07/02/2022
. .
1. Writ Petition No.19063 of 2021
(Riaz Hussain vs. Judge Anti Terrorism Court & 6 others)
2. Writ Petition No.19064 of 2021
(Ghulam Abbas vs. Judge Anti Terrorism Court & 6 others)
J U D G M E N T
Date of Hearing: 25.01.2022
Petitioners by: Mr. Shakeel Javed Chaudhary Advocate
Respondent/State by: Mr. Azhar Saleem Kamlana Additional Prosecutor General
Sohail Nasir J: By way of this single judgment above mentioned two writ petitions, one filed by Ghulam
Abbas (19064 of 2021) and other by Riaz Hussain (19063 of 2021) are being decided together as arise out from orders dated 24.05.2021 and 01.10.2021 passed by the learned Judge Anti Terrorism Court (ATC), and learned Additional Sessions Judge (ASJ) Dera Ghazi Khan, on the basis of which, while proceeding against both the petitioners under
Section 514 Cr.P.C their immoveable properties have been attached and directed to be sold.
2. Azhar Hussain and others are the accused of a cross version that is outcome of case FIR No. 260 recorded on 10.11.2019 under Sections 302/324/353/186/440/148/139/
337-D, PPC read with Section 7 of the Anti Terrorism Act, 1997 (Act) and Section 13(2)(b) of the Punjab Arms (Amendment) Ordinance, 2015 at Police Station Kot
Mubarak district Dera Ghazi Khan and In this regard report
under Section 173 Cr.P.C (Challan) was submitted in the Anti Terrorism Court Dera Ghazi Khan (ATC).
3. One Din Muhammad, who was the complainant of cross version, also filed a private complaint in the court of ordinary jurisdiction about the same occurrence on 15.10.2020 against the same set of accused which was entrusted to the court of learned ASJ Dera Ghazi Khan.
4. In Challan case, Riaz Hussain (petitioner) stood surety for Azhar Hussain SI (accused) in sum of Rs.200000/- (two lacs) on 17.10.2020 to the satisfaction of learned ATC. Whereas, in private complaint Ghulam Abbas (petitioner) also stood surety for the same accused in sum of Rs.100000/- (one lac) on 09.02.2021 to the satisfaction of learned ASJ. 5. As Challan in cross case was pending in ATC and private complaint was about the same occurrence so on a reference made by learned ASJ it was transferred to ATC through the learned Sessions Judge Dera Ghazi Khan.
6. It was 24.05.2021, when due to non-appearance of Azhar Hussain SI in both the cases notices were issued to petitioners on commencement of proceedings against them under Section 514 Cr.P.C after forfeiture of their bonds which they had submitted. It is important to add here that in the order dated 24.05.2021, pertaining to proceedings in Challan case, last line at page No. 4 is missing however, it has been admitted by both the sides that in that line there was the order of forfeiture of bond.
7. Later on learned ATC finding that no schedule offence was made out had transferred both the cases to the court of ordinary jurisdiction which again was entrusted to learned ASJ.
8. It appears that, on 18.09.2021 both the petitioners submitted independent applications for recalling of proceedings and orders of attachment of their properties. On the next date that was 01.10.2021 when no one appeared on behalf of petitioners, their applications were dismissed for non-prosecution and in consequence thereof, orders were passed for attachment and sale of their immovable properties by the learned ASJ. It is important to mention here that later on, in compliance of an order dated 21.06.2021 passed by this Court in writ petition (15433 of 2021) both the cases were again sent back to the learned ATC which are pending there now.
9. Being aggrieved from the above referred orders dated 24.05.2021 and 01.10.2021 petitioners have approached this Court through the instant writ petitions. 10. The prayer clause of writ petition (19063) relating to Challan case shows that only order dated 24.05.2021 has been questioned. However when we examined the grounds taken in that writ petition, we found that order dated 01.10.2021 is also under attack, so the omission in prayer clause shall be deemed to be rectified and order dated 01.10.2021 will also be considered the part of prayer.
11. In view of above circumstances, the impugned orders hereinafter shall be called to have been passed by the learned trial court.
12. We have heard both the sides and we have also gone through the certified copies of relevant documents attached with writ petitions.
13. The law point for consideration in these matters is that whether it was within the domain of learned trial court to pass the orders of attachment and sale of immovable properties of petitioners?
14. Chapter XLII Cr.P.C relates to ‘Provisions as to Bonds’ covering the subjects of: -
Procedure on forfeiture of bond
(S. 514).
Procedure in case of insolvency or death of surety (S.514-A).
Appeal (S.515) and
Power to direct levy of amount due on certain recognizances (S.516).
15. As the question relates to proceedings against surety, so for an effective discussion we would like to reproduce the provisions of Section 514 Cr.P.C which says: -
“514. Procedure on forfeiture of 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 moveable 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 moveable 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”
(Emphasized applied)
16. A critical study of the above referred provisions makes it clear that there are certain stages to be crossed before the imposition of penalty and recovery thereof. To initiate the proceedings, as a first step, there must be a bond for appearance of accused or otherwise. We have noticed that the word ‘Bond’ used in Section 514 Cr.P.C is not confined to bail but it relates to any bond which under any of the provisions of Cr.P.C has been taken by the Court.
17. The word ‘Bond’ has also not been defined under any of the provisions of Cr.P.C, which according to dictionary meaning is as under: -
A thing that ties another down altogether.
A thing restraining bodily freedom.
A uniting force.
A restraint.
A responsibility.
A binding engagement.
An agreement.
18. The bond submitted by a surety has a self imposed condition that is to pay the penalty in case the terms and conditions of the bond are violated or the accused makes default in appearance before the court.
19. The proceedings under Section 514 Cr.P.C start only when there is forfeiture of bond and not otherwise. It is thereafter, when a notice is required to be issued to the surety to show cause that why he/she may not be ordered to pay the penalty that means the amount recorded in the bond? Said notice has been provided as ‘Form-XLV’ in schedule V of Cr.P.C which is as under: -
NOTICE TO THE SURETY ON BREACH OF A BOND
(Form-XLV)
To: ( )
Whereas on the day of____Year ______you became surety for ( ) that he should appear before this Court and bond yourself in default thereof to forfeit the sum of Rupee ( ) to Government and whereas the said accused ( ) has failed to appear before this Court and by reason of such default you have forfeited the aforesaid sum of rupees ( ).
You are hereby required to pay the said penalty or show cause, that why payment of the said sum should not be enforced against you.
Given my hand and the seal of the Court, this _______day of ____Year ______.
(Name of Court)
20. Subsequent to issuance of show cause notice, an opportunity has to be granted to the surety to submit his reply because there can be various bona fide reasons and eventualities that the accused made default in appearance before the court like he has been arrested in some other case or he is admitted in hospital because of some serious ailment. It is to be remembered that said opportunity has to be real, fair and reasonable. Therefore, if the court is satisfied from reply, the show cause notice can be withdrawn. However, if the surety fails to offer any sufficient cause, the court has to pass the order for imposition of penalty. As in this society people also stand surety on humanitarian grounds having no monitory interest or personal gain, so in that situation while penalizing the surety, it is within the discretion of the court to remit any portion of the penalty in terms of Section 514(v) Cr.P.C. While passing such order the court is also required to maintain balance between undue leniency and undue severity by showing generosity and benevolence.
21. It must not be skipped that before issuance of warrant of attachment, a chance must be given to the surety, if he desires to pay the penalty by providing him some reasonable time. Even the surety can be permitted to deposit the penalty in installments to be determined by the court keeping in view his financial condition.
22. It is thereafter, if surety fails to discharge the liability that the court can proceed to recover the penalty by issuing the warrant of attachment and not before that.
23. As a last resort, if penalty is not paid and cannot be recovered by attachment and sale, the surety shall be liable, by order of the court to imprisonment in the civil jail for a term which may extend to six months.
24. Coming to the controversy, the question before us is that what kind of property of a surety can be ordered to be attached and sold, Movable or Immovable, because in the case in hand the learned trial court, as evident from the order dated 01.10.2021, had directed the attachment and sale of immoveable properties of both the petitioners.
25. Sub-section (2) of Section 514 Cr.P.C speaks loud and clear that only ‘Moveable Property’ can be attached and directed to be sold. Under Section 4 Cr.P.C there is no definition provided for the words ‘Moveable’ or ‘Immoveable’. However Sub-section (2) says that ‘All words and expressions used herein and defined in the Pakistan Penal Code, and not hereinbefore defined, shall be deemed to have the meanings respectively attributed to them by that Code’.
26. Under Section 22 PPC, the words ‘Moveable
Property’ have been defined as under: -
“The words "movable property" are intended to include corporeal property of every description, except land and thing attached to the earth, or permanently fastened to anything which is attached to the earth.”
(Emphasize applied)
27. As the provisions of Section 514 Cr.P.C has clearly imposed a restriction on the court to attach ‘Immovable Property’ while proceeding against surety therefore, the learned trial court had no legal justification to pass the order of attachment and sale of immoveable properties of petitioners6. However, when Sub-sections (2) and (6) are read together an exception is found there. Sub-section (2) says that: -
“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”
(Emphasize applied)
28. The words ‘or his estate if he be dead’ does not mean that the court has unlimited powers. To exercise such authority and for passing the order of attachment of sale of the estate of surety it must be on the record that the bond was forfeited before the death of Surety as provided under Sub-section (6) that is as under: -
“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.”
29. It is needless to comment that the word ‘estate’ used in Sub-section (2) includes the Immoveable Property.
30. Summing up the discussions made above, leads to the conclusion that order dated 24.05.2021 directing the
6 ISA Bashir vs. The State 1993 PCRLJ 44 and Muhammad Ramzan vs. Muhammad Alam & 3 others PLJ
2003 Quetta 30
forfeiture of bonds of petitioners has been passed within the four corners of law. However, while issuing the direction of attachment and sale of immoveable properties of petitioners vide order dated 01.10.2021 the learned trial court has committed serious illegality which is not curable and this reminds us the famous maxim “Lex non a rege est violanda” that the law must not be violated even by the king.
31. Both the writ petitions are therefore, allowed. Impugned orders dated 01.10.2021 directing attachment and sale of immovable properties of petitioners and subsequent orders to that extent are set aside. The proceedings under Section 514 Cr.P.C shall continue against petitioners which shall be finalized by the learned trial court in accordance with law.
(Shakil Ahmad) (Sohail Nasir)
Judge Judge
Approved for Reporting
(Judge)
