1. In this criminal revision, the applicant has impugned the order of 22nd August, 1994 of learned 1st Additional Sessions Judge, Larkana whereby surety A bond were forfeited and the applicant was directed to pay the entire amount of surety bond i,e, Rs,50,000 within three days.
2. ' I have heard Mr. Muhammad Afzal Soomro and Mr. Ahmed Ali Sheikh, Advocates and have also perused case file. Applicant has filed certified copies of the case diaries from 8th August 1989 till 4th October, 1994 of the Trial Court which reveals that on 2nd May, 1990 applicant stood surety for accused Iqbal alias Ikoo son of Ghulam Shabir and executed surety bond in the sum of Rs,50,000.
3. Accordingly, accused Iqbal was released and thereafter he attended trial Court regularly till 18-10- 1990, when he was called absent but he again appeared on 5-12-1990 and filed application for condemnation of his absence which was granted by the trial Court on 23-12-1990 and thereafter again accused Iqbal failed to appear before the trial Court. On 20-9-1990 process-server namely H.C. Aziz Ullah who is Constable in Police Station Naudero was examined who deposed that accused Iqbal alias Ikoo is confined in Central Jail, Karachi. The trial Court, thereafter time and again issued production orders to the Superintendent, Central Prison, Karachi as well as letters to the I.-G. Prisons, Sindh but neither the accused was produced by the Central Jail Authorities, Karachi nor the reply of I.-G. Prisons was received by the trial Court. This resulted in passing of the impugned order.
4. ' Mr. Muhammad Afzal Soomro has vehemently urged that the learned trial Court before passing order for forfeiture of surety bond should have held inquiry to ascertain the fact whether accused is confined in Central Prison? And whether in the circumstances of the case, applicant/surety was in a position to produce the accused. Mr. Ahmad Ali Shaikh learned counsel for the State has not contested this revision but has stated that in view of the law laid down in the case of Muhammad Khan v. The State 1986 PCr.LJ 2028, the learned trial Court should have adopted lenient view for fixing the amount of forfeiture.
5. Mr. Soomro has also filed a copy of the order of Federal Shariat Court passed in Mirgh v. The State in Criminal Revision No,24/K of 1993 which also relates to the forfeiture of the surety bond in another case of accused Iqbal. In this case the learned Chief Justice of Federal Shariat Court Mr. Hazar Khan Khoso, J. (as he then was) held that in view of the fact that accused Iqbal alias Ikoo is in custody at Central Prison, Karathi and is not within the means of petitioner to produce him before the trial Court, as such, no responsibility can be fixed on the petitioner. In such circumstances, the revision filed against the order of IVth Additional Sessions Judge, Larkana, imposing penalty of Rs,25,000 on the surety was set aside. Mr. Soomro has also relied upon the case of State v. Abdul Sattar 1976 PCr.LJ 474 wherein it was held by Mr. Zaka Ullah Lodhi, J. (as he then was) that since no inquiry was made by the trial Court to ascertain whether the absence of accused was due to circumstances beyond control of surety or whether the accused has absconded to avoid appearance before the Court, therefore, imposition of penalty was declared as illegal. In the instant case also, there is no such finding by the learned trial Court. It is apparent from the case diaries of the trial Court that time and again notices and production orders were issued but no all occasions such notices and orders were return unserved. For further reference see Muhammad Ajmal v. The State 1968 PCr.LJ 782.
6. ' In another case reported as Khan Bahadur v. The State 1991 PCr.LJ 1835 this Court reduced the forfeiture amount to one-fifth from Rs,30,000 to Rs,6,000 on the grounds, inter alia, that no enquiry was conducted by the learned Additional Sessions Judge before ordering forfeiture of surety bond.
7. This Court in the case of Momen Khan v. The State 1990 PCr.LJ 951 clearly held that the opportunity contemplated by subsection (1) 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 ... " Late Mr. Qaiser Ahmed Hamidi, J. Has summarised the requirement of section 514, Cr.P.C. In the case of Momen Khan as follows:-- 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;
(ii) 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 surety.
8. ' In view of the facts and law discussed hereinabove, the impugned order passed by the 1st Additional Sessions Judge is hereby set aside. However, I will remand this case to the trial Court to ascertain whether accused Iqbal Ikoo is confined at Central Prison in Karachi? And after coming to any definite conclusion on such finding then to pass appropriate order. The learned Additional Sessions Judge, Larkana, should keep in view the law laid down by this Court in the case of Khan Bahadur v. The State, State v. Abdul Sattar and in the case of Momen Khan v. The State while conducting enquiry. With these observations, the abovesaid revision application is allowed and the impugned order is set aside.