2011 SCMR 929 (PLP)

This Appeal impugns the order of the learned Sindh High Court passed on 17-6-2008 in Criminal Revision Application No.22 of 2008, whereby the same was dismissed.

2. Briefly stated, the facts forming the background of the case are that the appellant stood surety in the sum of Rs. 100,000 each for four persons namely Akbar, Bagh Ali, Abdul Qadeer and Nisar Ilyas Amb, being accused in F.I.R. No. 44 of 2003 under sections 324,. 353, 148 and 149, P.P.C. and facing trial in Sessions Case No. 409 of 2002. It appears that during the trial, the accused persons absconded, as a result whereof, their bail was cancelled and their bail bonds were forfeited. The appellant being surety was served with a Show-Cause Notice under section 514, Cr.P.C. On 14-11-2005 an application for adjournment was moved on behalf of the appellant, and the trial Court while dismissing the same also imposed a fine to the extent of full amount of surety. As stated the Criminal Revision Application moved by the appellant was dismissed, hence the present appeal.

3. Mr. Akhlaq Ahmed Siddiqui learned Advocate-on-Record has submitted vis-a-vis limitation that the appellant being a patient of Hepatitis was unable to file the appeal in time for which an application has been moved for condonation of delay. On merits he has submitted that the appellant after hectic efforts was able to produce accused Akbar on 4-12-2007 before the learned trial Court who was thereafter remanded to District Jail Shikarpur. So also accused Nasir alias Amb was also joined in the trial as he had been arrested in another case. Learned Advocate-on-Record has further submitted that on 4-11-2005 when the order for imposition of a fine of the entire surety amount viz. Rs.4,00,000 was passed, the appellant/surety had submitted an application for adjournment in order to produce the accused but the same was dismissed. Per learned Advocate-on-Record this was a very harsh order and considering the facts and circumstances of the case some leniency should have been shown as the appellant tried his best to produce the accused before the trial Court but due to enmity they had shifted to some unknown place. He has prayed that the order of the learned trial Court as well as Learned High Court being too harsh vis-a-vis imposition of the fine amounting to entire surety amount, be varied and if at all a lesser fine be imposed. He has relied upon Dildar and another v. The State PLD (1963 SC 47) and Muhammad Ali and others v. The State (2007 SCMR 575).

4. On the other hand, Mr. Shahadat Awan, learned Prosecutor-General has submitted that the appellant does not deserve any leniency since after bail had been granted to the accused they totally absconded away from the learned trial Court whereafter notices were served upon the appellant under section 514, Cr.P.C. to which he failed to submit any reply. Finally on 14-11-2005 the learned trial Court passed the order imposing the fine which was justified in the circumstances of the case. According to learned Prosecutor-General, the fact that the appellant was able to produce one accused on 4-12-2007 and the other accused had been arrested in another case does not mitigate his liability to ensure the production of the accused on each and every date of hearing before the learned trial Court. He has relied upon Muhammad Aslam and another v. The State (PLD 2004 SC 211).

5. We have heard both the learned Advocate-on-Record and Prosecutor-General. Insofar as the Appeal being barred by time, an application for condonation of delay has been filed wherein the grounds taken are the appellant's illness during the period from 18-6-2008 to 23-9-2008 as he was a patient of hepatitis which is duly supported by a medical certificate. No objection/Counter-affidavit has been filed by the State to such application and hence in the facts and circumstances of the case, we would allow the same and condone the delay.

6. Insofar as, the merits of the case are concerned, it would be seen that imposition of fine upon sureties are to be regulated keeping in view the facts and circumstances of each case. Where the surety has made genuine efforts to produce the accused before the trial Court but could only do so after some time then a lenient view was to be taken. However, where he has failed in totality then the Courts have to be strict insofar as, imposition of fine is concerned. In the case of Dildar and others v. The State (Supra), it has been held inter alia that the efforts made by the surety to produce the accused should be inquired in to as they are not the custodians of the accused and in the absence of proof to the contrary, it may generally be assumed that they do not gain by standing surety. Therefore, in dealing with the cases of sureties who are in default, a balance has to be held between undue leniency,, which might lead to abuse of the procedure and interference with the course of justice in a larger 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 has not been demonstrated in the present case as to what inquiry if any has been made before the trial Court in assessing the appellant's laxity/ carelessness or otherwise in his efforts to produce the accused. Hence, we can only come to the conclusion that perhaps he did make the efforts but failed as the accused had absconded away and shifted to some unknown place. At least the appellant was able to produce one accused whereas another accused was arrested in some other case. However, he has totally failed to produce two accused for which he stood surety. Consequently, in the case of accused Akbar whom the appellant produced, we would reduce the fine of Rs. 25,000 and in the case of accused Nasir, who was arrested in another case, the fine is reduced to Rs. 75,

000. We maintain the fine of Rs. 1,00,000 each in the case of the other two accused whom the appellant has failed to produce at all before the learned trial Court. This appeal is disposed of in the aforementioned terms. N.H.Q./A-2/SC Order accordingly.