Cr.Rev.
A No. S- 52 of 2011 .
1.
For
Katcha Peshi.
2.
For
hearing of MA 1904/2011.
Date of hearing 14.6.2012.
Mr. Shamsuddin N. Kobhar for applicant/surety.
Mr. Zulfiqar Ali Jatoi DPG.
**********
NAIMATULLAH
PHULPOTO,J; This
Criminal Revision application is directed against the order dated 17.3.2011
passed by learned IInd Additional Sessions Judge, Sukkur whereby he imposed
fine of Rs. 100,000/- upon the applicant/surety in Criminal Case No. 291/2009
Re-State Vs. Abdul Hameed @ Hameed and another
bearing Crime No. 56/2009 registered at Police Station Dubar under section 324,
353, 186, 411, 34 PPC.
Brief facts leading to the
filing of above revision are that accused Pirano was granted bail in the sum of
Rs. 100,000/- (One lac) and PR bond in the like amount by the trial Court vide
order dated 5.9.2009 in the above mentioned case. The applicant stood surety
for accused Pirano, filed such affidavit dated 12.09.2009 surety was accepted,
such bond was executed and surety was directed to produce accused on each and
every date of hearing. Accused was remained absent on 21.4.2010 bail bond was
forfeited by the trial Court. Notice U/s 514 Cr.P.C was issued requiring the
surety to deposit the forfeited bond or show-cause as to why such amount may
not be recovered from him. The relevant portion of the order passed by learned
IInd Additional Sessions Judge, Sukkur dated 17.3.2011 is re-produced as under:
“After
the respondent voluntarily became the surety and executed such bond, he was
under obligation to make it sure that the accused was regularly appearing
before the Court. On absconsion of the said accused, the bond executed by the
respondent stood forfeited. The respondent has neither deposited the amount of
forfeited bond, nor showed cause why the aforesaid amount may not be enforced
from him. In such a situation, the respondent is liable to deposit whole amount
of his forfeited bond. In this context, I am forfeited in my view by the
Judgments of the Honourable Supreme Court in Zeeshan Kazmi v. The State PLD
1997 Supreme Court page 267), Muhammad Safeer v. Qaiser Khan and 2 others (PLD
200 SCMR 321) and Saeed Akhtar v. The State (2009 SCMR 834).
In view
of the forgoing reasons, the respondent is directed to deposit an amount of Rs.
100,000/- of his forfeited bond within (30) days, failing with necessary action
in accordance with law has to follow. The notice U/s 514 Cr.P.C to the
respondent stands disposed of”.
Mr. Shamsuddin N. Kobhar learned counsel for
the applicant/surety mainly argued that notice U/s 514 Cr.P.C was never served
upon the surety and procedure adopted by the learned trial Court while imposing
the fine is against the provisions of section 514 Cr.P.C.
Mr. Zulfiqar Ali Jatoi learned DPG argued
that accused remained absent in trial Court and notice U/s 514 Cr.P.C was
issued upon the surety and it was served, such report was called from the trial
Court and is available on the record. It has also been argued by learned DPG
that proper procedure as contained in section 514 Cr.P.C has been adopted in
this case.
In order to properly appreciate the arguments
of learned counsel for the parties section 514 Cr.P.C is re-produced as under:
514. Procedure of forfeiture bond. (1) 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.
(3) Such
warrant may be executed within the local limits of the jurisdiction of the
Court which issued it; and it shall authorize the attachment and sale of any
movable property belonging to such person without such limits, when endorsed by
the [District Officer (Revenue)] within the local limits of whose jurisdiction
such property is found.
(4) If
such penalty is not paid and cannot be recovered by such attachment and sale,
the person so bound shall be liable, by order of the Court which issued the
warrant, to imprisonment in the civil jail for a term which may extend to six
months.
(5) The
Court may at its discretion, remit any portion of the penalty mentioned and
enforce payment in part only.
(6) Where
a surety to a bond dies before the bond is forfeited, his estate shall be
discharged from all liability in respect of the bond.
(7) When
any person who has furnished security under section 107 or section 118…..is
convicted of an offence the commission of which constitutes a breach of the
conditions of this bond, or of a bond executed in lieu of his bond under
section 514-B, a certified copy of the judgment of the Court by which he was
convicted of such offence may be used as evidence in proceedings under this
section against his surety, or sureties, and, if such certified copy is so
used, the Court shall presume that such offence was committed by him unless the
contrary is proved. `
From the perusal of the order of
the trial Court dated 17.3.2011 it transpires that applicant stood surety for
accused Pirano on 12.09.2009 in the sum of Rs. 100,000/- and PR bond in the
like amount and accused was called absent on 21.4.2010 and bond executed by the
surety was forfeited and notice U/s 514 Cr.P.C was issued against surety. Contentions
of learned counsel for the applicant/surety that notice was never served upon
the surety. Report regarding service of notice U/s 514 Cr.P.C was called by
this Court from trial Court which reveals that trial Court had issued a notice U/s
514 Cr.P.C dated 9.3.2011 and same was served upon surety Abdul Wahid for the date 17.3.2011. It is very much clear
that trial Court has adopted the procedure as provided U/s 514 Cr.P.C. As
regards to contentions of learned defence counsel that entire surety amount has
been forfeited and no lenient view has been taken by the trial Court. On this
point, Honourable Supreme Court of
“It has
been held by this Court on various occasions that no lenient view should be
taken and entire amount of the bail bond should be recovered as an amount of
penalty. In this regard reference may be made to Zeeshan Kazmi v. The State PLD
1997 Sc 267, it was observed:--
“It has
now become common that the accused persons involved in heinous offences, if
succeed, in obtaining bail, jump the bail bonds. To check the above tendency
and to provide deterrent special provisions have been enacted and/or are being
enacted in the special statutes prescribing the minimum amount of bail bond
…..Keeping in view the above bleak scenario which has emerged, with the passage
of time on account of the lack of respect of the rule of law, and because of
the unprecedented continuous steep inflationary tendency resulting in the loss
of money value, the Courts should not show any undue leniency while forfeiting
bail bond amount. Their approach should be dynamic and progressive-oriented
with the desire to discourage the accused persons to jump bail bonds. There is
no legal requirement that full bail bond amount should not be forfeited, on the
contrary, once an accused person jumps bail bond, the entire surety amount
becomes liable to be forfeited in the absence of any mitigating
circumstances……”
For the foregoing reasons, we do not find any merit in this petition
which is dismissed and leave refused.
Once an accused person jumps bail bond, entire
surety amount becomes liable to be forfeited in the absence of any mitigating
circumstances. In this case surety has not brought any mitigating circumstances.
Approach of the trial Court appears to be dynamic and progressive-oriented with
the desire to discourage the accused persons to jump bail bonds. Order of learned trial Court is based upon
sound reasons and did not require interfere.
For the foregoing reasons I do not find merit
in this revision application which is dismissed.
JUDGE
Ihsan.