1995 P Cr (PLP)

SARDAR SAID MUHAMMAD KHAN, CJ.

This appeal has been directed against the order of the Shariat Court, dated 29-4-1992, whereby the revision petition filed by the appellant, herein, was dismissed. Brief facts of the case are that accused, Bashirullah, was facing trial for offence under section 5 of the Islamic Penal Laws Act before the District Criminal Court, Mirpur, in case entitled State v. Bashirullah. He was released on bail by the trial Court on 7-4-1991 on furnishing the bail bond in the sum of rupees three lacs with two sureties who, in case of default undertook to pay the amount severally and jointly. The appellant, Muhammad Shafi, and one Muhammad Aslam, stood sureties for the accused. During the pendency of the trial the accused, Bashirullah, absconded and consequently the sureties were issued notices as to why the forfeited amount should not be recovered. The accused is still absconding and has not yet been arrested. On 23-11-1991, the appellant, Muhammad Shafi, appeared before the Court while other surety was stated to be out of Country. The appellant sought many adjournments, which were allowed to him. On 5-1-1992 the appellant did not appear before the Court. Consequently the trial Court passed the order whereby whole of amount was to be recovered from the appellant. Consequently a revision petition was preferred to the Shariat Court and it was argued that the other surety was also responsible to pay the amount and as such whole amount cannot be realised from the appellant, herein; and that in any case the whole of the amount should not be realised from the appellant as it is too excessive. The Shariat Court expressed the view that as sureties were responsible severally and jointly, the amount can be legally realised even from one of the sureties alone however, the Shariat Court reduced the forfeited amount from rupees three lacs to rupees two lacs. We have heard the learned counsel for the appellant. They have mainly stressed that the amount is excessive and further leniency may be shown to the appellant; and that the view taken by the Shariat Court that whole amount can be realised from the appellant, herein, is not legally correct. The learned counsel for the appellant cited following authorities in support of their contention: In case reported as Dildar v. The State P L D 1963 SC 47, the forfeited amount was reduced from Rs.5,000 to Rs.1,000 with the observations that the sureties acted mere out of benevolence and, thus, they should be shown leniency. " In case reported as Azizur Rahman v. The State 1975 P Cr. L J 58, the forfeited amount of Rs.2,000 was reduced to Rs.50 only on the ground that the surety made frantic efforts and as a result of his efforts the absconder-accused was arrested within three days. In Muhammad Khan v The State 1986 P Cr. L J 2028, placing reliance on P L D 1963 SC 47, referred to above, the forfeited amount of Rs.50,000 was reduced to Rs.5,000 on the ground that the surety had acted out of benevolence and the accused did not disappear due to his connivance. The learned Advocate-General placed reliance on a case reported as Muhammad Rashid v. The State 1990 S C M R 227, wherein Muhammad Afzal Zullah, J. (as he then was), now the Chief Justice of Pakistan, opined that as the sureties were responsible to pay forfeited amount severally and jointly, each of~ the sureties is individually responsible for the payment of forfeited amount independent of other surety. The learned Judge also held that as the High Court had reduced the amount from Rs.50,000 to Rs.40,000, there were no grounds to give further concession to the surety concerned. The learned Judge also declined to follow the principle laid down in P L D 1963 SC 47, referred to above. We have given due consideration to the arguments raised at the Bar. So far as the arguments that forfeited amount cannot be realised from one surety is concerned, that has no force because it is settled law that each of the sureties is bound to pay whole of the forfeited amount, irrespective of the other surety. So far as the question of further leniency is concerned, as has already 1 been stated, the Shariat Court has reduced the amount from rupees three lacs to rupees two lacs. After weighing overall circumstances of the case we are note persuaded to agree with the learned counsel for the appellant that the appellant deserves further indulgence. Hence the appeal is hereby dismissed. N.H.Q./52/SCA Appeal dismissed.