' The petitioner has challenged the impugned order dated 6-2-1995 passed by the learned Additional Sessions Judge, Daska, District Sialkot whereby he forfeited the bail bond of the petitioner in bail petition in case F.I.R. No,164/94 under section 324/337-F(v), P.P.C. Police Station Bagowala and directed the petitioner to deposit Rs,10,000 as penalty.
2. The brief facts of the case are that on 8-11-1994 Afzal Ahmad accused for whom the petitioner stood surety was admitted to ad interim bail before arrest till 22-11-1994 subject to his furnishing of security bond in the sum of Rs,20,000 with one surety in the like amount to the satisfaction of the Court. On 22-11-1994 the accused absented himself from the Court as he was resident of village Bagowal which is situated at a distance of 25 miles from the Court of Session at Daska although on the same day the accused appeared and applied for bail before arrest in the same Court yet the said Court cancelled bail due to non-prosecution and initiated proceedings under section 514, Cr.P.C. Against the petitioner. The petitioner requested for remission of the penalty imposed by the Court of the learned Additional Sessions Judge, Daska through an application dated 7-2-1995 which was rejected vide order dated 6-3-1995. The penalty of Rs,10,000 already imposed was maintained by the same Court. The petitioner has challenged the impugned order by way of instant criminal revision.
3. The submissions of the petitioner are that the accused's nonappearance was due to non- availability of transport and the accused appeared on the same day before the Court and applied for bail before arrest. Since the accused is not related to the petitioner who stood surety for the accused as a benefactor and he was also not a professional surety. The main grievance of the petitioner is that the impugned order is not sustainable in law as no opportunity of show cause was given to the petitioner to explain absence of the accused. He placed reliance on Major (Rtd.) Abdur Rehman Khan v. The State (PLD 1994 Pesh. 242) and Abdul Ghani v. Province of Balochistan (1994 PCr.LJ 2242).
4. Learned State Counsel has opposed the instant revision petition. He has submitted that the notice upon the surety was served for 11-12-1994 and non-bailable warrants were also issued against the said person.
5. I have heard the learned State Counsel and perused the relevant record on the file. Learned State Counsel has admitted that the notices were not served upon the accused and even non- bailable warrants which were handed over to Muhammad Boota, Constable were also not served and a complaint in this behalf against the said constable was sent to the DSP/SDPO, Daska. The surety was served and he submitted his reply on 5-2-1995. He stated that the absence of the accused was due to non-availability of the transport as on 5-2-1995 there was a nationwide strike on Kashmir issue and the case was adjourned to next day. Therefore, a penalty of Rs,10,000 was imposed on Inayat Ullah surety. So far as the provisions of section 514, Cr.P.C. Are concerned, it provides as follows:-- "(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......"
Under section 499 of Cr.P.C. The surety bond ensures the appearance of the accused to attend at the time and place mentioned in the bond and shall continue so to attend the Court otherwise directed by Police or a Court as the case may be. If the accused fails to attend at the time and place mentioned in the bond the provisions of section 514, Cr.P.C. Shall apply. In respect of these provisions the intention of Legislature is very clear. When the bond is for appearance of an accused before a Court and he fails to attend to that Court the Court will serve notice upon the accused to attend to that Court and he fails to do so after the service of that notice as such, there and then the Court shall issue show-cause notice to the surety why his surety bond should not be forfeited for non-attendance or non-appearance of the accused and after reasonable opportunity of being heard and explaining the causes for nonappearance of the accused the Court can penalise the surety by forfeiture of bond even after the forfeiture the Court shall record the grounds of such proof and may call upon any such person to pay the penalty or otherwise show cause why it should not be paid. Every Court is guided by the provisions of law and it is for a Court to use its utmost skill and prudence to make a judicial order within the ambit of the provisions of law. Any order outside or contravening such provisions of law cannot be termed as a proper judicial order.
The provisions of section 514, Cr.P.C. Are clear as they provide opportunity to the surety and accused to attend to Court and explain the reasons for their nonattendance to the Court concerned.
6. So far as petitioner's case is concerned although at the time of call the accused absented himself but he appeared before the Court on the same day and applied for pre-arrest bail. The petitioner was to be given ample opportunity to show cause, and explain the reasons for forfeiture of petitioner's bond. The learned Court below has not adopted this procedure as envisaged in the provisions of section 514, Cr.P.C. The impugned order itself reflects that service of notice sent to the accused and even non-bailable warrants issued remained unserved upon the accused. The learned Court acted hastily by forfeiting the surety bond and penalising him any such forfeiture of bond is not warranted by law. The learned State Counsel submits that the accused is behind the bars.
7. In view of the aforesaid observations, I accept this petition and set aside the impugned order dated 6-2-1995 passed by the learned Additional Sessions Judge, Daska.