P L D 1994 Peshawar 153 (PLP)

M. Isa khan for the state. Date of hearing :18th January, 1994. This criminal revision has arisen out of the order of the learned District Magistrate, Kohat, dated 27‑9‑1993 whereby he had affirmed the order of the Magistrate Ist Class, Kohat, dated 14‑6‑1990 forfeiting the bond furnished by the petitioner as a surety for Umar Gul accused in case F.I.R. No.272 dated 25‑5‑1988 registered under section 324/34, P.P.C. at Police Station, Saddar, Kohat and imposed penalty of Rs.10,000 or in default of payment thereof to suffer six months' simple imprisonment.

2. The operative part of the order of the Magistrate 1st Class, Kohat, was to the effect that "the surety Yaseen Khan, petitioner, present in Court, is taken into custody. He will have to suffer six months' S.I. in default of payment of the amount of Rs.10,000 for which he had furnished the bail bond". 3: The learned counsel for the petitioner contends, and rightly so, that the learned Magistrate has not followed the procedure prescribed for proceedings under section 514, Cr.P.C. step by step and instead had illegally jumped to subsection (4) of section 514, Cr.P.C. According to the learned counsel, if the learned Magistrate, while passing the order, was satisfied that the accused for whom the surety has furnished bond has failed to appear in Court then first of all an order is to be passed forfeiting the amount of bond after recording grounds for such proof, and then may call upon the surety to pay the penalty thereof or to show cause why it should not be paid. The learned counsel went on to submit that if sufficient cause is not shown and the penalty is not paid, the Magistrate may proceed to recover the same by issuing a warrant for attachment and sale of the movable property belonging to such person or his estate if he be dead. Thereafter, according to the learned counsel, such warrant may be executed within the local limits of the jurisdiction of the Court which issued it or it shall authorise the attachment and sale of any movable property belonging to such person without such limits. After exhausting all these formalities, the learned counsel submits, if such penalty is not paid and cannot be recovered by such attachment and sale, the surety so bound shall be liable, by order of the Court which issued the warrant, to imprisonment in the civil jail for term which may extend to six months.

4. Mr. Issa Khan, learned counsel for the State, could, not controvert this statement of law. Nonetheless, he maintained that two courses are open to this Court: (i) either the case may be remanded to the Magistrate concerned for proceeding with it in accordance with law, or (ii) this Court may consider the sufficiency or otherwise of the amount of penalty imposed upon the petitioner.

5. The learned counsel appearing on behalf of the petitioner opted for the second course and placed reliance on the cases : (i) Dildar and another v. The State PLD 1963 SC 47, (ii) Allah Dad v. The State 1981 PCr.LJ 1184 and (iii) Haitam v. The State and others 1987 MLD 977 to show that a balance is to be kept between undue leniency and undue severity.

6. In the circumstances of the case when the accused, for whom the petitioner stood surety, has surrendered on the following day of the passing of the impugned order and the case has been compromised between the parties, the petitioner was entitled to some leniency in the matter of imposition of penalty. I would, therefore, reduce the penalty from Rs.10,000 to Rs.4,

000. With this modification, the instant criminal revision is dismissed accordingly. N.H.Q./1538/P ?????????????????????????????????????????????????????????????????????????????????? Penalty reduced.