedly an opportunity was provided to applicant Abdul Rehman (Criminal Revision No,16 of 1989), when he prayed for time on 2-1-1989, but he was allowed only 14 days' time, which in my view was not sufficient to locate the accused and secure his attendance. The order of issuance of warrant of attachment in respect of immovable property of applicant Abdul Rehman is patently illegal. As observed earlier a warrant of attachment can only be issued for attachment and sale of movable property of surety. I would, therefore, set aside the order, dated 16-1-1989, passed in relation to applicant Abdul Rehman.
15. In the result both the revision applications are allowed. The order, dated 23-11-1988 in Criminal Revision No,1 of 1989 and the order, dated 16-1-1989 in Criminal Revision No,16 of 1989 are set aside.
The case is remitted to learned Sessions Judge (East) Karachi, for passing the orders afresh after providing sufficient and reasonable opportunities to both the applicants to produce the accused and to show cause as to why they should not be ordered to pay the penalty. In doing so the learned Sessions Judge shall take into consideration the dictum laid down by the Supreme Court in Dildar and another v. The State reported PLD 1963 SC 47.