1999 PLP 1932 (YLR)

'The brief facts of the case are that accused, Muhammad Ishfaq, was facing trial for offence under section 5 of the Islamic Penal Laws Act, before the District Criminal Court, Bhimber, in case entitled State v. Muhammad Ishfaq. He was released on bail by the trial Court on 23-12-1996 on furnishing the bail bond in sum of Rs.5 lacs with two sureties, who, in case of default undertook to pay the amount severally and jointly. The petitioners Muhammad Ashraf, and one Nisar Ahmad, stood surety for the accused. During the pendency of the trial the accused, Muhammad Ishfaq absented himself and consequently the sureties were issued notices as to why the forfeited amount should not be recovered. The accused was again arrested and produced before the trial Court on 22-8-1998. Notice for realization of the forfeited amount was issued, consequently the petitioner No. l appeared before the trial Court who filed his written objections and contended that he tried his best to find out the accused but he is not available as soon as the accused becomes available he will arrange his presence in the Court. In alternative he submitted that he is ready to pay reasonable penalty. The trial Court ordered to deposit Rs.1,00,000 as penalty and a warrant of attachment of movable and immovable property was also issued in respect of the other surety named Nisar Ahmed. An Opportunity was granted to the petitioner to deposit the forfeited amount of penalty. The order, dated 24th of July, 1998 is subject matter of revision before this Court. The petitioner contended that the trial Court did not grant any opportunity to find out the accused rather the trial Court in a hurried manner passed the impugned order. Petitioner No.2 Nisar Ahmed, was out of the country and as soon as he came to know about the absence of the accused he came back home and handed over the accused to the police. The accused is also appearing before the Court regularly. The petitioners further submitted that they are poor persons and the accused has also been arrested, thus, the order of the trial Court may be set aside. Ch. Muhammad Saddique the learned counsel for the petitioner argued that trial Court acted in a hasty manner and did not provide an opportunity to the petitioners to find out the accused. He further contended that accused was brought before Court by the petitioners, thus, special concessions may be granted to them. In support of his contention he relied upon the following authorities: (i) PLD 1963 Supreme Court page 47. (ii) 1996 Pakistan Criminal Law Journal page 1028. In reply Mr. M. Mushtaq Ch., Additional Advocate-General argued that the accused absented himself on 9-6-1998 and appeared' before Court on 24-7-1998, thus, the trial Court has very rightly passed the impugned order which may be maintained. In the light of the arguments advanced at the bar, I have carefully examined the record. In such-like cases overall circumstances are to be kept in mind as to what extent the forfeited penalty should be realized from a surety. In this respect we seek guidance from two cases of our own Supreme Court. In case reported as Muhammad Asghar and others v. Muhammad Shafiq (1995 SCR 141), after discussing numerous authorities of Supreme Court of Pakistan and (AJ&K), it was held that according to the circumstances of each case the matter of forfeiture should be decided. In this case the accused was still absconding and instead of whole amount of Rs.2,00,000, Rs.l.60,000 was ordered to be deposited in the Government treasury. In another case reported as Sufi Muhammad Shafi Baig v. Robakar-e-Adalat, (1995 PCr. LJ 399 SC AJ&K), the forfeited amount was reduced from Rs.3,00,000 to Rs.2,00,

000. Supreme Court declined to interfere with the order of the Shariat Court. So far as the instant case is concerned it stands on different footings. It is admitted between the parties that the accused Muhammad Ishfaq made himself absented on 9-6-1998 who appeared before the Court on 28-8-1998 and he is no more absconder or, fugitive of law. The manner in which the petitioners were dealt by the trial Court is also of a significant nature. The trial Court did not grant an opportunity of hearing to the petitioner No.1 and on the date of his filing of the objections passed the impugned order in a hasty manner. The trial Court also recorded that the petitioner Muhammad Ashfaq had made an offer to deposit Rs.1.00,000 and again at the request of the petitioner No. l an opportunity was granted to deposit the same till 22nd of August, 1998. The trial Court did not follow the dictum of the superior Courts because when the impugned order was passed the accused was an absconder. But now the situation has totally changed and on 22-8-1998 the accused was produced before the Court. Therefore, it is a fit case where the efforts of the sureties must be considered and a lenient view should be taken. .As far as the authorities cited by the learned counsel for the petitioner are concerned, do not render any help to the petitioners. A case reported as Dildar and another v. The State (PLD 1963 SC 47) has not been followed in case reported as Muhammad Rasheed v. The State (1990 SCMR 227), where the High Court had reduced the amount of penalty from Rs.50,000 to 40,000 and Supreme Court declined to give more concession to the appellant. The abovementioned authorities were also discussed by our own Supreme Court and were not relied upon. The principle enunciated in case reported as Jahangir Khan v. The State (1996 PCr.LJ 1028), cannot be followed in the light of the dictum of the apex Court of AJ&K as discussed above. As already stated above when the impugned order was passed the accused was an absconder, but now the situation has totally changed and on 22-8-1998 the accused was produced before the Court who is regularly appearing before the trial Court. Therefore, special concession may be made in I favour of petitioners. Considering the overall facts and circumstances of the case it would serve the ends of justice if instead of Rs.1,00,000 the penalty may be reduced to Rs.25,000 per head and warrant of attachment may be withdrawn. In view of the aforesaid observations, while accepting the revision petition, the order of the trial Court is modified to the extent that both the petitioners shall deposit Rs.25,000 each as penalty of forfeited amount within 15 days of the order. If the needful is done the warrant of attachment, already issued shall be with drawan forthwith. H.B.T./64/Sh.C.(AJ&K) Order accordingly.