1. ' The brief facts leading to this Criminal Revision are that one Agha Ghulam Haider s/o late Muhammad Hassan had stood surety in the sum of Rs,10,000 for accused Muhammad Ishaque s/o Muhammad Qasim in F.I.R. No,399 of 1980 in this Court in Criminal Bail Application No,295 of 1982 and had furnished security documents of his property bearing plot No,B-57, measuring 200 Sq. Yds situated at Sadat Colony, Shah Faisal Colony, Karachi and had deposited its title documents before the Nazir of this Court vide Bond No,9741 dated 6-5-1982. The said accused during the pendency of the case has failed to make his appearance before the VIth Assistant Sessions Judge, Karachi-East on 29-11-1990, where the trial was pending. Accordingly N.B. Ws. Were ordered to be issued against the accused and notice was also issued to the surety so also his bail bond was forfeited. The above said accused remained absent on 1-1-1991 also, and N.B.Ws. Were repeated against him and the notice was also repeated to the surety. On 30-1-1991, notice was again ordered to be issued to the surety but subsequently, on the same date, the above named accused was produced by the police in custody. Thereafter, an application was moved by the surety Agha Ghulam Haider on 25- 3-1991, under section 561-A, Cr.P.C. Which was presented on 1-4-1991, in this Court for return of surety documents, filed in Criminal Bail Application No,295 of 1982, since the said application was misconceived and the case was still pending and there was an order of forfeiture of bail bond, the said application was dismissed on 3-6-1991 by this Court. The above named accused remained in jail from 30-1-1991, till the decision of his case i,e, 5-8-1991 when the trial Court (Vth Assistant Sessions Judge, Karachi East) acquitted the accused.
2. ' It will be pertinent, to mention that the accused has remained absent on two dates of hearing viz. 29-11-1990 and 1-1-1991 and he was produced in custody on 30-1-1991, during this period when the case proceeded against the accused, no action was taken by the trial Court against the surety. As such no fmal order under section 514, Cr.P.C. Was passed making the surety liable to pay the surety amount. Thereafter, the surety Agha Ghulam Haider died on 25-11-1992, and the petitioner Muhammad Ismail in ,view of the facts that the late Agha Ghulam Haider had stood surety for the accused only on compassionate ground, moved an application before the trial Court on 7-5-1994, on which application, learned trial Court passed the following order:--- "Heard Advocate for applicant. Since the surety has been accepted by Honourable High Court and the title documents are also lying at the Honourable High Court. The applicant to move Honourable Court for return of surety documents and Honourable High Court has only jurisdiction to pass proper order of amount of forfeiture of surety to be deposited as surety was accepted by Honourable High Court where surety is accepted by Honourable High Court. The trial Court has to inform Honourable High Court of absence of accused and the action according to law has to be taken by the Honourable High Court as bail granted by Honourable High Court. The application is disposed of accordingly."
3. ' The relevant portion of section 514, Cr.P.C. Reads as under:- "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 the attachment and sale of the movable property belonging to such person or his estate if he be dead."
4. ' This revision application was filed by Muhammad Ismail s/o late Agha Ghulam Haider with a prayer that: "That this Honourable Court may be pleased to direct the learned trial Court to pass an order on the application dated 7-5-1994 made by the petitioner for excusing him from paying any penalty in consequence of forfeiture of bail bond and to discharge the bond of surety or be pleased to pass any other or further order for securing the ends of justice undo- the circumstances of the case."
5. Since the bail was granted by this Court and the surety was furnished before the Nazir of this Court and the documents were also lying in the office of Nazir of this Court. The trial Court was under obligation to refer the matter to this Court for taking appropriate action in respect of forfeiture of the surety but instead of that the lower Court rejected the application and passed the order of forfeiture of the bond concealing the bail. To regularize the order of the lower Court, this Court on 4- 9-1984, directed the lower Court to consider the application afresh and after considering the same pass a fresh order under section 514, Cr.P.C. And decide the matter according to law, with a view, that the good sense will prevail over the lower Court to reconsider its order of cancelling the bail and forfeiture of the surety bond which was granted and accepted by this Court, but it seems that the trial Court without applying its mind and without going through the order of this Court has passed the order dated 19-9-1994, incorporating its previous order dated 13-6-1994. It seems that the lower Court has not even applied its mind and without going through the order cjf this Court has deliberately and intentionally passed the same order which definitely comes within the purview of the contempt of this Court. However, I feel that the conduct of the lower Court is inadvertent and not a deliberate one, the same is excused. However, the trial Court Judge is warned to be conscious in future.
6. ' I have heard the counsel for the petitioner and Mr. Ameer Hani, AA.-G., also perused the record.
7. The learned counsel for the petitioner, has contended that in view of the previous order of this Court, the trial Court ought to have recalled its previous order directing the cancellation of bail bond and forfeiture of surety and should have made a reference to this Court. It appears, from the stereotype orders of the lower Court, that act of the lower Court is inadvertent, and not a deliberate one.
8. Accordingly, I set aside orders of the lower Court dated 29-11-1990 and 1-1-1991 and allow the petition as prayed as the surety Agha Ghulam Haider is since dead, his heir Muhammad Ismail to collect the documents.