1996 SCMR 244 (PLP)

Date of hearing: 25th October, 1995, MUHAMMAD BASHIR KHAN JEHANGIRI, J: ‑‑ Malik Sher Ahmad Khan, petitioner, seeks leave to appeal against the order dated 13‑9‑1995 of a learned Judge in Chamber of Peshawar High Court exercising the powers of revision.

2. The petitioner stood surety for one Suleman who was accused of an offence under section, 302, P.P.C. and had been granted bail before arrest pending trial. In consequence, the petitioner executed bond in the rum of Rs.50,

000. It appears that the aforesaid accused failed to attend Court. Ultimately proceedings for forfeiture of the bond were initiated by the learned Additional Sessions Judge. Thereafter, a Magistrate of the First Class was directed to recover the amount of bond. The learned Magistrate by his order, dated 2‑8&1994 forfeited the amount o' bond to the tune of Rs.50,W. The petitioner feeling aggrieved filed a revision which was taken up by the learned Single Judge of the High Court who vide his impugned order reduced it to Rs.25,000, against this order, as stated earlier, special leave to appeal bas been sought.

3. Mr. Saeed Baig, learned counsel for the petitioner, placed implicit reliance on an old authority of this Court in: Dildar and another v. The State (PLD 1963 SC 47) to contend that the petitioner being Malik of the village had not stood surety for the accused for monetary consideration and that it was his sheer benevolence, therefore, he has been dealt with rather severely. The principle laid down in Dildar's case supra is that:‑‑ " in dealing with cases of sureties who are in default, a balance has to be held between undue leniency, which might lead to abuse of the procedure and interference with the course of justice in a large number of cases, and on the other hand, undue severity which might lead to unwillingness on the part of neighbours and friends to come forward and give bail for persons under accusation. Finally, in assessing to what extent the bond should be forfeited, the Court would have regard to such matters as whether the sureties have any direct interest through financial or blood connection with the accused, whether they have connived at or procured the absence of the accused and whether they have done their best to secure his attendance .* The antecedents of the two sureties, namely, Ghulam Hussain and Dildar, appellants, in the precedent case were elicited by this Court and it was found that these two persons stood sureties out of fellow‑feeling but "they certainly appear to have taken their responsibility altogether too highly.

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 hot 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.

5. In the instant case the petitioner is the Lambardar of the village to A 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) A and had become fugitive from law. The case before us is thus clearly distinguishable from that of Dildar's case.

6. Taking all the circumstances into account, we find that the learned g Single Judge in the High Court had already taken a lenient view of the matter I by reducing the penalty from Rs.50,000 to Rs.25,000.

7. This petition having no substance stands dismissed and leave to appeal C in the circumstances is not granted. N.H.Q./S‑1012/S Leave refused.