1990 PLP 1129 (SCMR)

ABDUL QADEER CHAUDHRY, J.‑‑‑The petitioners stood surety for Muhammad Yaqoob accused who was facing trial under section 302 P.P.C. read with section 34 of P.P.C. in the Court of Additional Sessions Judge, Gujrat. Muhammad Yaqoob was admitted to interim bail in the sum of Rs.1,00,000 with two sureties in the like amount. Muhammad Yaqoob was not present in the Court on 29‑8‑1988 when on the request of his counsel, the case was adjourned to 30‑8‑1988. On this date (30‑8‑1988) his bail was cancelled and his bail bond was forfeited. A show‑cause notice was issued to the petitioners as to why they should not pay the amount of surety bond. The petitioners produced a letter before the trial Court issued by one Major Mansoor lqbal certifying that the accused had been posted in Sindh. The learned trial Judge by order dated 14‑3‑1989 imposed penalty on both the petitioners to the extent of Rs.25,000 each i.e., 1/4th of the amount of surety bond. The petitioners went in revision before the Lahore High Court against the said order. The learned Judge in Chambers reduced the amount of penalty from Rs.25,000 to Rs.8,000.

2. The petitioners being aggrieved have challenged the order of the High Court in this petition. Leave to appeal was granted. Notice was issued to the Advocate‑General.

3. We have heard the learned counsel for the parties. The learned High Court while reducing the amount of penalty has observed in paras 5 and 6 of the judgment as hereunder:‑‑ "Learned counsel does not challenge the impugned order on merits. He concedes that it does not suffer from any illegality whatsoever but says that since the petitioners have not contributed or connived at the disappearance of the accused, therefore, they deserve to be dealt with leniently. In this regard he has relied on Dildar v. The State P L D 1963 SC

47. Learned State counsel supports the impugned order. I have carefully considered the facts and circumstances of the case in the light of the arguments addressed by the parties. It is established that Yaqoob accused is Army personnel, who being member of Special Services Group, has been called by the Army to perform classified duty. He has not gone underground to avoid to face the trial. It, however, goes without saying that the petitioners have not fulfilled the condition of the bonds executed by them by having not produced the accused in Court concerned on the dates fixed for his appearance. They have, of course, derived no monetary gain for becoming a surety for the accused. In the circumstances I find that the petitioners deserve lenient treatment. Consequently, I reduce the amount of penalty imposed by the lower Court from Rs.25,000 to Rs.8,000 each. The Revision Petition is decided in the terms indicated above."

4. The penalty was imposed on the ground that the petitioners had not fulfilled the condition of the bond executed by them.

5. The admitted position is that the accused was serving in the Army and he was performing his duty in the national interest being a member of the Special Services Group. He was not allowed to leave such duty. Even according to the learned Judge of the High Court, the accused could not appear in the Court, because of his having been called by the Army to perform the classified duty. While reducing the amount of penalty, the learned Judge in the High Court has considered the facts and circumstances of the case. There are sufficient grounds for non‑appearance of the accused. The accused was serving in Army and he was deputed to perform operational duty. It was beyond the control of the sureties to produce the accused in the Court on the due dates. By the letter dated 25‑9‑1989 the Officer Commanding, Major Mansoor Iqbal, informed the learned Additional Sessions Judge, that the accused had been called back from operational duty and was available for handing over to the police. By letter dated 4‑11‑1989, it was again informed by the aforesaid Officer Commanding that the accused was being handed over to ASI Shanaz Ahmed of Mandi Bahauddin Police Station.

6. All these facts would indicate that the accused had not absconded. The accused failed to appear in the Court due to the reason that he was not released by the Army being on duty in national interest. Therefore, the sureties could not be held liable for the absence of the accused and the bonds executed by them are not liable to forfeiture.

7. For the reasons stated above, this petition is converted into an appeal and is accepted. The order of the learned Additional Sessions Judge dated 14‑3‑1989 and that of the learned High Court dated 14‑10‑1989 are set aside. N.H.Q./M‑1273/S Petition accepted.