2009 P Cr (PLP)

GHULAM DASTAGIR A. SHAHANI, J.

This criminal revision application is directed against the orders dated 10-11-2007 and 31-1-2008 passed by Special Court F.I.A./II-Judicial Magistrate and Civil Judge Malir, Karachi in a Criminal Case No.571 of 2007, as well as order, dated 12-4-2008 passed by learned Sessions Judge, Malir, Karachi, in a Criminal Appeal No.5 of 2008, imposing the penalty of Rs.50,000 against the applicant/surety namely Safdar Nawaz Khan Niazi, due to the absconscion of the accused namely Muhammad Yaqoob, who was facing trial before II-Judicial Magistrate/Civil Judge, Malir, Karachi, in Criminal Case No.571 of 2007 in Crime No.75 of 2005 Police Station F.I.A., under section 3(1), 4, Ordinance (LXI) (e)(g) of Passports Act(sic). Facts of the case in brief are that F.I.R. was registered with F.I.A. Police Station against Muhammad Yaqoob and others on 14-4-2005. During trial accused Muhammad Yaqoob was admitted to bail and present applicant stood surety and executed surety bond for the sum of Rs.1,00,000 on 13-12-2006. However, accused Muhammad Yaqoob jumped the bail, as such surety bond was forfeited, so also notice under section 514, Cr.P.C. to the surety/applicant was ordered. As per record accused Muhammad Yaqoob was released on bail on submission of Registration Book of motorcar as surety. On service of notice, applicant/surety appeared before the trial Court and stated that he stood surety of accused Muhammad Yaqoob on a humanitarian ground and not for monetary gain and further that accused is not involved in a heinous crime and prayed for vacating of the order. Application, so also appeal (both) were dismissed. Hence present revision application. Heard Mr. Rab Nawaz Khan Niazi learned counsel for the applicant/surety, who mostly repeated the facts as disclosed by him in a memo. of revision application. On the other hand Mr. Asadullah Baloch learned State Counsel states that trial Court has already taken the lenient view and penalty amount has been reduced from Rs.1,00,000 to Rs.50,000 and whereabouts of the accused are not known, though surety was bound to produce him, as he stood surety, as purpose of surety is to hand over the custody. He further states that no illegality or any mala fide is pointed out and there are concurrent findings of two courts below and lastly prayed for dismissal of the present revision application. Heard learned counsel for the applicant, as well as learned State Counsel and perused the material available on record. As per record, the applicant/surety stood surety for an amount of Rs.1,00,000 for accused namely Muhammad Yaqoob, who jumped the concession of bail and his whereabouts are not known to anyone, though applicant/ surety was bound to produce him, as custody was transferred to him, and it was voluntary act of the surety/applicant having offered himself as surety of the accused and the responsibility of the surety cannot be minimized under any circumstances and surety must know the consequences of absconscion of the accused before offering himself, as surety. Justice is not only be done to the, murderer or someone interested in him, but justice is also to be done to the complainant side and the person interested. The leniency could of course be shown to a party where it is due, but not at the cost of the justice require to be done in a given case where concession has already been extended. Learned counsel for the applicant/surety has not been able to point out any illegality or irregularity and mala fide on the part of two forums below, while passing the impugned orders. However, reliance is made to a case of Muhammad Safeer v. Faqir Khan and 2 others 2000 SCMR 312, Zeeshan Kazmi v. The State PLD 1997 SC 267 and Misri v. The State 1999 MLD 353 as well as order passed in a Criminal Miscellaneous Application No.28 of 2008 at Sukkur Bench respectively. In the case of Muhammad Safeer (supra) Honourable Supreme Court of Pakistan held that:

Abscondence of accused

Forfeiture of surety bond

Procedure

Forefeiture of surety bond had to be to the extent of the full amount of the bond

Reduction of amount of surety bond would not be in consonance with law. In case of Zeeshan Kazmi (supra), the Honourable Supreme Court held:

Bail Bond

Forfeiture of

Once an accused person jumps bail bond, the entire surety amount becomes liable to be forfeited in the absence of any mitigating circumstances-Courts in view of bleak scenario which has emerged, with the passage of time on account of the lack of respect of the rule of law, and because of the precedent continuous steep inflationary tendency resulting in the loss of money value, should not show any leniency while forfeiting bail bond amount

Approach of Courts should be dynamic and progressive-oriented with the desire to discourage the accused persons to jump bail bond. There has been overall deterioration in all spheres of life. The Crime rate has increased manifolds. The criminal instinct/propensity has penetrated in all walks of life. Some of the personnel of the State functionaries/agencies which are entrusted with the duty to protect the life, property and honour of citizens, either themselves actively participate in the commission of the heinous crime or they provide protective umbrella to the criminals. Their credibility has been denuded to the extent that the victims of the crimes do not approach them for their help or protection which they are otherwise entitled to as a matter of right under the Constitution. It has now become common that the accused persons involved in heinous offence, if succeed in obtaining bail, jump the bail bonds. To check such tendency and to provide deterrent, special provisions have been enacted. and/or are being enacted in the special statutes prescribing the minimum amount of bail bond. Keeping in view the bleak scenario which has emerged, with the passage of time on account of the lack of respect of the rule of law, and because of the unprecedented continuous steep inflationary tendency resulting in the loss of money value, the Courts should not show any undue leniency while forfeiting bail bond amount. Their approach should be dynamic and progressive-oriented with the desire to discourage the accused persons to jump bail bonds. There is no legal requirement that full bail bond amount should not be forfeited, on the contrary, once an accused person jumps bail bonds, the entire surety amount becomes liable to be forfeited in the absence of any mitigating circumstances." In the light of aforesaid orders and circumstances of the case, I do not find any merit in this application, as such the same is hereby dismissed. However, surety/applicant is allowed thirty days time to deposit the penalty amount from the date of the passing of this order. AMR/S-74/K?????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.