1991 P Cr (PLP)

Dildar and another v. The State P L D 1963 SC 47 ref. Fazlur Rehman Awan for Applicant. Zaheer Ahmed Qureshi for the State. Date of hearing: 3rd June, 1991. This Criminal Revision has been filed against order dated 24-3-1991 passed by the 1st Additional Sessions Judge Karachi South in Criminal Appeal No.5 of 1989, whereby the learned Judge has ordered the applicant to pay Rs.30,000 within fifteen days failing which the legal steps will be taken against him to recover the surety amount. The facts are that the applicant had stood surety for accused Imam Bux who was facing trial under Article 3/4, Prohibition Order, 1979, in the sum of Rs.30,

000. After release on bail the said accused failed to attend the Court without intimation with the result that his bail bonds were forfeited and notice was issued to the applicant. The applicant according to the order of the learned Additional Sessions Judge did not appear in Court in spite of repeated notices issued to him. The applicant appeared before the Court on 27-11-1990 and informed the Court that the accused Imam Bux was in Jail in some other case and also stated that he did not want to continue as surety for the accused any longer and requested for release of surety documents. He also filed affidavit in support of his application. It has been noted that the learned Additional Sessions Judge has not observed anywhere in the order that the applicant was served with the notice for any date prior to 27-11-1990. All that has been stated by the learned Judge is that in spite of the notices issued to the applicant he did not put in appearance: The applicant has placed a copy of judgment dated 12-3-1991 in Criminal Appeal No.5 of 1989 whereby the appeal filed by Imam Bux was dismissed and the sentence awarded by the trial Court has been maintained. Under these circumstances I do riot find any justification for penalising the applicant to the full extent of surety amount. Mr. Fazlur Rehman Awan has referred the case of Dildar and another v. The State reported in P L D 1963 SC 47 wherein it has been observed that in dealing with the cases of surety who are not in default, the balance is to be held between undue leniency, which might lead to abuse of the procedure and interference with Court of justice in a large number of cases, and on the other hand, undue severity, which might lead to unwillingness on the part of neighbours and friends to come forward and give bail for persons under accusation. It was also observed that while assessing as to what extent the bond should be forfeited, regard should be had to the fact whether the surety has any direct interest through financial or blood connection with the accused or whether the surety had connived at or procure the absence of the accused and whether he has done his best to secure attendance of the accused. In the instant case the applicant stood surety for humanitarian consideration. No enquiry has been made by the learned Additional Sessions Judge, and it is also not clear from the record whether any notice with regard to absence of the accused from the Court was served on the surety for a date prior to 27-11-1990. Under these circumstances, forfeiture of the surety amount to the extent of one-fifth of the surety amount is ordered. The bond of the applicant is forfeited to the extent of Rs.6,

000. M.A.K./K-259/K Order accordingly.