1. ' Applicant Adho stood surety for accused Ahmed in Sessions Cases Nos.216 and 240 of 1989, Crime No,60 of 1989, Police Station Dadu under sections 307, 504 and 34 pending in the Court of Sessions Judge, Dadu, and on his executing a bond the accused was released.
2. ' On 22-9-1996 the accused did not attend the Court, therefore, notice was ordered to be issued to the applicant/surety, and non-bailable warrant of arrest against the accused. On 15-10-1996, the accused did not attend the Court as before, but the applicant appeared on the first call and kept away at the time of second call, it was ordered that writ of attachment be issued against him. On 3-11-1996 the surety appeared in the Court at the time of first call, but on second call he remained absent, therefore, penalty of Rs,50,000 being the full amount of surety bond was imposed on him by order, dated 3-11-1996. Subsequently, on 6-1-1997 the 'surety appeared in Court and produced the accused and since bail of the accused was already cancelled he was taken into custody and remanded to District Jail, Dadu, but regarding the penalty, in view of the order already passed by learned predecessor of the Presiding Officer, the application of surety was rejected and he was directed to pay Rs,50,000. An application was filed for review before the learned Sessions Judge, Dadu which was dismissed by order, dated 17-3-1997 on the ground that there was no provision of review against the order passed by the Sessions Court. The applicant/surety has called in question the orders, dated 15-10-1996 and 17-3-1997 by way of this revision.
3. ' I have gone through the material on record with the help of Mr. Anwar Ansari learned State Counsel. In the first instance the learned State Counsel concedes that the learned Sessions Judge was legally justified in holding that there was no provision of review against the order passed by the Sessions Court. As such the order, dated 17-3-1997 could not be interfered with, and is accordingly upheld to that extent. However, the order, dated 3-11-1996, has also been called in question. Perusal of this order, shows that the learned Sessions Court had eventually taken to actions at one and the same time. On 3-11-1996 when the surety appeared in response to the notice issued by the Court calling upon him to explain why the surety bond be not forfeited two actions were taken simultaneously, the bond was forfeited and also the penalty was imposed.
4. Obviously, as it is discerned from the aforesaid order, the bond had not been forfeited within the meaning of section 514, Cr.P.C., till that day and only notice was issued to the surety to satisfy the Court why the bond be not forfeited.
5. It is an essential requirement of section 514, Cr.P.C., that when it is proved to the satisfaction of the Court that the bond has been forfeited, the Court shall record, the grounds of such proof and may call upon the person bound by such bond, that is to say the surety in the instant case, to pay the penalty thereof or to show cause why it should not be paid. Strict compliance of this provision of law is to made by taking actions step by step and in the order enjoined in this section.
6. ' Essentially, a show-cause notice is to be issued to the person who executed the bond only after the forfeiture of the bond. In the case Rana Masood Ahmed v. The State PLD 1992 Kar. 213 relying on the authority Sawan and another v. The State PLD 1965 Kar. 516, the order imposing penalty on the surety was set aside looking to the abnormal procedure adopted in issuing notice to the surety and on the subsequent date forfeiting the bond and imposing the penalty simultaneously. In the instant case when the surety appeared in pursuance of the notice issued to him to explain why the bond be not forfeited, all actions were taken in one stroke, that is to say, the bond was forfeited and penalty was imposed on him, consequently, the requirement of issuing show-cause notice after forfeiture of bond and affording an opportunity to the surety to furnish explanation in order to show cause, was not complied with in real sense. On account of the patent illegality, pointed out above, the order of imposing penalty cannot be sustained.
7. ' Additionally, a ground has been taken in the revision petition, which is also supported by the diary sheet of the Court that on 6-1-1997 the surety appeared in Court and produced accused Ahmed .Who was taken into custody and remanded to District Jail, Dadu. No leniency was shown to the surety for his efforts in producing the accused before the Court, on the contrary order for attachment of the property already passed by the Court was reaffirmed.
8. It is quite surprising that the order of issuing writ of attachment, which power is to be exercised under subsection (2) of section 514, Cr.P.C. Was passed on 15-10-1996 much before forfeiting the bond and issuing show-cause notice under subsection (1) of section 514, Cr.P.C., which on the face of it is illegal.
9. ' In view of the above facts and circumstances the learned State counsel concedes that the applicant/surety deserves an opportunity to show cause why the penalty be not paid by him, and that writ of attachment could not be issued in advance.
10. In consequence of the foregoing discussion, the orders, dated 15-10-1996 and 3-11-1996 to the extent of issuing writ of attachment and imposing, the penalty of Rs,50,000 are hereby set aside.
11. The order, dated 3-11-1996 is deemed to be only an order of forfeiture of the bond, and while remanding the case to the learned trial Court is directed that proper show-cause notice be issued to the applicant/surety under section 514(1), Cr.P.C. And after affording reasonable opportunity to him, further orders be passed in accordance with law having regard to the efforts of the applicants/surety in producing the accused before the Court.
12. ' The revision is disposed of accordingly.