1997 P Cr (PLP)

Dates of hearing: 21st and 23rd, May, 1995 This petition under section 561-A, Cr.P.C. has been filed calling in question the order, dated 6-8-1991, 24-8-1991 and 10-10-1994 passed by Mr. Muhammad Yasin, M.I.C., Sargodha, District Magistrate, Sargodha and Mr. Kazim Ali Malik, Additional Sessions Judge, Sargodha, respectively.

2. Brief facts of the case are that Mst. Rasoolan alias Malangni, was facing the trial in case F.I.R. No.278/88, dated 7-11-1988, under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979), registered with Police Station Sargodha Cantt., in the Court of Allaqa Magistrate 1st Class, Sargodha. Nazir Hussain petitioner herein stood surety in favour of Mst. Rasoolan accused and executed bail bond in the sum of Rs.10,000 on 13-12-1988 to the satisfaction of Magistrate 1st Class Cantt., Sargodha. Mst. Rasoolan after being released on bail, absented herself and did not come forward to face the trial. Resultantly, post-arrest bail allowed to her was cancelled. The surety bond executed in favour of the State was forfeited and a notice was issued to the petitioner accordingly. The petitioner did not appear in the Court in response to the notice issued to him. Learned Magistrate vide his order, dated 6-8-1991 proceeded ex parte against the petitioner and directed him to deposit the forfeited amount of Rs.10,

000. Feeling aggrieved, the petitioner preferred an appeal before the District Magistrate, Sargodha which was declined vide his order, dated 24-8-1991. A revision petition was directed against this order, dated 24-8-1991 in the Court of Sessions Judge and the same was entrusted to the learned Additional Sessions Judge, who vide his judgment, dated 10-10-1994 dismissed the same.

3. Learned counsel for the petitioner has mainly stressed that the amount is excessive and the petitioner is the poorest man on the earth, and in view of his poverty he deserves leniency. Further argued that the petitioner acted merely out of his benevolence and is not related to the accused Mst. Rasoolan alias Malangni. He is not even from her brotherhood. He should be shown leniency. Maintains that the petitioner made real efforts and it was' due to his sincere effort that the accused was again arrested. Lastly he argued that disappearance of the accused was not in connivance with the petitioner. He relied on Dildar and another v. The State PLD 1963 SC 47 and Shaukat Ali v. The State 1993 PCr.LJ 2041.

4. Learned counsel for the State, on the other hand controverted the contentions raised by the learned counsel for the petitioner on the ground that the bail bond was forfeited and a notice was duly served on the petitioner who despite it, did not appear in the Court intentionally. Further argued that the petitioner took different stances in different Courts. During the hearing of the appeal, he pleaded that he was never served upon with a notice nor he ever stood surety for the accused, which is against the record. In view of his divergent statements and stances in different Courts, he is not entitled to any leniency and the learned Courts below have rightly taken the decision against him.

5. I have heard the learned counsel for the respective parties at full length and have also given my anxious consideration to the facts of the case. and gone through the precedents.

6. I have pondered over the matter and find that the petitioner took different stances in support of his version in different Courts. He stated that he was not served with any noticed which is factually wrong. Perusal of the record makes it ample clear that notice was issued and duly served upon him personally. He initially avoided to appear to defend his case before the trial Court and the matter had to be decided in his absence. Before the District Magistrate while appearing, he stated that he never stood surety for Mst. Rasoolan accused nor he ever executed bail bond in favour of the State. In the revision petition, he frankly stated that he stood surety for the accused, but he did not produce her in the Court. So far as production of the accused in the Court is concerned, record speaks otherwise.

7. In view of the changing versions of the petitioner before the Courts below, it is clear that he has not approached the Court with clean hands. On factual plane, there is no substance in the contentions of the learned counsel for the petitioner. All the three Courts below rightly have come to the conclusions that he had stood surety for Mst. Rasoolan, but thereafter she absented herself and the petitioner failed to make herself available for the trial. The Courts below after, correctly appreciating the position of law rightly forfeited the bail bonds. I do not find any misreading of evidence therefore no exception can be taken to the forfeiture of the bail bonds and imposition of penalty on the petitioner.

8. Be that as it may, keeping in view the circumstances of the case, particularly that Mst. Rasoolan ultimately appeared before the Court and on presentation of an application by her under section 265-K, Cr.P.C. she was acquitted from the charge vide order, dated 30-11-1992, passed by learned Additional Sessions Judge, I am inclined to reduce the penalty from Rs.10,000 to Rs.3,000 on compassionate grounds. The petition is disposed of accordingly. H.B.T./N-339/L Order accordingly.