MUHAMMAD KHIYAR J:- This petition under section 561-A Cr.P.C, calls in question the order dated 20- 7-1988 of the learned Additional Sessions Judge, Bannu, whereby bail bonds of Nawab Khan accused were confiscated in favour of the State and Ilaqa Magistrate was directed to recover the confiscated amount from the petitioners who stood sureties of Nawab Khan accused for his appearance in Court. The petitioners have also prayed for quashment of proceedings u/s 514 Criminal Procedure Code pending against them in the Court of EAC-I1I, Bannu.
2. The petitioners, Nawaz Khan and Atlas Khan, stood sureties for appearance of Nawab Khan in the trial Court till the decision of the case registered u/ss 302/307/148/149 PPC at police station Ghoriwala vide F.I.R.No.177 dated 16-8-1983. Nawab Khan accused did not appear at the trial held in the months of June/July, 1988 and in consequence thereof the learned trial Judge summoned the petitioners who appeared before him on 13-7-1988. They were directed to produce the accused Nawab Khan on 20-7-1988. Since they failed to produce the accused on that day, therefore, the learned Additional Sessions Judge, Bannu, ordered forfeiture of bonds and Ilaqa Magistrate was directed to recover the confiscated amount from the sureties. Nawab Khan accused was declared proclaimed offender, and was ordered to be proceeded against u/s 512 Cr.P.C. It may be stated here that accused Nawab Khan alongwith some other co- accused were acquitted by the learned trial Judge on 10-10-1988. On the direction of the learned Additional Sessions Judge, Bannu, the learned EAC-III Bannu started proceedings against the sureties u/s 514 Cr.P.C, and on 24-10-1988 asked them to furnish bail bonds in the sum of Rs.10,000/- with one surety each for their attendance in Court. The learned counsel representing the petitioners in the Court of EAC-III Bannu submitted an application that since the accused Nawab Khan was acquitted, therefore, forfeiture of bail bonds of the petitioners was against the law and the said amount should not be recovered from them. The learned Magistrate placed the application on file with the following observations:- "As the learned Additional Sessions Judge has already passed order of the confiscation of the bail bonds of the sureties of Nawab Khan accused on 2(1-7-1988 has directed this Court to recover the confiscated amount from the sureties, there. .. This Court is not empowered to touch the order of the learned Additional Sessions Judge, Bannu, dated 20-7-1988".
The above order was challenged in revision before the learned Additional Sessions Judge, Bannu, who vide order dated 4-1-1989 dismissed the revision petition with the following remarks.- "Counsel for the petitioners and SPP for State present. As this Court has already passed confiscation order, therefore, this instant revision petition is incompetent as the impugned order is appealable. The revision petition is, therefore, dismissed".
3. Aggrieved from the order passed by the learned Additional Sessions Judge and from the proceedings initiated u/s 514 Cr.P.C., the petitioners have now invoked the inherent powers of this Court under section 561-A of the Criminal Procedure Code.
4. Mr. Khawaja Nawaz Khan, Advocate for the petitioners, argued that the order passed by the learned Additional Sessions Judge is unlawful for the reason that before forfeiture of the bonds no opportunity of hearing was afforded to the petitioners and that they could not be penalized for negligence of the accused.
5. Mr. Muhammad Salim Khan (Gandapur, the learned State counsel, half-heartedly supported the proceedings initiated under section 514 Cr.P.C.
6. T le procedure of forfeiture of bonds is given in Section 514 Cr.P.C. The relevant provisions contained in Sub-sections (1) and (2) of section 514 ,Cr.P.C. Are photoreduced below:-
(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 penally thereof, or to show cause why it should not be paid.
(2) If sufficient cause is not shown and the penally 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".
7. The procedure laid down is that when the bond is for appearance before the Court then the Court is to satisfy itself that such bond has been forfeited and shall record the grounds of such proof and may call upon such person bound by such bond to pay the penalty thereof or to show cause why it should not be paid. If sufficient cause is not shown and the penalty is not paid, the Court may procedosed to recover the same by issuing a warrant for attachment and sale of the movable properly belonging to such person or his estate if he be dead, in the instant case, the learned Additional Sessions Judge does not appear to have satisfied himself about the forfeiture of bonds. He has without calling upon the sureties to show cause directed the Ilaqa Magistrate to recover the amount from them. The order dated 20-7-1988 is, therefore, patently illegal. In number of reported cases, the Superior Courts have held that when the bond is for appearance before the Court, the Court is required to record grounds to justify the forfeiture of bonds before issuing notice to the sureties. The Court is to make enquiry to ascertain whether absence of the accused deliberate or beyond his control. In Re: State appellant Vs. Abdul Sattar respondent (1976 P. Cr.L.J.
474 Karachi) while discussing the provisions of section 514 Cr.P.C, it was held as under:- "I have examined the case and heard the parties. Admittedly in this case no enquiry was made to ascertain as to whether the absence of Masood Noorani on 28-3-1970 was due to circumstances beyond his control or he had actually absconded to avoid appearance before the Court. In the absence of such an enquiry the order imposing the penalty is patently illegal. It is also manifest from the record that the Court did not first declare the forfeiture of the bond nor recorded the grounds for finding that forfeiture of bonds was justified under the law before issuing notice to the surety. The order whereby penalty was imposed is, therefore, illegal on this score as well".
8. In another case reported as Muhammad Aimai appellant Vs. The State respondent (1968 P.
Cr.L.J.682 Karachi), after considering the case law from Indian Jurisdiction and of the Supreme Court of Pakistan in Dildar Vs. The State (PLD 1963 Supreme Court 47) it was held that forfeiture of bond was not justified when the Sessions Judge had not recorded his grounds before ordering forfeiture of bond. The Supreme Court, in the case of Dildar. Held as under:- "Where, however, we find defect in the proceedings taken against the appellants is in this, namely, that no effort appears to have been made by the Courts below to enquire into the relevant matters affecting the degree of their responsibility. Sureties arc not constituted as custodians of accused person, and in the absence of proof to the contrary, it may generally be assumed that they do not gain by standing surely. The system of releasing accused persons on bail has several aspects of importance to the administration of justice generally, lt 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 lime, the release of accused persons on bail assists in the. Administration of justice by preventing over-crowding in the available spaces of imprisonment. 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 la-gc 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 lor 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. These matters have not been enquired into by the Courts below. We have accordingly thought fit tor question the two sureties ourselves on these points".
2. Ln the case of Banaras Khan Vs. The State reported in 1975 P. Cr.L.J. 954(Karachi. His lordship the Chief Justice, relying upon Dildar's case observed.- "I think there can be no doubt, whatever, that the surely is liable for the entire amount and that in law the learned Judge was quite competent to forfeit the whole sum. It does not necessarily, however, follow that the entire sum should have been forfeited; although the bond is in the nature of a contract the purpose of the bond is to ensure the presence of the accused person and not always to extract a penally. Courts have always, therefore, looked into the attendant circumstances of a case to see how much of the bond ought to be forfeited."
The aforementioned decisions of Superior Courts go to show that the Court in not enquiring into the circumstances of the case and forfeiting the entire amount voilalc the provisions of section 514 Cr.P.C, ln the instant case also, the learned Additional Sessions Judge failed to comply with the provisions of section 514 Cr.P.C. He has neither recorded grounds of proof of his satisfaction of forfeiture of bond nor has afforded any opportunity of hearing to the sureties i.e the petitioners. In the circumstances of the case to meet the ends of justice and to observe the requirements of law. I would direct the learned Additional Sessions Judge, Bannu to proceed against the petitioners in accordance with the provisions of section 514 Cr.P. Cr.
3. Resultantly, the petitioners' prayer for quashment of the proceedings is not accepted and the case is remanded to the learned Additional Sessions Judge, Bannu to proceed in the matter strictly in accordance with the provisions of section 514 Cr.P.C. This criminal miscellaneous is disposed of accordingly.