Monday, 16 September 2013

Property of surety can be attached even after his death

PLJ 2012 SC (AJ&K) 161
[Revisional Jurisdiction]
Present: Muhammad Azam Khan, C.J. and Raja Saeed Akram Khan, J.
TASSADAQ HUSSAIN GILLANI--Petitioner
versus
STATE through Advocate-General & 3 others--Respondents
Crl. Rev. Petition No. 5 of 2005, decided on 2.3.2012.
(Revision Petition from the order of the Shariat Court dated 28.2.2005 in Criminal Revision Petition No. 116 of 2004).
Criminal Procedure Code, 1898 (V of 1898)--
----S. 514--Bail bond was executed--Violated terms of bond and did not appear in Court on the date fixed and absconded--Bond was forfeited--When surety could not offer valid explanation, then Court passed order that amount of forfeited bond be recorded by attaching and selling immovable property of surety--Validity--Bond was forfeited before death of surety and after his death the Court rightly passed order for attachment of landed property to recover forfeited amount of bond.       [P. 165] A
Criminal Procedure Code, 1898 (V of 1898)--
----S. 514--Scope of--Provisions of S. 514, Cr.P.C. are mandatory in nature which have been complied with in letter and spirit--Trial Court, before passing final order, has not adopted mandatory procedure.      [P. 165] B
Criminal Procedure Code, 1898 (V of 1898)--
----S. 514(2)--Forfeited of surety bond--Question of--Whether, a warrant for attachment of immovable property can be issued--In case the surety has died, amount of surety can be recovered by attachment of landed property--Validity--If sufficient cause is not shown and penalty is not paid, Court may proceed to recover by issuing a warrant for attachment and sale of moveable property belonging to such person or his estate if he be dead.  [P. 165] C
Criminal Procedure Code, 1898 (V of 1898)--
----S. 514--Forfeited personal bond of accused as well as surety bond was executed--Question of--Whether lenient view can be taken--Validity--Law and order situation in state is deteriorating day by day and Court must have taken notice of it--Once it has been proved that penalty is liable to be imposed, then entire amount should be recovered.  [P. 166] D
Criminal Procedure Code, 1898 (V of 1898)--
----S. 514--Forfeited personal bond of accused--Discretion exercised by Court cannot be interfered with by Supreme Court in routine unless it is shown that discretion had been exercised arbitrarily fancifully or against principle--Validity--Order passed by trial Court which was affirmed by Shariat Court has been passed in proper exercise of discretion and keeping in view the facts it needs no interference by Supreme Court--Supreme Court had not hesitation in holding that Courts below had examined matter in its true perspective and rightly came to conclusion that entire amount of bond executed by surety be recovered after sale of property belonging to deceased surety.            [P. 168] E
Mr. Muhammad Yaqoob Khan Mughal, Advocate for Petitioner.
Raja Ghazanfar Ali, Advocate General for State.
Date of hearing: 6.2.2012.
Judgment
Raja Saeed Akram Khan, J.--This criminal revision petition is directed against the order of the Shariat Court of Azad Jammu and Kashmir dated 28.2.2005, whereby the revision petition filed by the petitioner, herein, was dismissed.
2.  The necessary facts giving rise to this revision petition are that a case under Section 302, A.P.C., was registered against Khadam Hussain and others. After completion of investigation, challan was submitted by the Police in the District Court of Criminal Jurisdiction, Muzaffarabad. Later on bail application was moved on behalf of the accused which was accepted to the extent of some accused, including one Altaf Hussain. Muhammad Yousaf Shah (deceased), father of the petitioner, herein, stood surety for the accused, Altaf Hussain, and a bail bond in the sum of Rs. 5,00,000/- was executed by him. During the course of proceedings of trial, the said accused, Altaf Hussain, absconded and the trial Court, vide order dated 29.4.2002, forfeited the personal bond of the accused as well as the surety bond executed by Muhammad Yousaf Shah, surety. Proceedings under Section 514, Cr.P.C, were separately initiated by the District Criminal Court, Muzaffarabad against MuhammadYousaf Shah, surety. In response to the show cause notice, the surety filed objections. The matter remained pending for one reason or the other. In the meantime, Muhammad Yousaf Shah, the surety, died. The trial Court, vide order dated 30.7.2004, ordered that the land owned by the said deceased surety be attached and thereafter the amount of bond be realised by selling the said property. The petitioner, being successor of Muhammad Yousaf Shah, surety, assailed that order through a revision petition before the Shariat Court. The same was dismissed vide impugned order dated 28.2.2005. The said order is the subject of this revision petition.
3.  Mr. Muhammad Yaqoob Khan Mughal, the learned counsel for the petitioner, argued that the orders of both the Courts below are against the law and facts of the case. No ample opportunity was provided before passing these orders. The petitioner is making his best effort to trace out the whereabouts of the accused, AltafHussain. In this respect a report has also been lodged before the police and the police is also investigating the matter. He further argued that there is nothing on the record that the father of the petitioner, who stood surety of the accused, has facilitated the absconsion of the accused. The surety has already died, therefore, the proprietary demands that surety be discharged from the liability. He urged that the Court has ample powers to remit the sum of forfeited bond. Both the Courts below have not kept in mind this fact and have not rightly exercised the discretion. Even otherwise, according to the learned counsel, both the Courts below have failed to apply correct law. While proceeding under Section 514, Cr.P.C., both the Courts below ignored the important aspect that under law only movable property can be attached and not the immoveable property. The learned counsel for the petitioner has lastly argued that if the Court comes to the conclusion that the orders passed by the Courts below are in accordance with law, then the lenient view should be taken as the surety has already died.
4.  On the other hand, Raja Ghazanfar Ali, the learned Advocate-General, has argued that the orders have been passed by both the Courts below after application of judicial mind and following the procedure laid down under law. No illegality has been committed by both the Courts below. The trial Court has appreciated the evidence brought on the record. He lastly argued that the conduct of the surety was also relevant that he never tried to produce the accused in the Court.
5.  We have heard the arguments of both the parties at length and also perused the record. The following points were formulated by this Court for consideration:--
"(i)       Whether under Section 514(2), Cr.P.C., a warrant for attachment of immovable property can be issued and in case the surety has died, the amount of surety can be recovered by attachment of land;
(ii)        The word `estate' has been used in Section 514(2), Cr.P.C, which means the `landed property' because the estate includes the landed property. If the word `estate' includes landed property, then whether the warrant can also be issued against immovable property; and
(iii)       Whether in the instant case the prescribed procedure for attachment of property has been followed or not."
6.  Before dilating upon the above stated questions, it would be appropriate to examine the relevant provisions of law, i.e., Section 514, Cr.P.C. which is reproduced below:--
"514.  Procedure on forfeiture of bond.--(1) Wherever 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 106 or Section 118 is convicted of an offence the commission of which constitutes a breach of the conditions of his 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."
A glance reading of the above provision shows that there are three stages which are required to be followed before passing a final order: (i) where the bond was for appearance of an accused as provided under Section 514, Cr.P.C, as soon as the accused absents himself in violation of the bond executed by him or his surety, the first step to be taken by the Court was to satisfy itself that the accused has violated the terms and conditions of the bond and if the bond was liable to be forfeited, the Court would pass order for its forfeiture while recording the reasons in that respect; (ii) the second step to be taken by the Court is to call upon the person bound by such bond to pay the penalty thereof or to show cause as to why the penalty should not be paid; and (iii) the third step to be taken by the Court is, if instead of making the payment, the person bound by the bond would offer explanation, then by recording reasons he will be asked as to why the offer made by him should or should not be accepted.
7.  We have examined the record minutely. It is admitted position that Muhammad Yousaf Shah, deceased, stood surety for accused, Altaf Hussain, and a bond was executed in this regard. It is also apparent from the record that the said accused has violated the terms of bond and he did not appear in the Court on the date fixed and absconded. After failing to give satisfactory explanation, the bond was forfeited. After forfeiture of bond, the surety was called upon to show cause as to why the penalty should not be imposed upon him. When the surety could not offer the valid explanation, then the Court passed order that the amount of forfeited bond be recovered by attaching and selling the immovable property of the surety. As in the case in hand, the bond was forfeited before the death of surety and after his death the Court rightly passed the order for attachment of landed property to recover the forfeited amount of the bond. Therefore, the argument of the learned counsel for the petitioner that proper procedure was not followed has no substance. We are conscience that the provisions of Section 514, Cr.P.C, are mandatory in nature which have been complied with in letter and spirit. There is no ambiguity in our mind that the trial Court, before passing final order, has not adopted the mandatory procedure laid down in the above referred provisions.
8.  Now we advert to the question that whether under Section 514(2), Cr.P.C, a warrant for attachment of immovable property can be issued and in case the surety has died, the amount of surety can be recovered by attachment of landed property. It is provided under sub-section (2) of Section 514, Cr.P.C, 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. What does the word `estate' mean. It would be appropriate to reproduce the dictionary meanings of the word `estate' as given in different dictionaries.
In Chambers 21st Century Dictionary, the word `estate' is defined as under:--
"a large piece of land owned by a person or group of people; an area of land on which development of a particular kind has taken place, e.g. houses on a Housing Estate or factories on an industrial estate; a person's total possessions (property or money, etc.), especially at death."
In Black's Law Dictionary Fifth Edition, the word `estate' means `The degree, quantity, nature, and extent of interest which a person has in real and personal property'.
9.  From bare reading of the above said dictionary meanings, it is clear that `estate' includes all sorts of properties including immovable property. Therefore, the argument of the learned counsel for the petitioner that recovery can only be made after attachment of movable property is misconceived. In this regard reliance can be placed on a case reported as Roshan v. The State [PLD 2001 Karachi 17], wherein it has been held as under:
"I have perused the material placed on record. The contention that after the death of the surety, no action could be taken under law is misconceived. The grant of bail to accused and his release on furnishing surety is nothing but change of custody. The accused is placed in the hands of surety after release from the judicial custody. The wisdom behind introducing Section 514, Cr.P.C. by the Legislature was that in case the accused absconds then penalty imposed upon the surety may be recovered from his property. Thus it is a joint liability of person who stood surety and the property. By the death of surety, the amount of penalty is to be recovered by the Court out of the property for which the bond was executed by him before the Court."
10.  Now we advert to the point whether a lenient view can be taken in such like cases. Admittedly, the accused was involved in a murder case and according to record he actively participated in the occurrence. He was assigned a specific role. Even otherwise, the law and order situation in the State is deteriorating day by day and the Court must have taken the notice of it. Therefore, the earlier law has almost been overruled and there is consistent view of this Court as well as the Supreme Court of Pakistan that once it has been proved that penalty is liable to be imposed, then entire amount should be recovered. The basic judgment on this point is a case reported asDildar and another v. The State [PLD 1963 SC 47] in which it was held that a person who does not stand surety for the monetary benevolence he has to be dealt with leniently. This case has already been distinguished by the Supreme Court of Pakistan in a Full Court judgment delivered in a case reported as Malik Sher Ahmad Khan v. The State [1996 SCMR 244] in which it has been held as under:--
"4. No doubt the sureties in the case of Dildar supra stood sureties out of what has been described as `fellow-feeling' because they did not belong to the province of residence of accused Amir Jan and, therefore, they did not know his antecedents. Again Amir Jan was stated to have died in Multan and had remained untraceable. On these considerations a lenient view was taken by this Court in Dildar's case.
In the instant case the petitioner is the Lambardar of the village to which Suleman accused belonged. He would be presumed to have had the knowledge of the credentials of Suleman accused. He was so dare devil that soon after his release on bail, he committed the murder (perhaps of his rivals) and had become fugitive from law. The case before us is thus clearly distinguishable from that of Dildar's case."
In a case titled Ch. Muhammad Younus and another v. Robkar-e-Adalat & another [PLJ 2001 SC (AJ&K) 178], it was held by this Court as under:--
"6.  After hearing the respective contentions of the learned counsel for the parties, it may be stated that the trial Court as well as the Shariat Court have confiscated the whole amount of Rs. 10 Lac as undertaken by the appellants while furnishing their surety bonds. There seems to be no earthly reason for the reduction of amount of surety bonds as we have observed in so many cases that it has become a routine particularly in District Mirpur and Bhimber that the accused after getting their release on bail usually make good their escape by absconding. Therefore, in our view the sureties do not deserve any leniency in the matter of confiscation of their surety bonds."
It is further observed in this case as under:
"8.  It will not be out of place to mention here that the situation of law and order during the present days has deteriorated to a considerable extent. It has become the routine of the accused to jump of the bail and to abscond rather than facing their trials. Those accused who are involved in heinous offences their sureties do not deserve any leniency in the matter of forfeiture of their bail bonds. Thus, it is imperative that the Courts of law take stringent measures against those who stand sureties and undertake to produce the accused on each and every date of hearing, involved in heinous offences like murder etc., but later on expect that they may be shown indulgence. In such like cases normally no leniency should be shown to the sureties in matter of reduction of the amount of their bail bonds."
Similarly in a case reported as Muhammad Hussain and another v. The State [PLD 1995 SC 348], it was observed as under:--
"The next contention of the learned counsel for the petitioners, which is common in both the cases, is that as the petitioners had not derived any monetary benefit by standing sureties in the cases, the trial Court should have taken a lenient view and should not have forfeited the entire amount of the bonds. Reliance in this connection has been placed by the learned counsel on the case Dildar and another v. The State PLD 1963 SC 47. It is true that in the above-cited case, this Court observed that the trial Court before forfeiting the bond had not made efforts to enquire into the relevant matter and, therefore, this Court after examining the facts of the case reduced the amount of forfeiture of bond from Rs. 5,000 to Rs. 1,000. However, no hard and fast rule in this regard could be laid down as the forfeiture of bond in each case would depend on the facts and circumstances of each case. In the present case, the trial Court has ordered forfeiture of the entire amounts of surety bonds in both the cases. However, the High Court in revision substantially reduced the amounts by exercising discretion. No infirmity appears in the orders of the High Court so as to call for any further interference by this Court. There is no merit in these petitions which are, accordingly, dismissed and leave is refused."
11.  It is well settled proposition of law that the discretion exercised by a Court ordinarily cannot be interfered with by this Court in routine unless it is shown that the discretion has been exercised arbitrarily, fancifully or against the principles laid down by the superior Courts. In the present case the order passed by the trial Court which was affirmed by the Shariat Court has been passed in proper exercise of discretion and keeping in view the facts and circumstances of the case, it needs no interference by this Court. Therefore, we have no hesitation in holding that both the Courts below have examined the matter in its true perspective and rightly came to the conclusion that entire amount of bond executed by the surety be recovered after the sale of property, belonging to the deceased surety.
In the light of what has been stated above, finding no force in this revision petition, it is hereby dismissed.
(R.A.)  Petition dismissed

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