1. The present Revision Application under section 435/439 of the Code of Criminal Procedure has been filed by the petitioner Syed Yakub Shah to challenge an order of Honorary Special Magistrate- II, Quetta dated 12-1-74 whereby the bond entered into by the petitioner for production of one Muhammad Shafi in the Court was forfeited and the applicant was called upon to pay the amount of the bond within 20 days failing which action under section 514 (2) of the said Code was to be taken against him. It has been stated by Mr. Khalid Malik, Advocate that an order of attachment had also been issued by the Magistrate on 10-4-74.
2. The brief facts are that one Muhammad Shafi was being prosecuted under rule 193 of the Defence of Pakistan Rules and the applicant had become his surety in the sum of Rs. 10,000. The accused committed default and a perusal of the record indicates that the default was made on more than one hearings ; so that on 12-1-74 the Magistrate passed an order of forfeiture of the bond and simultaneously directed the surety-applicant to pay the amount within 20 days of the order failing which action under subsection (2) of section 514 of the Code was to be taken against him.
3. Mr. Khalid Malik, the learned counsel for the petitioner has raised only a technical point before me.
4. His only contention is to that on proof that the bond has been forfeited, the Magistrate has to issue a notice stating that either the surety should pay the amount of the bond or he should appear in Court and show cause against the forfeiture. In other words the contention is that the fact of calling upon the surety to pay the bond is not in full compliance of the provisions of subsection (1) of section 514 of the Code. He has elaborated the arguments by referring to the words used in subsections (1) and (2) of section 514 of the Code.
5. On the other hand the learned Advocate-General has contended that the words "to pay the penalty thereof, or to show cause why it should not be paid", have to be construed alternatively so that the Magistrate could adopt any of two alternatives.
6. On a perusal of subsection (I) of section 514 of the Code the position is clear that the Court has first to satisfy itself in regard to forfeiture of the bond by reason of non-compliance with its terms. On such satisfaction having been arrived at by the Court, grounds for such satisfaction have to be recorded and then the Court has to call upon the person bound by such bond to pay the penalty or to show cause against payment. The learned Advocate-General's contention is that the clauses relating to payment of penalty or showing of cause appearing in subsection (1) of section 514 of the Code have to be read disjunctively and in the alternative. On the other hand subsection (2) of section 514 provides that steps for recovery can only be taken when sufficient cause is not shown and the penalty is not paid.
7. The learned Advocate-General has particularly referred to the comma appearing after the word "thereof" under section 514 (1) and attempted to build an argument that by use of comma the law- maker intended to create alternates specially when the word "or" has also been used after the comma.
8. On a careful consideration of the two subsections, I am afraid I am unable to agree with the learned Advocate-General. One of the reasons that has weighed with me is that before ordering attachment a Court is to be satisfied that there was no "sufficient cause" for the default and such satisfaction can only be arrived at after hearing the surety. No doubt an order of forfeiture of bond can be passed by the mere reason of absence of an accused but in order to saddle the surety with liability a Court has to further assure itself that the default was indictable. A default might occur for a variety of reasons like death, arrest in other case, disability from reaching the Court, etc. Although each default is liable to result in forfeiture of the bond, the attachment has to follow a further satisfaction that the default was intentional or procured by a desire of non-compliance with the bond. The question then arises is as to how has the Court to arrive at such satisfaction without enquiry which in the nature of things has to succeed a show-cause notice.
9. Learned Advocate-General's argument based on the use of comma and the word "or" in subsection (1) of section 514 of the Code has also not persuaded me to agree with him. In ordinary usage "and" is used in a conjunctive sense and "or" in a disjunctive sense but very often the intention of the Legislature is best deciphered by reading the two words, one for the other. The position can best be illustrated by reference to Maxwell on the' Interpretation of Statutes (Tripathi), 1969 Edition at page 233 where the learned author has referred to the Bankrupts Act, 1603 and interpreted the words "to the intent, or where his creditors shall or may be defeated or delayed".
10. Moreover, section 514 of the Code being a penal provision, has to be construed liberally so as to avoid unnecessary hardship.
11. The learned Advocate-General has however submitted that if and when the surety is called upon to pay the amount of the bond, he could come up to the Court and show cause although the Court might not have specifically asked him to show cause. To that extent I would refer to a Division Bench Judgment in the case of Ghulam Qadir v. The State (PLD 1970 Posh. 99) The learned Judge in that case examined a wealth of case law and analysed various provisions of section 514 of the Code. The learned Judge in the matter of forfeiture of bonds and notices expressed as follows;--- "After the Court has come to the conclusion that the bond has been forfeited, it has to give two alternatives to the executant of the bond. It has to give him notice either to pay the penalty or to show-cause why it should not be paid. It is only at the second stage that it is incumbent upon the Court to issue notice to the sureties to show cause why the amount should not be paid."
12. On reading of the above passage it would appear that the Division Bench was clearly of the view that before reaching a conclusion regarding forfeiture of bond and recovery, it bas to give two alternatives to the surety. These are the alternatives that are referred to in subsection (1) of section
514. Again in the case of Willayat Hussain v. The State (PLD 1967 Kar. 826) the learned Single Judge of the Karachi Bench of High Court of West Pakistan took the view that even after issue of notice to the surety the Court must be satisfied that cause shown was not sufficient and such satisfaction is to be arrived at before the surety can be asked to make payment. In the case of A. L. Zahir Hussain v. The State (PLD 1962 Dacca 447) the learned Single Judge of that High Court interpreted the words "If sufficient cause is not shown and the penalty is not paid" occurring in subsection (2) of section 514 of the Code as implying that without asking the surety to show cause why the penalty should not be paid, the surety could not be called upon to pay the amount forfeited.
13. As stated above, on a conjoint reading of subsections (1) and (2) of section 514 of the Code it appears to me that while subsection (1) contemplates a notice in alternate, subsection (2) contemplates the existence of both circumstances enumerated in the notice. To put it in simple words sub-section (1) contemplates that the notice should call upon the surety either to pay the amount or show cause and subsection (2) of the same section contemplates that attachment shall follow when no sufficient cause is shown nor the amount has been paid. This in my view is the only mode of interpretation of the two subsections so that the words used in subsection (1), though appearing to be disjunctive, portray their full effect. Moreover such interpretations will also be in consonance with the golden rule disapproving jeopardy without a notice.
14. I must also mention one other argument raised by the learned Advocate.
15. General in regard to bonds and forfeiture in cases where bonds are forappearance. He contends that in such cases the Court can without calling upon the surety order attachment because the fact of absence of accused being established to the satisfaction of the Court, no necessity arises for giving an opportunity to the surety to show cause against the forfeiture. The argument loses sight of a basic principle that mere absence would not result for a variety of reasons and it is not every default that must entail penalty and indeed default from several causes justify condonation.
16. In such cases would it not be fair that the surety may in the first instance be given a chance to show cause against recovery.
17. At the time of the admission of this Revision Application I had granted interim stay on the petitioner furnishing security to the extent of Rs. 10,000. Such bond shall continue effective until the disposal of this case by the Magistrate.