2014 PLP 1806 (MLD)

LAL JAN KHATTAK, J.

This criminal revision petition is directed against the order dated 11-6-2013 of the learned Sessions Judge, Hangu, whereby order dated 27-5-2013 of the learned Judicial Magistrate, Hangu, is maintained.

2. Brief facts of the case are that the petitioners had stood sureties for accused Sher Janan in case F.I.R. No.277 dated 6-5-2010 registered under section 302/34 P.P.C. at Police Staton Hangu. On commencement of the trial, the accused did not appear before the trial court when summoned. Resultantly the court issued process against the petitioners for producing the accused before it. Pursuant to notice issued under section 514, Cr.P.C. both the petitioners appeared before the court and filed their reply to the show cause notice, wherein they expressed their inability to produce the accused as he had been at Qatar in connection with his livelihood. Not-satisfied with such reply the learned trial court proceeded against the petitioners vide order dated 27-5-2013 and fined them to pay Rs.1,00,000 each as penalty of the bond, which they had executed and submitted in the court. This order was impugned in appeal but that too was dismissed on 11-6-2013 by the learned Sessions Judge, Hangu, hence the instant criminal revision.

3. Arguments heard and record gone through.

4. Perusal of the case record would reveal that on appearance before the court, petitioners took the plea that as the accused had left for Qatar to earn his livelihood, therefore, they are handicapped to produce him before the court. Instead of taking into account the aforesaid plea of the petitioners and giving them some reasonable time to produce the accused, the learned trial court straightaway resorted to forfeit the bail bond executed by the petitioners and ordered them to pay the whole surety amount. This approach and conclusion of the learned trial court was not legal and rational. In this particular case, non-appearance or non-production of the accused was beyond his control as well as of the petitioners, keeping in view the various restrictions which are imposed by the foreign masters on overseas Pakistanis working abroad. The orders passed by the two courts below are not based on objective interpretation of section-514 of Criminal Procedure Code, 1898 and appreciation of case record as well.

5. An other important aspect of the case is that even after passing of the impugned orders, the petitioners had kept on their efforts to produce the accused before the court and ultimately they succeeded in their efforts to produce him before the trial court. Today when the case come up for hearing, accused Sher Janan appeared before this court and stated that after his release on bail he had left for Qatar to earn his livelihood. He stated that though he was contacted by his sureties and had apprised him of commencement of the trial but as his passport had been retained by his foreign employer, who was not handing the same over to him despite of his demand, therefore, in such like situation it was out of his control to return the country within the time specified by the trial court. He also submitted that after his return to Pakistan he has surrendered himself before the learned trial court and is on pre-arrest bail.

6. Object and purpose for issuing notices to sureties is that the accused be made available before the trial court so that he be brought to justice. When the accused himself appears before the court or is so produced by his sureties albeit after the expiry of specified time, then in such like situation order of forfeiture of the bond amount would not be proper. In the instant case, the accused had not absconded from the court intentionally or with any mala fide intention but for his livelihood. He had left Pakistan for Qatar for work and might have remitted foreign exchange for the country, therefore, he should not have been treated like those who intentionally go into hiding in order to avoid the legal proceedings initiated against them. There should have been a difference between the two types of accused. Those who purposely avoid to appear before the courts should be dealt with strictly in accordance with law on the subject but those who are handicapped by some compelling reasons should be treated objectively and with some leniency.

7. For what has been discussed above, I accept the instant criminal revision petition and set aside both the orders impugned herein and direct that the penalty amount so recovered from the petitioners be returned to them by the concerned. HBT/233/P Petition accepted.