' The petitioners namely Muhammad Khan son of Shah Behram and Daraz Khan son of Saeed Ahmad, residents of village Tirri Khel, Tajori, Tehsil and District Lakki Marwat through instant criminal revision under sections 439/435 read with section 561-A, Cr.P.C. Have challenged the orders of learned Sessions Judge, Lakki Marwat dated 30-6-2003, 2-9-2003, 18-10-2003 and 21-11-2003 whereby the bail bonds of the petitioners were forfeited and they were held liable to pay the entire forfeited amount:
2. Shortly narrated the facts are that accused Ali Muhammad alias Ali Gul son of Shah Behram, resident of Tirri Khel, Tajori, Tehsil and District Lakki Marwat was arrested in case F.I.R. No.196 dated 14-9-2001 registered at Police Station, Tajori for Offences under section 302/34, P.P.C. The petitioners furnished surety bonds in the sum of Rs.2,00,000 each and consequently, the accused was released on bail. During the trial, the accused A absconded and failed to appear before the trial Court. The petitioners were issued notices under section 514, Cr.P.C. To show cause why the amount forfeited should not be paid by them. It appears that without hearing the petitioners and giving them an opportunity to file reply, the learned Sessions Judge, Lakki Marwat vide order dated 30-6- 2003 held both the petitioners liable to pay the entire forfeited amount.
3. Mr. Gauhar Zaman Khan Kundi, Advocate for the petitioners inter alia, contended that:--
(i) petitioner No.1 happens to be the brother of accused Ali Muhammad, whereas petitioner No.2 is their co-villager and petitioner No.1 has stood surety because of his close relationship with the accused and not because of any financial or economical consideration and similarly petitioner No.2, who happens to be the co-villager of the accused had stood as surety out of sheer magnanimity and on humanitarian grounds;
(ii) that petitioners have been working as labourers away from their home District Lakki Marwat in order to support and sustain their families and they were not aware of either the orders regarding forfeiture of bail bonds or proceedings initiated against them under section 514, Cr.P.C.;
(iii) that the proceedings conducted, steps/actions taken and orders recorded by the learned Sessions Judge in the absence of petitioners-sureties, without effeciing proper service upon them in accordance with law Procedure and without observing the Indispensable legal requirements, are not only against the spirit of law but besides being without jurisdiction and lawful authority, the same are nothing but nullity; and
(iv) that even fixation/determination of penalty amount by the learned Sessions Judge is illegal and beyond his authority and moreover the amount of penalty fixed by the Court below is extremely harsh, arbitrary and excessive in circumstances of the case.
4. Mr. Salimullah Khan Ranazai, Advocate appearing on behalf of the State could not controvert the objection of learned counsel for the petitioners and conceded that there is no evidence whatsoever on record to show that in fact the petitioners were served with a show cause notice and there was no ample justification with the trial Court to have forfeited the surety bond without service of show-cause notice.
5. It is not denied that sureties are to be called upon first to show cause why amount forfeited should not be paid by them when on appearance the sureties may forward sufficient reasons against the forfeiture of bonds to the satisfaction of the Court in which case the Court may recall his order of forfeiture of the bonds and in that respect the Court may also make a summary inquiry to accept or reject the explanation against the forfeiture of the bond furnished by the sureties.
Reference in this context can be made to the prescribed form of notice to surety on breach of bond in Form No.XLV of the 5th Schedule to the Code of Criminal Procedure for which the Court intimates the surety that the accused has failed to appear before the Court and by reason of his default the surety has forfeited the amount of the bond and accordingly he was required to pay the said penalty or show cause within a specified period as to why payment of the said amount should not be enforced against him. In the absence of such a prescribed notice, there can be no final order of the forfeiture of the bonds to be followed by the recovery of the penalty as made in the impugned order. Syed Zulfigar Ali Shah and others v. State PLD 1989 Peshawar 6 and Muhammad Ishfague v.
The State 1984 PCr.LJ 2892 Karachi.
6. The order dated 30-6-2003 of the learned Sessions Judge clearly indicates that the petitioners were neither in attendance nor they had submitted reply to the notice. According to the golden principle of law, no-one should be condemned unheard. Since the petitioners were not afforded an opportunity of being heard, therefore, the impugned orders are not sustainable in the eye of law and cannot be allowed to remain intact.
7. For the above reasons, I accept instant revision petition, set aside the impugned orders and remand the case back to learned Sessions Judge, Lakki for decision afresh after affording an opportunity to the petitioners to submit their reply. The petitioners are directed to appear before learned Sessions Judge, Lakki Marwat on 30-9-2004. accordingly.