2010 PLP 1946 (YLR)

JAMAL KHAN MANDOKHAIL.--Concise facts of the prosecution case are that petitioner Abdul Sattar son of Abdul Ghafoor stood surety for accused Noor Ali, involved in case crime No.28 of 2009, under Sections 109, 471, 420, 406 read with section 34 PP. He was granted bail in the sum of Rs.2,00,000- by Judicial Magistrate-V, Quetta. The petitioner stood guarantor for accused and has deposited surety in cash. Accused jumped off bail and the petitioner being guarantor, has failed to produce him before the trial Court, consequently, out of the surety amount deposited by him, an amount of Rs.1,50,000 was forfeited, by trial Court, vide order dated 12-2-2010, which was challenged before Additional Sessions Judge-VI, Quetta, who dismissed the petition vide order dated 19-4-2010, hence this petition. At the very outset, learned counsel for petitioner requested for moderate reduction in the forfeiture amount of surety on the grounds; i) that the petitioner stood surety purely on humanitarian grounds and had gained no monetary benefit in this regard and, ii) the petitioner is poor person and have large family having no source of income. Learned State counsel has strongly opposed the moderate reduction in the forfeiture amount and stated that lenient view has already been taken by the trial Court. I have heard learned counsel for the parties and have gone through the impugned orders. It is a fact that petitioner stood surety for accused to ensure his attendance before the Court. The trial Court has forfeited the above-mentioned surety of the petitioner, on account of non-appearance of accused on the date fixed and also on failure of petitioner to subsequently produce him before the Court. It is important to mention here that when the bond is for appearance of accused before a Court, but he fails to appear, then such bond has to be forfeited, and the Court shall record the grounds of such proof, and may call upon any person bound by such bond by issuing notice to the surety as envisaged under section 514 Cr.P.C. to pay the penalty thereof, or to show cause why it should not be paid. In case sufficient cause is not shown and the penalty is not paid, then the Court may proceed to recover the amount of fine by issuing a warrant for the attachment and sale of the property belonging to such person, Thus, for non-compliance of bound, surety of the guarantor has to be forfeited and then fine has to be imposed upon him, keeping in view the facts and circumstances of the case. For passing such order, first step to be taken by Court is to satisfy itself that accused has violated terms and conditions of bond and for its forfeiture reasons should be recorded. Standing of surety for some one is an act of benevolence, therefore, unless and until it is established that the surety has got the accused released on bail for any ulterior motive or for monetary gain, he is not to be treated harshly and not to be punished severely, without there being extraordinary circumstances calling for full forfeiture of the surety bond. In present case, the trial Court has not assigned cogent reasons as has been mentioned in sub-clause (11) and (2) of section 514, Cr.P.C. It is also not come on record to show that the surety submitted by the applicant was for any personal gain; rather it seems that the same was out of benevolence and humanitarian considera tion. The Trial Court while forfeiting the amount of Rs.1,50,000 out of Rs.2,00,000 shown undue severity. The Trial Court should have made investigation for arriving at a just conclusion with respect to a quantum of fine, but has failed to do so. In my considered opinion, imposing severe fine upon petitioner, without any proof of mala fide or personal gain on his behalf is unjust. Though there is no legal embargo that amount of bail in full cannot be forfeited, but still approach of the Courts should be dynamic and progressive oriented while imposing fine upon guarantor, because the purpose is only to apprise him of his misdeed. Hence, balance should be kept between undue severity and undue leniency at the time of passing order of fine. Thus, keeping in view the above facts and circumstances, I am inclined to reduce the amount of fine of Rs.1,50,000 imposed by the trial Court to that of Rs.80,

000. The trial Court after deducting the said amount to return the remaining amount i.e. Rs.1,20,000 to the applicant, accordingly. This disposes of Criminal Miscellaneous Quashment No. 21 of 2010. H.B.T./73/Q Order accordingly.