2007 P Cr (PLP)

MUHAMMAD JEHANGIR ARSHAD, J.

Through this criminal revision, the petitioner has challenged the order, dated 15-12-2006 passed by learned Additional Sessions Judge Kehror Pakka imposing penalty of Rs.1,00,000 on the petitioner being surety in case F.I.R. No.181, dated 30-5-2003 under sections 364, 302, 109, 34, P.P.C. Police Station Saddar Kehror Pakka.

2. The facts in brief are that Ramzan who is an accused in the above mentioned case, was allowed bail by this Court subject to his furnishing bail bond in the sum of Rs.1,00,000 and petitioner stood surety for him. It so happened that said accused absented during the trial, resulting in forfeiture of his surety by the learned trial Court and issuance of notice under section 514, Cr.P.C. to the petitioner/surety. The petitioner filed reply to the said notice stating therein that said accused was absent when the case was called, however, after a few minutes he entered appearance before the trial Court on the same date i.e. 29-11-2006 but the learned trial Court sent him to jail after forfeiting the surety bonds, whereafter, the said accused was released on his furnishing fresh bail bond. However, not satisfied with the explanation offered by the petitioner, the learned trial Court through the impugned order, dated 15-12-2006 imposed full amount of penalty of Rs.1,00,000 on the petitioner. This order has now been challenged through this petition.

3. It is submitted by learned counsel for the petitioner that though the accused was absent on the call of the case but he himself appeared before the learned trial Court just after a few minutes on the same date and that the petitioner stood surety purely on humanitarian grounds and not for any financial benefit, therefore, the learned trial Court was not justified in passing the impugned order and in the alternate imposition of full penalty was not legally justified. Reliance has been placed on the case Allah Ditta v. The State 2005 PCr.LJ 1765.

4. On the other hand, learned Deputy Prosecutor-General has opposed this petition by arguing that as the petitioner by furnishing surety bond accepted his liability to pay the amount under the penalty in case of failure of the accused to appear before the trial Court during trial, therefore, the impugned order was legally and rightly passed.

5. I have considered the arguments of learned counsel for the parties and perused the record.

6. Petitioner's liability as surety is not denied. It is also not denied by the petitioner that the accused was absent when the case was called for hearing on 29-11-2006, therefore, to say that petitioner could not be burdened with penalty is not acceptable under the law. However, the question as to whether in the facts and circumstances of the case the. learned Additional Sessions Judge was justified in imposing the full amount of surety and recovering the same from the petitioner, needs consideration. There is no allegation against the petitioner that he was either instrumental in the abscondence of the accused namely Ramzan or that he stood surety for some financial gain; therefore, recovery of full amount of surety from the petitioner is not legally justified. Admittedly, Ramzan accused absented himself on 29-11-2006 when case was called out and he appeared on the same afterwards and was sent to jail. But it is also a fact that said accused has now been released from jail on acceptance of his fresh bail bonds. In these facts and circumstances of the case and respectfully following the law laid down in the cited judgment, I am inclined to partly allow this petition and reduce the amount of penalty from Rs.1,00,000 to Rs.10,000, which shall be deposited by the petitioner with the learned trial Court till 5-2-2007, failing which the learned trial Court shall be at liberty to proceed against the petitioner in accordance with law. H.B.T./A-22/L Order accordingly.