2006 PLP 12 (YLR)

MUHAMMAD NAWAZ BHATTI, J.

Through this writ petition the petitioner Muhammad Ismail has challenged the vires of order dated 13-11-2003 passed by learned Additional Sessions Judge, Dera Ghazi Khan whereby he partly accepted the revision filed by the petitioner against the order dated 7-4-2003 passed by the learned Magistrate Section 30, Dera Ghazi Khan and general warrants for attachment and sale of property were issued.

2. Briefly stated the facts of the case are that petitioner Muhammad Ismail stood surety worth Rs.60,000 for Muhammad Ashgar, who was involved in case F.I.R. No.267 of 2001 under sections 334/337-L(ii)/337-D/34, P.P.C. registered at Police Station Kala District D.G. Khan. During the trial Muhammad Asghar disappeared from the trial Court and was ultimately declared proclaimed offender. The learned trial Court initiated proceedings under section 514, Cr.P.C. against the petitioner! surety and vide order dated 7-4-2003 while forfeiting the entire amount of Rs.60,000 directed the petitioner to pay the amount of penalty on 21-4-2003. On 21-4-2003 the learned trial Court directed that since the petitioner had failed to deposit the forfeited amount warrants of attachment of movable property of petitioner be issued. Being aggrieved the petitioner filed revision petition which was accepted to the extent that penalty was reduced from Rs.60,000 to Rs.30,000 vide order dated 13-11-2003 passed by the learned Additional Sessions Judge, D.G. Khan. Hence, this petition.

3. Learned counsel for the petitioner submits that under the provisions of section 514(2), Cr.P.C. penalty can be recovered by issuing warrants for attachment of movable property and sale of the movable property belonging to surety or his estate if he be dead and immovable property cannot be attached or sold and the learned Judicial Magistrate issued general warrants for attachment and sale of property of petitioner/surety which is not only illegal but it also invalidates the warrant so issued and the impugned order is not sustainable under the law; that the learned Additional Sessions Judge had not adverted to the illegalities committed in the procedure by the learned Judicial Magistrate. Further contends that the impugned order is arbitrary, capricious and perverse which has caused miscarriage of justice and is labile to be set aside. He has relied on "Lal v. The State" (1990 PCr.LJ 1371).

4. On the other hand learned A.A.-G. has opposed the instant petition.

5. I have heard learned counsel for the parties and carefully perused the record available on the file. The petitioner was bound to get the attendance of the accused Muhammad Asghar in the Court on each and every date of hearing. However, facts of the case show that Muhammad Asghar has been acquitted by the learned trial Court. It also appears that petitioner stood surety only on humanitarian ground and not for any monetary benefit. Following the dictum laid down in "Muhammad Khan v. The State" (1986 PCr.LJ 1028), I am constrained to observe that balance should have been kept between undue leniency and undue severity by taking into consideration the financial status of the petitioner as well as facts of the case.

6. For what has been discussed above, it is held that impugned order dated 7-4-2003 passed by learned Magistrate Section 30, D.G. Khan and that of the learned Additional Sessions Judge, D.G. Khan dated 13-11-2003 do not call for any interference and same are maintained and writ petition is dismissed. However keeping in view the peculiar circumstances of the case the amount of penalty is reduced from Rs.30,000 to Rs.10,000 in the interest of justice. H.B.T./M-1373/L Petition dismissed.