P L D 2018 Balochistan 91
Before Mrs. Syeda Tahira Safdar and Abdullah Baloch, JJ UMER DARAZ ---Petitioner
Versus
JUDICIAL MAGISTRATE -IX, QUETTA and 2 others ---Respondents
Constitutional Petition No.1204 of 2017, decided on 21st May, 2018.
Criminal Procedure Code (V of 1898) ---
----S. 514---Penal Code (XLV of 1860), S.22---Surety ---Forefeiture of bond---"Movable
property" ---Scope ---Future salary, attachment of ---Legality ---Reduction in surety bond---
Petitioner stood surety and Trial Court passed an order to attach his future salary in lieu of
forefeiture of surety bond---Validity ---Term "movable property" as used in S.514, Cr.P.C. had
same meanings as defined in S.22, P.P.C.---Movale property of whatever description included corporeal property which c ould be perceived and received and in no way included salary of
person not yet accrued ---In absence of movable property, recovery could have been made as
contained in S.514(4), Cr.P.C., which was never pressed---Warrants of imprisonment in jail for the ter m to be decided by Trial Court but not exceeding six months could have been issued, if the
amount, as directed was not paid---No illegality existed in the orders passed by two courts
below, except the direction for attachment of salary ---High Court directe d the Trial Court to
adopt procedure prescribed by S.514, Cr.P.C. for recovery of the amount forfeited and set aside
the direction for attachment of salary ---Constitutional petition was allowed accordingly.
Muhammad Pervaiz for Petitioner.
Abdul Karim M alghani, State Counsel for Respondents.
Date of hearing: 25th April, 2018.
ORDER
MRS. SYEDA TAHIRA SAFDAR, J. ---The petitioner Umar Daraz applied this Court
for setting aside of the order dated 4th October 2017 of Judicial Magistrate -XI, Quetta, whereby
the request to reduce the amount of surety bond, directed to be forfeited in favour of the State,
was declined, and order dated 13th October 2017 of Additional Sessions Judge -IV, Quetta,
whereby the amount directed to be forfeited was reduced from Rs.100,000/ - (Rupees one
hundred thousand only) to Rs.80,000/ - (Rupees eighty thousand only), with a direction for
payment thereof.
2. The petition was pressed on the grounds that he (the petitioner) only stood surety for the
accused on humanitarian grounds, not f or any monetary gains; that proper opportunities were not
given to trace out the accused, thus the order for forfeiture of the surety was not justified in the
given state of facts, and unable to meet the law.
3. The learned counsel for the petitioner thoug h repeated the stance taken in the petition, but
in fact showed his grievance about order of the trial court, whereby his salary was stopped with a direction for recovery of forfeited amount therefrom. The referred to order was not annexed with the application nor its date was disclosed. Only a letter issued by the trial court addressed to the Divisional Sports Officer (Quetta Division), Government of Balochistan was placed before the court. It was a reminder to stop the monthly salary of the petitioner, and to deduct the forfeited amount therefrom, and to deposit the same in the concerned head of the account. The learned counsel requested that the salary be released, and he (petitioner) be allowed to pay the amount of surety in monthly installments.
4. The learned counsel making appearance for the State was of the view that the amount of
surety had already been reduced, no further reduction required in the described state of facts.
5. The learned counsel for the petitioner though pressed that his salary was stopped as
ordered by the trial court, but no such order was annexed with the petition, therefore, for proper appraisal of the facts the record of the trial court was called and perused. The perusal whereof reveals that bail was granted in favour of the ac cused Munir Ahmed in case FIR No. 67 of 2017,
Police Station Pashtoonabad, Quetta, vide order dated 4th August 2017 of Judicial Magistrate XI, Quetta, and the petitioner stood surety for appearance of the accused before the court on each date of hearing, a nd executed a bond with surety of Rs.100,000/ -. The fact evident from the order
sheets maintained in the case file by the trial court that the trial court took cognizance of the offence, and notices were issued for the accused, and also for the petitioner in his capacity as of
his (accused) surety. The accused avoided to appear, the petitioner was on notice, and a number of opportunities were given to him (petitioner) to procure attendance of the accused, but he failed. Meanwhile the petitioner applied the trial court for reduction of the amount of the bond, and also to allow him to deposit the forfeited amount in installments. The request was declined vide order dated 4th October 2017. Consequent thereto there was a direction for forfeiture of the bond foll owed by a direction to the Department concerned to stop the salary of the petitioner.
The order sheet maintained for 4th October 2017 was with the order to the effect. This process continued. Meanwhile another application was filed by the petitioner with a request to allow him
to deposit the forfeited amount through monthly installments at the rate of Rs.10,000/ - per
month. The request was allowed vide order dated 23rd December 2017. The fact evident that the petitioner failed to avail the concession, and t he installments as fixed were never deposited. Thus
the trial court left with no option except to repeat the direction to stop the salary of the petitioner. The petitioner appealed against the order dated 4th October 2017, and succeeded to obtain an order for reduction of the amount of surety bond from Rs.100,000/ - to Rs.80,000/ -.
6. The petitioner questioned the order dated 4th October 2017, but his request for reduction
and payment in installments were declined by the trial court, and order dated 13th Oct ober 2017
whereby the amount forfeited was reduced. The copy of impugned order dated 4th October 2017 contained no direction for stoppage of salary; rather it was the order sheet maintained for the date which contained a direction to the effect. Though tri al court once declined to allow the payment
in installments, but subsequently allowed the relief on 23rd December, 2017, which was never
complied with. It was evident from the case file that till date no amount was paid by the
petitioner despite acceptance of his request. At present he was agitating for release of his salary
and payment of amount in installments. The petition was with the concealment of facts, thus there remains no occasion to either further reduce the amount of the bond already forfeited, or to allow the petitioner to deposit it in monthly installments.
7. The only point left for consideration was that whether the order of the trial court to stop
the salary of the petitioner was within the four corners of the law applicable or otherwise? In the
case in hand the petitioner stood surety for the accused for his (accused') appearance before the court, but failed to secure his (accused) attendance. Section 514 Criminal Procedure Code (Cr.P.C.) would be relevant in the circumstances. Reproduction would be beneficial:
"514 Cr.P.C. 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 appear ance 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 Magistrate 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 exe cuted in lieu of his bond under section 514B, 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.
8. As required an opportunity was given to the petitioner to show cause why the bond
submitted by him may not be forfeited and the penalty may not be pai d. In response he appeared,
but was not able to satisfy the court. Section 514, subsection (2) Cr.P.C. is with the procedure to
be adopted by a trial court when a court is not satisfied with the cause shown by the person who stood surety for non -producing the accused before the court followed by an order for attachment,
and sale of the moveable property belonging to such person or his estate if he be dead. While
subsection (4) of the Section is with the provision of issuance of warrant and to confine such
person in jail for a term which may extend to a period of six (06) months. The Section contained no provision which could be pressed for attachment of monthly salary and deduction of forfeited amount therefrom.
9. In the case in hand the trial court ordered for stoppage of payment of salary to the
petitioner, and to recover the amount therefrom. This provision only stipulates attachment and sale of moveable property. Now the question would be whether salary of such person covered by the term moveable propert y, and whether the amount could be recovered there from? The term
moveable property is not defined in the Code of Criminal Procedure. Rather Section 4 subsection (2) Cr.P.C. is with the provision.
"Section 4 subsection (2) Cr.P.C. Words referring to acts. Words which refer to acts
done, extend also to illegal omission; and
Words to have same meaning as in Pakistan Penal Code . All words and expressions
used herein and defined in the Pakistan Penal Code, and not hereinbefore defined, shall
be deemed to have t he meanings respectively attributed to them by the Code.
This makes the words and expressions used in the Pakistan Penal Code (P.P.C.) shall
have the same meanings as attributed to them by the Code (P.P.C).
Section 22 P.P.C. defines the term moveable property, which is to the effect:
"22 P.P.C. " Moveable property". ---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."
Thus for all intents and purposes the term moveable property as used in Section 514
Cr.P.C. would have same meanings as defined in Section 22 P.P.C. Thus a moveable property of whatever description it may include corporeal property which could be perceived and received. It in no way include a salary of a person not yet accrued.
10. In view there could be no order for attachment of future salary under the provisions of
Criminal law within the garb of attachment and sale of moveable property . Section 386 Cr.P.C.
though with a provision of recovery of fine through civil process against moveable or
immoveable property of the defaulter. It has no application in the case in hand. As the referred to provision deals with recovery of fine imposed on an offender when convicted for an offence, for
which he was charged, and sentenced to pay a fine. The trial court was on error when issued direction for attachment of the salary of the petitioner, and for recovery of the amount therefrom. In view of the l aw as described herein above, the trial court overlooked that in absence of
moveable property the recovery could have been made as contained in subsection (4) of section
154, Cr.P.C., which was never pressed. A warrant of imprisonment in jail for the term to be decided by the trial court, but not exceeding to six months could have been issued, if the amount, as directed was not paid.
In view of the described facts there was no illegality in the orders passed by courts, trial
and appellate, except the direction for attachment of the salary, thus to the extent the order is set aside. The trial court is advised to adopt the procedure provided by Section 514 Cr.P.C. for recovery of the amount forfeited. It was observed that the petitioner approached this court, and
tried to obtain a favourable order with concealment of facts, this precluded the court to extend any further leniency either in shape of reduction in the amount forfeited, or its payment in monthly installments.
The petition is disposed of in the sta ted terms with the above observations.
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