P L D 1952 Lahore 645 (PLP)

CORNELIUS, J.‑This is a petition by one Sardar Khan, who stood surety in a Sheikhupura Court for the appearance of one Azizah, a resident of the Frontier Province, and an accused person in a case under section 7 of the Essential Supplies (Temporary Powers) Act, 1946. Azizah absented himself on the 13th July 1950, and did not appear again until the 3rd November 1950. It is stated that he was duly tried and convicted and has by now served out his sentence. The learned Magistrate, however, proceeded against Sardar Khan under section 514, Criminal P. C. Sardar Khan himself is a resident of Rawalpindi, and was not present on the day when the accused absented himself. A notice was sent to him to show cause why the amount of his bond should not be forfeited, but this could not be served. Another notice was sent by registered post, and this was returned with the report that the addressee had refused to accept it. The report is dated the 19th September 1950. Thereafter, the learned Magistrate proceeded to make an order directing that the full amount of the bond, viz., Rs. 5,000 should be forfeited. This order is dated the 6th October 1950, and thereafter Sardar Khan applied to the Magistrate to remit a portion of the penalty, and made an oral statement in which he said that after furnishing the surety bond on the 7th June 1950, he had fallen ill with fever and had directed Azizah to appear in Court on the next date, viz., the 13th July 1950. Azizah had come to him thereafter and declared that he had appeared accordingly, and subsequently he came again and said he had been appear ing regularly. The surety himself was ill with fever during this period, thereafter, there were heavy floods and all communi cations between Rawalpindi and Sheikhupura were interrupted, so that the surety was prevented from doing anything in the matter. He never received any notice or any registered letter sent by the Court. The report that he had refused such a letter was false. Declaring that if he had known that the 6th October 1950, was the date fixed in the case, he would not only have appeared himself, but' would also have produced the accused person, the surety added that he had by his own efforts succeeded in procuring the attendance of the accused on the 3rd November 1950. The learned Magistrate declined to remit any part of the penalty and the surety then appealed to the District Magis trate, who reduced the penalty to Rs. 1,

000. Learned counsel for the petitioner points out that both the Courts. below have assumed that the surety refused the registered letter sent to him. Even if the mere word "refused" appearing on the enve lope be held to carry a presumption of accuracy as being an act performed in the official course of business, the surety's own statement on solemn affirmation was sufficient to rebut such a presumption, and in the absence of any further proof it must be held that there was justification in the surety's ill ness, the assurances he had been given by the accused person and the difficulties encountered during the period of the floods, for the default. In any case, the surety had purged his fault to a great extent by procuring the attendance of the accused, albeit after some delay. Consequently, there was ground for leniency in regard to the penalty. While the Courts act rightly in insisting that such sureties shall perform their duty in regard to the attendance of accused persons, it is desirable also that they should regulate the im position of penalty in cases of default from the point of view, not so much of assessing the "guilt" of the sureties in terms of money, but with the object of maintaining the system in its integrity. In other words, if leniency toward sureties became the general rule, the whole system of release of accused persons on bail might require to be re‑examined to ensure the proper progress of criminal cases. At the same time, it is obviously not necessary or desirable in the average case, that the Court should lean in the direction of severity, for this might lead to difficulties in production of sureties, having the effect of overcrowding the judicial lockups and other atten dant inconveniences. Thus, for example, if the attitude of the learned Magistrate in the present case became universal, i.e., that in a case of default, the full amount of the surety bond; however great it might be, should be forfeited, it is easy to foresee that the production of sureties might become difficult, if not impossible. The great majority of offences are bailable by law and this is advisedly so. The provision is necessary in the interests of justice, and also assists in the administration of justice, by ensuring the attendance of accused persons at no cost to the state, on the one hand, and on the other, by avoiding the great difficulty and expense of keeping all under‑trial accused persons in judicial lockups. From the latter point of view, sureties while being a convenience directly to accused persons, also render service to the state and the community. They are not custodians of the accused persons, and are usually not tainted with the accusation carried' by the latter and yet for reasons best known to themselves, they undertake a res ponsibility for the due performance by accused‑ persons of their obligations in relation to attending the proceedings ill their cases. It is generally safe to presume that sureties under take this responsibility without charge, and this aspect of their position also entitles then' to consideration where, as in the present case, there has been a default by the accused persons and the surety has made efforts with success to remedy it. Bearing all the circumstances of the present case in mind, I reduce the amount of the penalty to the sum of Rs.

250. A. H. Penalty reduced.