AMIRUL MULK MENGAL, J.- Petitioner Abdul Ghani stood surety for accused Sakhi Dost Jan in the sum of Rs.10,00,000/- (Rupees ten lacs) in a bail matter granted in F.I.R. No. 2(S)/1991 dated 5.1.1991 at the instance of P.N.C.B. Under sections 3/4/26 of the Prohibition (Enforcement of Hadd) Order, 1979.
2. The aforementioned case was transferred to the file of Special Court for Speedy Trials Baluchistan, Quetta and the learned Judge took cognizance of the case and ordered its registration on 8.6.1992. Simultaneously he issued non- bailable warrants of arrest of accused Haji Sakhi Dost Jan and another accused Haji Ali Jan (absconding). Notices were also issued to the sureties of the accused persons with directions to produce the accused on the next date of hearing and the matter was fixed for framing of charge and recording of evidence on 15.6.1992. On the aforesaid date accused Sakhi Dost Jan was not served (as incorporated in the order), although in fact his warrants of arrest could not be implemented. However, the learned Special Judge found on 15.6.1992 that he was already granted bail by the Sessions, Judge, therefore, instead of warrants of arrest it was ordered to issue summons for his appearance. Notice was also issued to the second surety of the accused namely Haji Wali Muhammad for production of the accused on the next date of hearing. Besides learned Special Judge regarding surety Abdul Ghani observed as under:- "In the circumstances surety bonds furnished by him are hereby forfeited. Issue notice to him as to why the surety amount may not be recovered from him".
However, matter was adjourned to 17.6.1992. On this date accused Sakhi Dost Jan was present. His surety Abdul Ghani was also present. The surety sought the to file reply to the notice. The case was fixed for further proceedings on 22.6.1992. The Special Judge heard Mr. Ehsanul Haque, Advocate appearing on behalf of accused as well as his surety Haji Abdul Ghani. After hearing the parties learned Judge rejected the plea and explanation given by surety Abdul Ghani. Accordingly he was ordered to deposit forfeited amount before next date of hearing. It is this order which has been impugned in this Constitutional Petition.
3. Heard Mr. K.M.A. Samadani, Advocate for the petitioner, Mr.M. Riaz Ahmad, Standing Counsel and learned Advocate General Baluchistan.
4. Before proceeding further we would like to dispose of the preliminary objection raised by the respondents regarding maintainability of the present constitutional petition. Both the learned Standing Counsel as well as Learned Advocate General Baluchistan challenged the maintainability of the present petition on the ground that adequate alternate remedy was available, therefore, the present petition under Article 199 of the Constitution of Islamic Republic of Pakistan was not maintainable. Lengthy arguments were advanced from both sides on the point.
5. According to Mr. Riaz section 13 of the Special Courts for Speedy Trials Act, 1992 (hereinafter referred to as the "Act") enjoins a right of appeal, against the final judgment of the Special Court, to the Supreme Appellate Court. Therefore, an alternate remedy by way of appeal was clearly available to the present petitioner to invoke the appellate jurisdiction of the Supreme Appellate Court. According to learned Standing Counsel it is now well settled that in the wake of availability of right of an appeal no constitutional petition is maintainable. While supplementing his arguments Learned Counsel argued that in fact the petitioner did file an appeal but then withdrew the same.
Thus in other words he did not press the appeal, hence he is not entitled to invoke constitutional jurisdiction of this Court. Mr. Riaz secondly contended that the order for forfeiture of surety bond and ordering payment of the surety amount has been passed under sub-section (5) of section 5 of the Act, as the Special Court has the powers of a High Court under the said section. It was reiterated that since the order is final as regards the surety within the meaning of section 13 of the Act, therefore, the same was appealable to the Supreme Appellate Court.
6. The constitutional jurisdiction of High Court cannot be invoked without first availing adequate remedy of appeal. Mr. Riaz also referred to an appeal which has been admitted for hearing against the judgment of Special Judge, Speedy Trials, by the Supreme Appellate Court.
7. On merits, too, the learned Standing Counsel argued that nothing is wrong with the order passed by the learned Special Judge because in the first instance notice was issued to the surety for production of accused on 15th of June, but the surety despite service failed to produce the accused on 15.6.1992, therefore, his bail bonds were forfeited and on a subsequent date although he produced the accused but notice was given to him as to why the amount of surety bond may not be recovered. This all has been done in strict compliance of section 499 Cr.P.C, read with section 514 Cr. P.C.
8. Advocate General Baluchistan challenged the maintainability of the petition on the ground of misjoinder of parties. According to him the Special court is a creation of a Federal Statute. The case against accused person was registered at the instance of P.N.C.B. Which is a Federal institution, therefore, impleading Government of Baluchistan as a respondent was totally un-necessary and uncalled for. He further argued that said objection was raised but the petitioner's counsel failed to amend the title and insisted to make Provincial Government a party which was a malafide act.
9. On merits learned Advocate General contended that Special Court was competent as trial court to forfeit the bond and to issue show cause notice as to why the amount be not recovered from the surety. He also referred to section 5(5) of the Act as well as section 514 Cr.P.C, contending that no violation whatsoever has been made of the aforesaid sections, therefore, no exception can be taken on the orders so passed particularly the constitutional petition is not maintainable on two counts. Firstly, an adequate remedy was available; and secondly, order was with lawful authority.
Besides learned Advocate General argued that there were two forums available to the petitioner either to move the Trial Court itself under section 514(5) Cr.P.C, or in the alternative to have filed a revision petition under section 435 read with section 439 Cr.P.C, challenging the order because the Special Judge under the Act had exercised the powers under section 514 Cr.P.C.
10. The learned Advocate General urged that accused failed to attend the court on 15.6.1992 and the surety also failed to produce accused on the said date, therefore, his subsequent appearance after two days i.e. 17.6.1992 was totally redundant. This appearance was voluntary whereas the terms of the bond were violated.
11. While replying the aforementioned objections Mr.K.M.A. Samadani learned Advocate for petitioner after recounting the relevant amendments in the Constitution regarding Article 212-B stated that the entire arrangements were interim and for temporary period because Speedy Trial Courts shall cease functioning after July, 1994. It was also argued that jurisdiction of such courts is extremely limited and exclusive, therefore, while interpreting its jurisdiction much care and caution shall be taken by the Court, so that such jurisdiction may not be enlarged from what the legislature has conferred upon it.
12. It was further argued that since the Courts under the Act have exclusive jurisdiction, therefore, it is none of the functions of the superior courts either to add or to infer impliedly jurisdiction which has not been expressly conferred upon such courts.
13. In order to determine this question, it would be necessary to reiterate that the petitioner firstly filed an appeal under the Act but before the same could be registered and fixed for hearing it was withdrawn. Thus in fact no appeal had been registered nor fixed for hearing before the Supreme Appellate Court. Mr.K.M.A. Samadani while explaining this position argued that in fact no alternate remedy was available by way of filing an appeal in respect of the persons who were not accused and whose case has not been referred to the Special Judge, Speedy Trial Court. It all relates, according to the learned counsel, to an accused person or persons whose case by a notification of the Federal Government has been withdrawn from ordinary courts and has been ordered to be tried by the Special Judge for Speedy Trials.
14. Thus the question of maintainability of constitutional petition on account of availability of alternate remedy would arise only when the law expressly provides an appeal under the Statute, in our considered view this question is very pertinent to decide maintainability or otherwise of the Constitutional Petition. We are mindful of the latest judgment of the Supreme Court on the point (1993 S.C.M.R. 1810) wherein it has been held that High Court should not entertain a constitutional petition when appeal has been preferred and is pending, but no such controversy is involved in the present constitutional petition.
15. The exact question before us is whether at all a right of appeal has been provided for under the Act, in respect of an order of the nature which is impugned before us in this Constitutional Petition.
16. It would be profitable and expedient to reproduce section 13 of the Act which reads:- "13. Appeal:- (1) An appeal against the final judgment of the Special Court shall lie to the Supreme Appellate Court which shall consist of:-
(a) a Chairman being a Judge of the Supreme Court to be nominated by the Government after consultation with the Chief Justice of Pakistan; and
(b) two Judges of the High Courts to be nominated by the Government after consultation with the Chief Justice of High Court concerned.
(2) The Government may establish as many Supreme Appellate Courts as it may deem necessary.
(3) Copies of the judgment of a Special Court shall be supplied to the accused and the prosecutor free of cost on the day the judgment is pronounced and the record of the trial shall be transmitted to the Supreme Appellate Court within three days of the decision.
(4) An appeal under subsection (1) shall be preferred by a person sentenced by the Special Court to the Supreme Appellate Court within seven days of the passing of the sentence.
(5) The Attorney-General, Advocate-General, Deputy Attorney General, Assistant Advocate General, Standing Counsel or an advocate appointed in this behalf shall on being directed by the Government, present to the Supreme Appellate Court an appeal against the order of acquittal or a sentence passed by a Special Court within fifteen days of such order.
(6) An appeal under this section shall be heard and decided by the Supreme Appellate Court with in thirty days of such orders.
(7) A Supreme Appellate Court shall sit at such places, and have jurisdiction within such territorial limits, as may be fixed by the Government.
(8) In exercise of the appellate jurisdiction, a Supreme Appellate Court shall, subject to the provisions of this Act, have all the powers conferred on an Appellate Court under Chapter XXXI of the Code.
17. From perusal of the Act IX of 1992 it becomes clear that under section 13 of the Act, the right of appeal has been provided against the final judgement of the Special Court which would lie to the Supreme Appellate Court. But a careful examination of the same would reveal that in section 13(4) of the Act such an appeal shall be preferred by a person sentenced by the Special Court within seven days of the passing of the sentence.
18. Both the State counsel laid much emphasis that forfeiture of bond and order for payment of amount is a final judgement in so far as the surety was concerned, therefore, remedy by way of filing an appeal to the Supreme Appellate Court was available to the surety for the simple reason that the order requiring the surety to make payment of the security bond was final as far as the surety was concerned. Ostensibly this argument looks convincing and appears to be weighty but from minute perusal and deep scrutiny one may see that if section 13 is read as a whole it envisages that only a person sentenced by the Special Court can, within 7 days of passing of sentence file such an appeal. The judgement may be final so far as the surety is concerned but the question is whether forfeiture of bond and order requiring the surety to deposit the 'security amount' would tantamount a sentence? The plain dictionary meaning of word sentence as expressed in the Concise Oxford Dictionary is "decision of law court, esp. (declaration of) punishment allotted to person convicted in criminal trial". In Ballentine's Law Dictionary the word sentence has been defined as "a judgement in a criminal case denoting the action of the court in formally declaring to the accused the legal consequences of the guilt which he has confessed or of which he has been convicted". Likewise in Black's Law Dictionary the word sentence means " the judgement formally pronounced by the court or judge upon the defendant after his conviction in a criminal prosecution, awarding the punishment to be inflicted. Judgement formally declaring to accused legal consequences of guilt which he has confessed or of which he has been convicted".
Thus forfeiture of bond and order requiring payment of security amount can not be termed as sentence but it is a mere penalty; whereas section 13 provides for filing of an appeal against sentence that too, within seven days.
19. It may further be observed that apart from section 13 of the Act, section 5(5) of the said Act would be more relevant for setting at rest the issue in question which reads as follows:- "5. Jurisdiction of Special Courts: -
(1) ................
(2) ...............
(3) ................
(4) ................
(5) The Special Court shall have, in respect of a case triable by it, all the powers which a High Court has in relation to a trial before it under the Code, including the powers relating to the grant or cancellation of bail or recall or amendment of any order, and shall, subject to this Act, follow the procedure provided in the Code for such trial".
20. Perusal of aforementioned section would indicate that the Special Court for Speedy Trials has been vested with the powers of a High Court to grant or cancel bail or recall or amendment in order and shall subject to this Act, follow the provisions of the Code of Criminal Procedure. Similarly we have already reproduced section 13 and from perusal of section 13(8) the Supreme Appellate Court has been conferred all powers which can be exercised by an appellate court under Chapter XXXI of the Code.
21. Perusal of Chapter XXXI would show that the appellate court may in an appeal from any other order alter or reverse such order. Section 423 Cr. P.C. Describing powers of appellate court in disposing of appeal are thus reproduced hereunder:- "423. Powers of Appellate Court in disposing of appeal:- (1) The Appellate Court shall then send for the record of the case, if such record is not already in Court. After perusing such record, and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and in case of an appeal under section 411- A, sub-section (2) of section 417, the accused, if he appears, the Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may:- (a)................
(b) ..............
(c) ...............
In an appeal from any other order, alter or reverse such order;
(d) ............
We have thus reproduced all the sections of law relevant for the disposal of controversy. The Special Judge, Speedy Trials may exercise all the powers of a High Court including---------- the powers relating to the grant or cancellation of bail or recall or amendment of any order and shall follow the procedure provided in the Code of Criminal Procedure. Thus it is not conceivable that the Speedy Trial Court can not pass an order under section 514 Cr. P.C; in respect of a security bond of a surety if the accused person fails to make appearance. In fact this power has never been challenged. It is thus held that the Special Judge Speedy Trial Court is competent to forfeit a bond and issue notice for recovery of "security amount". The procedure thus shall be governed under the Code of Criminal Procedure. The relevant provision of the Code is to be seen in order to determine whether an appeal in such eventuality would be competent or not. Relevant section is section 515 Cr. P.C. Which provides for an appeal against orders passed under section 514 Cr.P.C. It reads as under:- "515. Appeal from and revision of, orders under section 514:- All orders passed under section 514 by any Magistrate other than a District Magistrate, shall be appealable to the District Magistrate, or, if not so appealed may be revised by him".
It is thus evident that orders passed by any Magistrate other than District Magistrate shall be appealable to District Magistrate. However, the inherent powers of the High Court to revise such order has not been expressly barred.
22. Seen in the light of the aforementioned provisions the Supreme Appellate Court in exercise of its appellate jurisdiction is empowered to revise an order passed by a Special Judge other than the order of conviction or acquittal.
23. We are in total agreement with the arguments advanced by Mr. K.MA. Samadani that these forums which have been created in special circumstances for a transitory period, exercise special jurisdiction which can not be extended in any way. But we may simultaneously observe that the jurisdiction expressly conferred on such forums can not be taken away either.
24. Thus summarising the aforementioned discussion, we have come to the conclusion that section 13 of the Act provides a right of appeal against the final judgement of the Special Court and such appeal can be filed by a person sentenced by the Special Court to the Supreme Appellate Court within 7 days of the passing of the sentence. Similarly Attorney General, Advocate General, Deputy Attorney General and Assistant Advocate General and Standing Counsel or an Advocate appointed in this behalf shall on the directions of the Government file an appeal against acquittal or sentence passed by Special Court. This relates only to the trial of an accused or accused persons whose case has been withdrawn by the Federal Government from courts of ordinary jurisdiction and whose case has been tried by the Speedy Trial Court. Section 13 thus relates only in respect of an appeal filed by a person sentenced or by the State counsel at the instance of the Government to file such an appeal against acquittal. These rights of appeal are expressly conferred by the Statute.
25. But at the same the sub-section (5) of section 5 empowers a Special Judge of Speedy Trial Courts to pass orders in respect of grant or refusal of bail or consequential orders with reference to such proceedings i.e. Cancelling of bail or forfeiture of bond submitted by a surety. Such powers are equally express in sub-section (5) of Section 5 of the Act. Remedy against such orders has been provided in section 18(8) of the Act where the Supreme Appellate Court has been bestowed with all powers------------------------- of an appellate court under the Code. We have already reproduced section 423(c) of the Code of Criminal Procedure which empowers an appellate court to pass an order to alter or reverse any such order in an appeal. This includes an appeal from an order other than the order of acquittal or of conviction. To our calculated view an order passed under section 514 Cr.P.C, can be dealt with under this clause. We are fortified in our view by AIR 1943 Peshawar page 6 and 13 Cr.LJ.
31. It would be expedient and profitable to reproduce the relevant observations from the judgement reported in AIR 1943 Peshawar page 6 as follows:- Criminal P.C. (1898) Ss.423 and 515-Part of amount of security bond forfeited under S. 514-Appellate Court under S. 423 can increase amount of security forfeited.
In an appeal from an order under S. 514 forfeiting part of the amount of the security bond, the appellate Court under S. 423 has power to alter or reverse the order. The word "alter" in S. 423 does not imply the power only to reduce the amount of security forfeited. The appellate Court raise the amount of the security forfeited".
Thus the appellate court exercising powers under Chapter XXXI of the Cr.P.C, is empowered to pass orders revising the order made under section 514 Cr.P.C.
26. After the aforementioned detailed discussion we have come to the conclusion that all such powers are vested in the Supreme Appellate Court but as no right of appeal has been expressly provided in law, therefore, it is to be seen whether such remedy was an adequate alternate remedy within the meaning of Article 199 of Constitution of Islamic Republic of Pakistan.
27. In fact these powers are implied and not express, therefore, we find much force and substance in the argument of Mr. Samadani that an appeal initially filed had been withdrawn by the petitioner under bonafide impression that since no right of appeal was expressly provided to surety, therefore, appeal was not competent under section 13 of the Act.
28. We have come to the conclusion that no constitutional petition should ordinarily and generally be entertained in the wake of availability of an adequate alternate remedy but we are also of the view that such alternate adequate remedy must be expressly provided in law or the statute. In the eventuality of implied powers if the petitioner bonafide approaches the High Court he shall not be nonsuited merely because by interpreting different sections of a statute it could be inferred that a right of appeal was available. Moreso when Cr.P.C, does not provide for an appeal against an order of forfeiture to the High Court. It is only when the High Court sits in appeal and exercise its powers under section 423 Cr.P.C, that it can exercise such powers. We therefore conclude that if right of appeal is not expressly provided in the statute and requires interpretation whether such right exists or does not exist then the party approaching the High Court in its constitutional jurisdiction shall not be deprived of filing a constitutional petition on the sole ground that alternate remedy was available and could be inferred. In other words such a party may not be non-suited on the ground that impliedly a right of appeal was available. While disposing of the preliminary objection we therefore, hold that the constitutional petition is maintainable in view of the aforementioned proposition of law.
29. We now attend to the remaining questions as regards merits of the case. It is worth to mention in the first instance that petitioner stood surety of accused Sakhi Dost Jan in the Court of Sessions Judge, Quetta. However, the petitioner's counsel has not filed the copy of the bond, therefore, it is presumed that the petitioner undertook to produce the accused as and when required by any court in connection with the trial of the case. This position has not been otherwise controverted by the petitioner's counsel.
30. The petitioner under-took to produce accused and for default to pay the 'security amount'. The case of the accused was withdrawn by the Federal Government from the Court of Sessions Judge Quetta and referred to Special Judge Speedy Trials Special Judge passed an order on 8.6.1992 as under:- "Register the case.
Issue non bailable warrants for the arrest of accused Haji Sakhi Dost Jan son of Haji Qadir Bakhsh ................ Notices to also issued to the sureties of accused with directions to produce the accused on the next date of hearing" "
The case was fixed for framing of charge and recording of evidence on 15.6.1992.
31. When the case came up for hearing before the learned Judge on 15.6.1992 it was noted by the Court that accused Sakhi Dost Jan had not been served. However, his surety Abdul Ghani was served and was not present. In the circumstances the surety bonds were forfeited and notice was issued as to why surety amount be not recovered from him.
32. Another important fact to be taken note of was that the learned Judge observed that inadvertantly non-bailable warrants for arrest of accused Sakhi Dost Jan were ordered to be issued on 8.6.1992. Since he was on bail, therefore, summons were issued and his second surety Haji Wali Muhammad was also issued a notice for his production on the next date of hearing.
Matter was fixed for 17.6.1992.
33. On 17.6.1992 the accused alongwith his two sureties attended the court by making his appearance. On the said date petitioner Abdul Ghani submitted his reply to show cause notice, contending that he was served only on 14.6.1992 and contacted accused who was at .Delbandin about 350 K.M. Away from Quetta. He contacted him to which the accused replied that it was not possible for him to reach Quetta next day. The surety then went to the relatives of the accused at Quetta to inform accused to attend the court, therefore, he could not attend the court although he had been present in the court premises in the morning the. He, therefore, submitted that the notice be withdrawn.
34. We have already mentioned that learned Advocate General Baluchistan argued that only one default on part of the surety is sufficient to forfeit the bond and to make an order for recovery of the security amount. But Mr. Samadani challenged this legal proposition. According to him section 499 Cr.P.C, envisages that firstly notice is to be issued to the accused to attend and on his failure to attend on a date fixed for hearing, the court shall direct the surety to produce the accused. The jurisdiction of ordering forfeiture would arise only when the accused is served but failed to attend.
In the instant case the accused admittedly had not been served for 15.6.1992 and when he was served for 17.6.1992 he appeared before the Court. Thus order of forfeiture of the bond was without jurisdiction. While further augmenting the argument, the learned counsel stated that sometimes jurisdiction can be exercised in relation to existence of some facts which he termed as 'jurisdiction could only be exercised on the existence of such facts and not otherwise. But if a court exercises jurisdiction prior to existence of such a fact then the action would be without jurisdiction. Referring to the provisions of section 499 Cr.P.C, it was argued that when a case is fixed for hearing, the accused, if on bail, is issued notice/summon for his attendance on the said date. It is only when the accused fails to appear then notice is generally given to the surety for his attendance. In the instant case it is borne from the order that accused was not served for 15.6.1992. Therefore notice to the surety for procuring attendance of the accused could be issued on 15.6.1992 and not before it.
35. In order to appreciate the aforementioned arguments it would be necessary to reproduce section 499 Cr. P.C. Which reads:- "499. Bond of accused and sureties:- (1) Before any person is released on bail or released on his own bond, a bond for such sum of money as the police-officer or Court, as the case may be, thinks sufficient shall be executed by such person, and, when he is released on bail, by one or more sufficient sureties conditioned that such person shall attend at the the and place mentioned in the bond, and shall continue so to attend until otherwise directed by the police-officer or Court, as the case may be.
(2) If the case so requires, the bond shall also bind the person released on bail to appear when called upon at the High Court, Court of Session or other Court to answer the charge".
36. From plain reading of aforementioned section it becomes clear that it is the duty of the surety to ensure attendance of the accused at the the and place mentioned in the bond. The word used are that the release on bail is conditioned that such person shall attend at the date and place......... ".
By "such person" is meant the accused and not the surety. Thus the surety holds himself liable that accused shall attend on each and every hearing. Failure of the accused to so attend would result in forfeiture of the bond and it would make the surety liable to pay the "security amount", in case he failed to produce the accused before the Court.
37. But obviously the accused can attend only when he is aware of the date and the; in other words when he receives notice from the court to attend. If the accused despite service failed to make appearance or with malafides he absconded or abstained to receive notice or despite notice failed to attend after jumping the bail, then it is the liability of the surety to procure his attendance failing which the bond shall be forfeited and notice issued to him for showing cause why not security amount be recovered from him.
38. However, there is no bar any where in the Criminal Procedure Code forbidding the court to simultaneously issue notice to the surety to procure attendance of the accused as well as to the accused to attend the court on such the and place as mentioned in the order. Therefore, if a court issues notice to the surety as well as to the accused for appearance of the accused on a specified date this would not be an order without jurisdiction. The question of jurisdictional fact as argued by Mr. Samadani has not impressed us much for the reason that at the the of becoming surety, the surety takes upon himself to produce the accused and there is no mention that he would do so only after when the accused failed to attend. Therefore, the word used in section 499 Cr.P.C, that such person (accused) shall attend is hardly of any relevance as far as issuing notice to the surety for procuring attendance of the accused is concerned.
39. However, we have to look the question from another angle regarding forfeiture of bond and discretion and power of the court to order forfeiture of the bond. It is the duty of the court to provide reasonable and sufficient the both to the surety and the accused to attend the court. Obviously if no sufficient the is given the surety bond shall not be liable forfeiture. It has been the consistent view of the superior courts of the country that sufficient the should be allowed to the surety to produce the accused. In a case when surety sought 15 days the to procure attendance of the accused but the request was turned down, it was held that forfeiture of bond prima-facie is in violation of provisions of section 514 (1) Cr.P.C. (1983 P.Cr.L.J. 106).
40. Likewise if non-appearance is for the reason beyond control of the surety or the accused bond can not be forfeited. In case the accused or surety in reply to the notice took the plea that non- attendance was on account of the reasons of impracticability, it was held that forfeiture of bond without conducting an inquiry to the said effect was illegal (1976 P.Cr.L.J. 474).
41. Seen in the light of the above observations it may be observed that the notice was issued both to the surety and to the accused on 8.6.1992. According to the surety he received the notice on 14.6.1992. He made all efforts to contact the accused who at the relevant the was at Dalbandin and he could only contact him. Through his relatives on the day fixed for hearing i.e. 15.6.1992.
Admittedly Dalbandin is at a distance of 350 Kilo Meters from Quetta. According to the surety it was practically not possible to procure attendance of the accused as he could not reach within court the from such a distance.
42. While explaining his own absence on 15.6.1992, the surety explained that he came to the court premises to see whether accused had reached or not. When he did not find the accused he again went to his relatives who contacted the accused on telephone but the accused informed that he would attend on the next date of hearing as it was practicably impossible for him to attend on the said date i. e. 15.6.1992. Matter was adjourned to 17.6.1992 i.e. After two days. Both the accused and the surety attended the court. In such circumstances it can not be said that surety failed to perform his liability of procuring attendance of the accused. It may further be observed that the object of section 514 Cr.P.C, appears to be to procure attendance of the accused by surety on the date required by the court. But the courts have always considered sufficient cause and reasonable the as cogent ground in this respect. In case the surety failed to precure attendance of the accused only then he shall be liable to penalty. But in the instant case and keeping in view the circumstances it was not practicably possible for the surety to procure attendance of the accused within one day who at the relevant the was at a distance of about 350 K. Ms from the place (Quetta) where he was required to attend. Besides admittedly the accused himself had not been served to attend. The order of forfeiture, therefore, in the circumstances was patently illegal; Particularly so when the accused was brought to the court on 17.6.1992.
43. For all such reasons we have come to the conclusion that the orders dated 15.6.1992 and 22.6.1992 in respect of the forfeiture of the surety bond of petitioner and direction to deposit the security amount are illegal and carry no legal effect. The petition is accepted and orders dated 15.6.1992 and 22.6.1992 is set aside. There shall be no orders as to costs.