2005 PLP 541 (YLR)

Muhammad Sharif Chaudhary, D.A.‑G. for the State (on pre‑admission notice). Shortly narrated the facts are that accused Allah Noor son of Saddey Khan, Caste Mehsood, resident of Kaniguram, Tehsil Ladha, South Waziristan Agency was arrested in case F.I.R. No.442 dated 2‑10‑2001 registered at Police Station, Tank under section 382, P.P.C. The petitioners furnished surety bond in a sum of Rupees fifty thousands each and consequently, he was released on bail. During the trial of the case, accused Allah Noor absconded and failed to appear before the trial Court i.e. learned Judge, Anti Terrorism Court, D.I. Khan. The learned Judge, Anti‑Terrorism Court, D.1. Khan vide his order dated 7‑10‑2002 observed that:‑‑ "and hence the Court is left with no other alternative except to confiscate the surety bonds of both the sureties and for this purpose the file shall be sent to the Senior Civil Judge/Judicial Magistrate, Tank for effecting the recovery of the amounts secured in the surety bond as early as possible."

2. On receipt of the file, learned Senior Civil Judge/Judicial Magistrate, Tank issued notice under section 514, Cr.P.C. as to why the amount of bail bond should not be recovered from them. They submitted their reply and expressed their inability to produce the accused before Court. Resultantly, keeping in view the facts and circumstances of the case, the surety amount was reduced from Rupees fifty thousands each to Rupees twenty five thousands each. The petitioners were directed to deposit the amount within one month.

3. Feeling aggrieved, petitioners filed appeal in the Court of learned Sessions Judge, Tank. The learned Sessions Judge, Tank vide his order dated 13‑12‑2003 accepted the appeal, set aside the order dated 25‑6‑2003 of Senior Civil Judge/Judicial Magistrate, Tank and remanded the case back with the directions to proceed with the matter strictly in accordance with the directions of learned Judge, Anti‑Terrorism Court, D.I. Khan. Hence, this revision petition under section 439, Cr.P.C.

4. Syed Afeef Abbas Bukhari, Advocate for the petitioners maintained that the learned Appellate Court has wrongly held that the matter was sent to Senior Civil Judge only for recovery of the forfeited amount because there is no indication in the order of learned Judge Anti‑Terrorism Court, D.I. Khan that bail bonds furnished by the sureties were forfeited; that the impugned order regarding imposition of penalty is harsh and the financial condition of the petitioners has not been taken into consideration while imposing penalty; that imposition of penalty was improper, unjust and unreasonable and that no inquiry was made to ascertain if the petitioners had any direct interest with the accused or that absconsion of the accused was with their connivance.

5. Mr. Muhammad Sharif Chaudhary, learned Deputy Advocate‑General for the State, on the other hand, on the strength of case‑law reported as Zeshan Kazmi v. The State PLD 1997 SC 267 and Faqir Khan v. Muhammad Safeer and the State 1999 PCr.LJ 1172 opposed the petition and contended that the learned Court below has already taken a lenient view in the matter and the impugned order is not open to exception.

6. Having heard the submissions of learned counsel for the parties in the light of the material on file, I find that it is specifically mentioned in the order dated 7‑10‑2002 of learned Judge, Anti‑Terrorism Court, D.I. Khan that Court has no other alternative except to confiscate the surety bonds of the sureties and that for this purpose, the file shall be sent to Senior Civil Judge/Judicial Magistrate, Tank for effecting the recovery of the amounts secured in the surety bond. Even otherwise, for whatever reason the petitioners had become surety, they were under legal obligation to discharge their liability under the bail bond furnished by them. After undertaking the liability themselves, it does not lie in their mouth to say that on account of their financial condition, they cannot pay the amount of bond executed by them and stood surety of the accused out of benevolence and without any monetary gain. There is no legal embargo that the amount of bail bond in full cannot be forfeited. In a case where an accused person jumps bail bond, the entire surety amount becomes liable to confiscation. The surety is liable to produce the accused in Court in view of his undertaking. The impugned order is correct, proper and legal and does not warrant interference of this Court in its revisional jurisdiction.

7. The revision petition fails which is hereby dismissed in limine along with listed Cr. Miscellaneous No.59 of 2004. H.B.T./281/P Revision dismissed.