Ghulam Said Khan, etc Vs State, etc

Judgment Sheet

PESHAWAR HIGH COURT, ABBOTTABAD BENCH

JUDICIAL DEPARTMENT

Writ Petition No.370-A/2026

Ghulam Said Khan, etc. ... (Petitioners) versus

The State, etc. ... (Respondents)

Present: Mr. Abdul Saboor Khan, Advocate for petitioners.

Malik Amjad Inayat, Additional Advocate General for State.

Date of hearing: 16.03.2026.

JUDGMENT

SYED MUDASSER AMEER, J.- Through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioners assail the orders of the Courts below whereby the bonds furnished by them for securing the life of a female, namely Mst. Roshan Bibi, were forfeited and, upon failure to pay the penalty, they were committed to civil prison for six months.

2.The record shows that Mst. Roshan Bibi, aged about 21 years, appeared before Police Station SB. Hon’ble Mr. Justice Syed Mudasser Ameer.

Komila on 13.02.2025 and reported that her parents had engaged her without consent and she apprehended danger to her life. She was produced before the learned Judicial Magistrate where her statement under section 164 Cr.P.C. was recorded.

On her request, she was handed over to petitioner No.1 subject to furnishing a bond in the sum of Rs.5,000,000/-, with petitioners No.2 and 3 as sureties, to ensure her safety and production as and when required.

3.Subsequently, on 20.09.2025, information surfaced regarding her alleged death. The Court summoned petitioner No.1 to produce her. A lady was produced, but forensic examination revealed that she was not the same person. This led to suspicion of death or murder, and an FIR under sections 302/311 PPC was registered. The learned Magistrate forfeited the bonds and, upon non-payment of penalty, committed the petitioners to civil prison vide order dated 12.11.2025, which was upheld in appeal on 17.02.2026. Hence, this petition.

4.Heard. Record examined.

SB. Hon’ble Mr. Justice Syed Mudasser Ameer.

5.This Court is not concerned with the merits of the criminal case. The question is confined.

Was the procedure under section 514 Cr.P.C.

followed?

6.Section 514 Cr.P.C. provides a complete and structured mechanism for forfeiture of bonds. It is not open to the Court to bypass its stages. First comes forfeiture with reasons. Then show cause.

Thereafter, if the penalty is not paid, recovery must be attempted through attachment and sale of movable property under subsection (2). Only if such recovery fails can the Court resort to civil imprisonment under subsection (4).

7.The scheme is plain. Imprisonment is the last step.

8.In the present case, the learned trial Court, after issuing show cause and receiving reply, straightaway committed the petitioners to civil prison. There is nothing on record to show that any effort was made to recover the penalty through attachment and sale of property as mandated by subsection (2).

SB. Hon’ble Mr. Justice Syed Mudasser Ameer.

9.This omission strikes at the root. The procedure under section 514 Cr.P.C. is mandatory. It admits of no deviation.

10.In Muhammad Ameer v. The State (2020 MLD 876), the Lahore High Court held that where the Court, without affording proper opportunity and without first resorting to attachment of property, proceeds to commit the surety to civil prison, such action is illegal and renders the order a nullity. It was further held that committal to civil prison is the last resort and any deviation from the prescribed procedure is impermissible.

11.The same principle stands fortified by Muhammad Yousaf v. The State (2003 PCr.LJ 347), wherein it was held that where the law requires a thing to be done in a particular manner, it must be done in that manner alone or not at all.

12.There is yet another dimension.

Deprivation of liberty must be in accordance with law. Article 4 of the Constitution guarantees that no action detrimental to life or liberty shall be taken except in accordance with law. Article 10-A further SB. Hon’ble Mr. Justice Syed Mudasser Ameer.

ensures the right to fair trial and due process. When a person is sent to civil prison without adhering to the mandatory procedure prescribed by law, the action ceases to be lawful and becomes constitutionally infirm.

13.Tested on these principles, the impugned orders cannot be sustained. The learned trial Court acted in disregard of statutory procedure. The appellate Court failed to correct the error. The result is a deprivation of liberty not sanctioned by law.

14.Needless to add, if upon remand the Court proceeds in accordance with law and ultimately resorts to subsection (4), the period already undergone by the petitioners in civil prison shall be set off against the maximum term provided therein.

15.For what has been discussed above, this petition is allowed. The impugned orders dated 12.11.2025 passed by the learned Senior Civil Judge/Judicial Magistrate, Kohistan at Dassu and dated 17.02.2026 passed by the appellate Court are set aside. The matter is remanded to the learned trial Court for decision afresh strictly in accordance with law.

SB. Hon’ble Mr. Justice Syed Mudasser Ameer.

16.The petitioners, namely Ghulam Said Khan, Javed Iqbal and Muhammad Umair, shall be released forthwith, if not required in any other case.

17.These are the detailed reasons of the short order of even date.

ANNOUNCED

(Jamil)

JUDGE

SB. Hon’ble Mr. Justice Syed Mudasser Ameer.