2013 PLP 872 (MLD)

NAIMATULLAH PHULPOTO, J.

Applicant/surety Sikandar Ali Gopang through this criminal revision application has challenged the order dated 6-5-2011 passed by the learned Additional Sessions Judge, Ratodero, in Sessions Case No.407 of 2010, re State v. Ghulam Sarwar Gopang and others, Crime No.93 of 2000 of Police Station Naudero, under sections 324, 337-A(i), 337-H(2), 148, 149, P.P.C. Concise facts leading to the filing of the instant criminal revision application are that applicant Sikandar Ali Gopang stood surety for accused Mushtaque Gopang. Bail was granted to the accused by the trial Court on furnishing surety in the sum of Rs.50,000 (Fifty thousand) and P.R bond in the like amount in Crime No. 93 of 2000 of Police Station Naudero, under sections 324, 337-A(i), 337-H(2), 148, 149, P.P.C. After grant of bail to accused, applicant stood surety, accused was released on bail and thereafter absconded away. Surety could not produce the accused. Notice under section 514, Cr.P.C was issued to the surety. Surety failed to produce the accused. Learned Additional Sessions Judge, Ratodero forfeited the entire bond of surety and imposed full fine amount of Rs.50,000 (Fifty thousand), with direction to deposit the same within one month and in case of default the same shall be recovered as arrears of land revenue. Above order of trial Court is impugned before this Court. At the very outset, learned counsel for the applicant/surety instead of arguing this revision application on merits requested for moderate reduction in the forfeiture amount of surety on the grounds that applicant had stood surety on humanitarian grounds and had gained no monetary benefit in this regard. Learned advocate for the applicant further submitted that all the possible efforts have been made by the surety to produce the accused. It is further submitted that surety is a poor person and has large family having no sufficient income source. Learned Counsel relied upon the case of Abdul Sattar v. The State, reported as 2010 YLR 1946. Mr. Naimatullah Bhurgri, learned State Counsel, recorded no objection if fine amount imposed upon surety by the trial Court is reduced to some reasonable extent. I have carefully heard the learned counsel for the parties and have gone through the impugned order. In my considered opinion, imposing whole fine upon the surety without any proof of mala fide or personal gain was not justified in this case. No doubt, there is no legal embargo that amount of bail bond in full cannot be forfeited, but still approach of the Court should be dynamic and progressive oriented while imposing the entire fine upon the surety. Nature of the offence, efforts made by the surety to produce the accused and financial position of surety may be taken into consideration while passing orders. In this case the learned counsel has contended that the surety has made all possible efforts to produce the accused. Balance should be kept between undue severity and undue leniency at the time of passing the order. 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 has not been demonstrated in the present case as to what inquiry if any has been made before the trial Court in assessing the surety's laxity/carelessness or otherwise in his efforts to produce the accused. Thus, keeping in view the above facts and circumstances, order of the trial Court dated 6-5-2011 is modified and fine of Rs.50,000 (Fifty thousand) is reduced to Rs.37,000 (Thirty-seven thousand). This criminal revision application is disposed of in above terms. The surety shall deposit Rs.37,000 (Thirty-seven thousand) before the trial Court within the period of one month, else the same shall be recovered by the trial Court in accordance with law. MWA/S-1/K Order accordingly.