2026 P Cr. L J 665

 2026 P Cr. L J 665

[Sindh]

Before Muhammad Hasan (Akber), J

MUHAMMAD NOMAN---Applicant

Versus

The STATE and another---Respondents

Criminal Miscellaneous Application No. 345 of 2023, decided on 3rd

October, 2025.

Criminal Procedure Code (V of 1898)---

----S.514---Penal Code (XLV of 1860), Ss. 161, 409, 420, 467, 468 & 34---

Prevention of Corruption Act (II of 1947), S. 5(2)---Forfeiture of surety

amount---Scope---Accused was granted bail in a criminal case against

a surety of Rs. 100,000/= furnished by applicant---Bail was cancelled

due to the absence of accused---Notice under S.514, Cr.P.C, was issued-

--Despite the applicant s reply, the Trial Court forfeited of the entire

surety amount---Validity---Factual matrix of the case revealed that the

default was neither willful nor contumacious---Record indicated that

the accused did present himself in Court on the relevant date and

remained present until approximately 01:00 p.m.---Accused s inability

to mark attendance was attributable to the unavailability of the

Presiding Officer, a circumstance beyond his control---Accused s

subsequent departure at 01:15 p.m., while perhaps not ideal, was

explained by his state of being unwell and observing a fast---

Crucially, this was not a case of the accused absconding or showing a

blatant disregarded for the Court's authority---Accused promptly

secured pre-arrest bail from the Court and presented himself before

the Trial Court at the next opportunity, demonstrating his continued

intent to abide by the judicial process---In such a scenario, the failure

to mark attendance on a single occasion, for the reasons stated,

constituted a technical and venial breach at best---Court s decision to

dismiss the application for condonation of absence, cancel the bail

and consequently forfeit the entire surety bond was a

disproportionately severe response---Law envisioned a graduated

approach, where the nature of the breach was commensurate with

the penalty imposed---Minor breach called for a minor penalty, not

the extreme step of full forfeiture---Power to forfeit a surety bond

under S.514, Cr.P.C, was indeed discretionary, but such discretion

must be exercised judiciously and not arbitrarily or punitively---

Objective of taking a surety was to secure the attendance of the

accused, not to generate revenue for the State or to inflict a harsh

penalty for a minor or explained lapse---Impugned order dated 15.05.2023, whereby the entire surety amount of Rs.100,000/- was

forfeited, could not be sustained in the eyes of the law as the same

was passed in a hurried manner, without adequate consideration of

the mitigating circumstances and thus amounted to an improper

exercise of judicial discretion---Thus, it appeared that the surety was

cancelled harshly and the surety, who stands as a guarantor, was not

to be punished severely without there being extraordinary

circumstances justifying such a drastic measure---No

suchextraordinary circumstances existed in the present case---

Therefore, while the Trial Court was not entirely unjustified in taking

note of the breach, however the punishment of full forfeiture was

excessive---Consequently, the application was allowed by setting aside

the impugned order.

2018 MLD 1857; 2007 SCMR 575; 1997 SCMR 1387 and 2011 SCMR

929 rel.

Iftikhar Ahmed Shah along with Muhammad Naeem Awan for

Applicant.

Zahoor Ahmed Shah, Addl. P.G. for the State.

Date of hearing: 24th September, 2025.

ORDER

MUHAMMAD HASAN (AKBER), J.---Through the instant Criminal

Misc. Application, the applicant has impugned order dated 15.05.2023

passed by the learned Special Judge Anti-Corruption (Provincial),

Karachi, whereby the surety amount of Rs.100,000/- was forfeited.

2. The background of the case as narrated in the memo. of

application is that the accused Salman Sharif was granted bail against

a surety of Rs.100,000 furnished by the applicant. On 18.04.2023, he

attended court but left at 1:15 PM due to illness and fasting when the

Presiding Officer was absent. The next day, his absence was not

condoned, his bail was cancelled, and a notice under Section 514

Cr.P.C. was issued. Despite the applicant s reply, the trial court ordered

forfeiture of the entire surety amount.

3. Learned counsel for the applicant contends that the forfeiture

order is illegal, arbitrary, and passed in haste without proper

application of mind. It ignored that the accused soon obtained pre-

arrest bail and appeared before court. The order is claimed to violate

fundamental rights under Articles 4, 10-A, 15, and 25 of the

Constitution and thus liable to be set aside. Reliance is placed on

various case laws.

4. Learned Addl. P.G. supports the impugned order, arguing that the

accused breached bail terms by leaving court without permission and the surety was responsible for compliance; The trial Court acted

lawfully under Section 514 Cr.P.C. and the applicant has not shown any

illegality or irregularity in the order.

5. Heard learned counsel for the applicant and learned Addl. P.G and

perused the record. The factual matrix of the case reveals that the

default was neither willful nor contumacious. The record indicates

that the accused, Salman Sharif, did present himself in Court on the

relevant date and remained present until approximately 01:00 PM. His

inability to mark attendance was attributable to the unavailability of

the Presiding Officer, a circumstance beyond his control. His

subsequent departure at 01:15 PM, while perhaps not ideal, was

explained by his state of being unwell and observing a fast. Crucially,

this was not a case of the accused absconding or showing a blatant

disregard for the court's authority. He promptly secured pre-arrest bail

from this Court and presented himself before the trial court at the next

opportunity, demonstrating his continued intent to abide by the

judicial process. In such a scenario, the failure to mark attendance on

a single occasion, for the reasons stated, constitutes a technical and

venial breach at best. The learned Special Judge's decision to dismiss

the application for condonation of absence, cancel the bail and

consequently forfeit the entire surety bond was a disproportionately

severe response. The law envisions a graduated approach, where the

nature of the breach is commensurate with the penalty imposed. A

minor breach calls for a minor penalty, not the extreme step of full

forfeiture. The power to forfeit a surety bond under Section 514 of the

Code of Criminal Procedure, 1898, is indeed discretionary, but such

discretion must be exercised judiciously and not arbitrarily or

punitively. The objective of taking a surety is to secure the attendance

of the accused, not to generate revenue for the state or to inflict a

harsh penalty for a minor or explained lapse. The impugned order

dated 15.05.2023, whereby the entire surety amount of Rs.100,000/-

was forfeited, cannot be sustained in the eyes of the law. The

impugned order was passed in a hurried manner, without adequate

consideration of the mitigating circumstances and thus amounts to an

improper exercise of judicial discretion. It appears that the surety was

cancelled harshly and the surety, who stands as a guarantor, is not to

be punished severely without there being extraordinary circumstances

justifying such a drastic measure. No such extraordinary

circumstances exist in the present case. Therefore, while the trial

Court was not entirely unjustified in taking note of the breach,

however the punishment of full forfeiture is excessive. Reliance in this

regard is placed upon 2018 MLD 1857, 2007 SCMR 575, 1997 SCMR 1387

and 2011 SCMR 929. Consequently, the application is allowed; and the impugned Order

dated 15.05.2023 for forfeiture of Surety amount is set-aside.

JK/M-126/Sindh Application allowed.