1985 P Cr (PLP)

Dildar and another v. The State P L D 1963 S C 47; Criminal Miscellaneous 1127 of 1977; 1975 P Cr. L J 954; 1983 P Cr. L J 1472; 1983 P Cr. L J 137 and 1980 P Cr. L J 426 ref. Habibullah Samo for Applicant. Rustam J.E. Kaikobad for Surety. Sattar Shaikh A.A.‑G. for the State. These are the proceedings against the surety under section 514, Cr. P. C. and it is stated that she was in collusion with accused who has jumped the bail. Bail was granted by this Court vide Order, dated 22‑4‑1982 in the sum of Rs.50,000 with one surety P.R. in the like amount. Surety Mrs. Khorshed Sidhwa filed surety bond for the accused to the satisfaction of Nazir of this Court. Subsequently application was filed by United Bank Complainants in the case for cancellation of bail on the ground that accused namely Rusi Patel has jumped the bail and gone away to India. Notice was issued to the surety to show cause why penalty should not be imposed upon her as contemplated under section 514, Cr.P.C. She has filed her affidavit. Complainant Bank has also filed affidavit and alleged that ‑there is a link between the surety and the accused and there was a business transaction in respect of property on Plot No. B‑6/22 Zaibunissa Street, Saddar, Karachi which was sold by Mst. Mani wife Rusi Patel. Mr. Rustom J. E. Kaikobad has stated that the plot in question was sold by Mst. Mani wife of Rusi Patel and Mst. Abban sister of Rusi Patel which was purchased by surety and four othere for consideration of Rs.1,60,00,000 way back in 1981. There was an agreement of sale which is, dated 13‑12‑1981 after which consideration was paid and the possession was taken over. Registration of Sale Deed which took place subsequently on 29‑8‑1983 was just a formality because every thing was done immediately after the execution of agreement of sale. In the property purchased share of the surety is one‑fifth. In any case in the said transaction Rusi Patel was not a party either directly or indirectly. On the other hand it appears from the record that originally two F.I.Rs. were lodged against accused Rusi Patel, one is F.I.R. No. 11/82 in which allegation was that Rs.8,00,000 were misappropriated, in the second F.I.R. which bears No.12 of 1982, the allegation is that Rs.1,61,948 were misappropriated. Both these F.I.Rs. were lodged on 18‑4‑1982. Mr. Rustom Kaikobad has submitted that transaction in question i.e. purchase of land by the surety had taken place earlier in point of time. Then after the registration of these F.I.Rs. subsequently Rs.8,00,000 were paid to the Account Holder and after that there remained only alleged misappropriation of the amount stated in second F.I.R. In these circumstances it can be said that the transaction with regard to the sale of land by wife and sister of accused with surety and four others does not show that accused Rusi Patel was a party in it or was directly or indirectly connected in it. This could be an innocent transaction. In any case Mr. Rustom I.E. Kaikobad states that acquaintance between the surety and the accused is admitted for the reason that both of them belong to a very small community of Parsis. He has further stated that Mrs. Sidhwa stood surety not for any monetary consideration but exclusively for the reason that accused belonged to the same community and she wanted to help on humanitarian grounds. The action of the surety was in sheer good faith and was not for any motive other than helping the accused, who is a member of the same community and was in trouble. It is further stated by Mr. Rustom J.E. Kaikobad that surety had no knowledge that accused would abscond or had absconded. On the other hand Mr. Habibullah Samo has stated that after the two F.I.Rs. mentioned above a third F.I.R. was filed on 4‑4‑1983 and accused had absconded which fact was published in the newspaper on 25th April, 1983. It is further submitted by him that accused had absconded alongwith his wife, who was subsequently represented by her Attorney in deal with regard to the sale of land mentioned above and additionally it can be said that the surety had knowledge of absconsion of accused for the reason that both belonged to a small community of Parsis. In any case after` issue of notice to the surety when she appeared in the Court she made a categorical statement that according to her information accused had jumped the bail and was outside the country. It appeared from her statement that she already had the knowledge of absconsion of accused but she did not bother to take steps to inform the Court that accused had jumped the bail. As surety it was her duty to see that accused was produced in the Court on every date of hearing and if anything had come to her knowledge that accused was to abscond she could have taken the steps by informing the Court She could have applied to the Court withdrawing her surety bond and she could have taken the steps to get hold of the accused and produced him in the Court. She did not do any of these things from which it clearly appears that at least she knew about the fact that accused had absconded and she remained quiet and did not take any further step. Mr. Rustom Kaikobad states that this was due to the fact that she is a lady and was ignorant of law. He has further stated that otherwise there is nothing on the record to show that she was in collusion with accused or had actively assisted in the act of absconsion accused. On the question of quantum of fine to be imposed Mr. Rustom has relied upon the decision in the case of Dildar and another v. The State P L D 1963 S C 47 and decision in unreported case by t3ivision Bench of this Court in Criminal Miscellaneous No.1127 of 1977. NJ". Rustom Kaikobad further submitted that various amounts of fine have been imposed in different cases which are always less than the amount of bail bond. He relied upon decisions reported in 1975 PCr.LJ 954, 1983 P Cr. L J 1472, and other decisions reported in same book at page 137 and 1980 P Cr. L J

426. Mr. Sattar Shaikh A.A.‑G. also made a submission with regard to imposition of lesser amount of penalty. The same mitigating circumstances were urged on behalf of surety which are to the effect that surety is a lady who is earning her livelihood by selling cooked meals and her husband is a retired Professor who is still working on private job. Having considered all the attending circumstances and the facts mentioned above I think it would meet the ends of justice if it is directed that surety is to pay Rs.20,000 as penalty. Order accordingly. Nazir is directed to retain Rs.20,000 in favour of Government as amount of penalty and refund Rs.30,000 back to the surety as I have been informed that surety has furnished security in the sum of Rs.50,

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