2012 P Cr (PLP)

MUHAMMAD HASHIM KHAN KAKAR, J.

The following relief has been sought in the instant petition:-- "It is therefore, respectfully prayed that the order dated 8-6-2011 passed by learned Judicial Magistrate-IV, Quetta and order dated 29-8-2011 passed by learned Sessions Judge, Quetta may kindly be set-aside and the surety amount may kindly be forgive/reduce (sic.), in accordance with law and in the circumstances of matter, this will meet the ends of justice, equity and fairplay."

2. The relevant facts, in small compass, are that an accused Inam-ul-Haq was granted bail by the trial Court to the tune of Rs.80,000 (rupees eighty thousand only) in case F.I.R. No.476 of 2010 dated 23rd November, 2010 registered at Police Station FIA. AHTC, Quetta, under Rules 5 and 11 of the Foreigners Order, 1951 (the "Ordinance"), punishable under section 3(2)(c)(1)/14 of the Foreigners Act 1946 (the "Act"), out of which, an amount of Rs.40,000 (rupees forty thousand only) was paid by the accused in cash, whereas for the remaining amount of Rs.40,000 (rupees forty thousand only) the petitioner stood surety of the said accused on humanitarian grounds.

3. Initially, accused Inam-ul-Haq was challaned under Rules 3 and 14 of the Act, however, subsequently, his Alien Registration Card No.102-7184375-5 was verified by the National Aliens Registration Authority (NARA) to be genuine one, issued by the Government of Pakistan, Ministry of Interior, as such, supplementary challan under Rules 5 and 11 of the Order was submitted and on this ground, the accused, being alien, was enlarged on bail. Later on, he jumped off his bail and, accordingly, the petitioner/surety was served with a notice as required under section 514 of the Cr.P.C., but he could not produce the accused before the trial Court and instead submitted an application for forgiving him or reducing the surety amount, which was dismissed by the trial Court vide order dated 8th June, 2011. The petitioner filed a revision petition before the Sessions Judge, Quetta, which was too dismissed vide order dated 29th August, 2011 and both the aforesaid orders are subject-matter of the instant constitutional petition.

4. While addressing the arguments, learned counsel for the petitioner stated that accused Inam-ul-Haq, for whom the petitioner stood surety, was an alien, having no relatives or friends in Pakistan, therefore, only on humanitarian grounds, he stood surety for the accused, who, after his release, jumped off the bail. He further contended that the petitioner has been treated harshly by the below Courts.

5. I am of the opinion that standing surety for an alien is an act of generosity, benevolence and until and unless, it is established that the surety got the accused released on bail for any ulterior motive, the surety is not to be dealt with harshly or ruthlessly nor punished severely without there being extraordinary circumstances, calling for full forfeiture of the surety bond. The Court, while dealing with the surety, must keep in mind the principle of undue leniency and undue severity as well as the circumstances of the case. Undue severity may lead to unwillingness on the part of neighbours and friends to come forward and give bail for a person under custody. The Courts are required to hold some sort of balance, while determining to what extent a bond is to be forfeited. It is true, as contended by learned DPG, that sureties of accused persons, involved in heinous crime, such as, kidnapping, dacoity, terrorism and murder, do not deserve any leniency in the matter of reduction of their bonds and the Court should take stringent measures against them, but it is equally true that the sureties of accused involved in the minor offences, like the instant one, should be treated leniently. In such like cases, punishable with minor penalties, the entire amount of the surety bond should not be forfeited, but only a reasonable amount may be forfeited, keeping in view the facts and attending circumstances of the case.

6. While holding the aforesaid view, I am fortified from an anecdote from the period of second Caliph Hazrat Umar (Razi Allah Tala Anho), wherein a renowned companion of the Holy Prophet (PBUH) had stood surety for a stranger accused of murder. The relic incident goes as under:-- In view of the above discussion, I am of the view that there is not a single tangible piece of evidence to show that either the surety have connived with or procured the absence of accused. The surety is a young lawyer belonging to the noble profession of Advocacy and while standing surety not gaining any thing nor he was privy for absconding of accused, as such, in peculiar circumstances of the case the penalty of Rs.40,000 (rupees forty thousand only) imposed by the trial Court reduced to Rs.20,000 (rupees twenty thousand only). With the above modification in quantum of fine amount, the petition stands disposed of. S.A.K./16/Q Order accordingly.