P L D 1997 Supreme Court 267 (PLP)

AJMAL MIAN, J.‑‑‑ The petitioner, who was at the relevant time acting as the S.H.O., Khokharapar Police Station, Karachi, was named as an accused for the murder of late Mir Murtaza Bhutto and seven members of his party besides causing injuries to a number of other persons, in F.I.R. No.443 of 1996 registered on 9‑11‑1996 at the Clifton Police Station, Karachi, pursuant to the judgment passed by a Division Bench of the High Court of Sindh in Constitution Petition No.D‑1720 of 1996. The petitioner inter alia approached the High Court of Sindh through Criminal Bail Application No. 1968 of 1996 for. bail before arrest. Originally the petitioner was admitted to interim bail but the same was not confirmed and the bail application was rejected by a detailed order dated 2‑12‑1996 of a learned Single Judge of the High Court of Sindh.

2. It appears that the petitioner could not be arrested before he approached this Court for interim bail on 4‑12‑1996 when one of us (Saleem Akhtar, J.) through a Chamber order dated 4‑12‑1996 admitted the petitioner to pre‑arrest bail till 7‑12‑1996 in the sum of Rs.2,00,000 with one surety and P.R. bond in the like amount to the satisfaction of the Assistant Registrar of the Supreme Court of Pakistan at Karachi. The above interim bail continued till the hearing of the above bail application before this Court. The petitioner's bail application was heard alongwith three co‑accused on 16‑12‑1996, when pre‑arrest bail of one of p the co‑accused Dr. Muhammad Shoaib Suddle was confirmed and two of the co accused, namely, Shahid Hayat Khan and Rai Muhammad Tahir were not confirmed. The petitioner's petition for leave to appeal and the, bail application were adjourned to 21‑12‑1996 as the learned counsel for the petitioner had relied upon certain alleged. Police Station diaries indicating petitioner's presence at New Karachi Police Station on the day of the incident. The original record of the same was summoned for examination and for further hearing of the petition and the bail application on 21‑12‑1996. However, on the above date the petitioner absconded. Consequently, the following order was passed:‑‑ "The petitioner is not present though search was made by :his learned counsel in the Court building. The petitioner has forfeited the concession of bail before arrest by remaining absent, the petition is, therefore, dismissed and interim bail is recalled."

3. After that Syed Baqir Hussain son of Syed Nasir Hussain was issued a show‑cause notice to explain on 8‑1‑1997 at 9‑00 a.m. as to why surety amount in the sum of Rs.2,00,000 furnished by him in this Court as a surety for the petitioner should not be forfeited.

4. In response to the above show‑cause notice, the surety appeared alongwith his counsel, Mr. Suleman Habibullah, on 8‑1‑1997 when the following order was passed:‑‑ "Surety Syed Baqar Hussain present with his counsel Mr. Suleman Ha'bibullah in response to show‑cause notice. Accused is absent. The surety bond is forfeited. The surety requested for time to produce the accused. Adjourned to 15‑1‑1997 for further order."

5. The matter again came up for hearing on 2‑2‑1997 when the surety was given further opportunity to produce the petitioner and the case was adjourned for 12‑2‑1997. ,On the latter date, Mr. Suleman Habibullah alongwith the surety appeared and stated their inability to produce the accused/petitioner. They wanted further time, but the above request was declined.

6. Mr. Suleman Habibullah, learned counsel for the surety, has vehemently contended that since the surety, Syed Baqar Hussain, is the father‑in law of the petitioner/accused and that as no monetary consideration was derived by the surety, the forfeiture of the entire surety amount is not warranted. In support of his above submission, he has referred to the judgment of this Court in the case of Dildar and another v. The State PLD 1963 SC 47, wherein at page 49 Cornelius, C.J. had made the following weighty observations as to the relevant factors for determining an amount to be forfeited out of a surety bond'. "Where, however, we find defect in the proceedings taken against the appellants is in this, namely, that no effort appears to have been made by the Courts below to enquire into the relevant matters affecting the decree of their responsibility. Sureties are not constituted as custodians of accused persons, and in the absence of proof to the contrary, it may generally be assumed that they do not gain by standing surety. The system of releasing accused persons on bail has several aspects of importance to the administration of justice generally. It avoids anything in the nature of punishment in advance, since restraint upon liberty even when applied for the purpose of ensuring that a case is duly enquired interned judged, necessarily involves loss of personal rights. At the same time, the release of accused persons on bail assists in the administration of justice by preventing over‑crowding in the available spaces of imprisonment. Therefore, in dealing with cases of sureties who are in default, a balance has to be held between undue leniency, which might lead to abuse of the procedure and interference with the course of justice in a large number of cases, and on the other hand, undue severity, which might lead to unwillingness on the part of neighbours and friends to come forward and give bail for persons under accusation. Finally, in assessing to what extent the bond should be forfeited, the Court have regard to such matters as whether the sureties have any direct interest through financial or blood connection with the accused, whether they have connived at or procured the absence of the accused, and whether they have done their best to secure his attendance. These matters have not been enquired into by the Courts below. We have accordingly thought fit to question the two sureties ourselves on these points."

7. Before dealing with the above report, it may be pertinent to refer to the following judgments/orders of this Court on the subject:‑‑ (i) Malik Nazar Ellahi and another v. The State 1990 SCMR 1092; in which the case was under Article 3/4 of the Prohibition (Enforcement of Hudd) Order, 1979. The accused was released on bail in the sum of Rs.10,

000. He absconded. The learned Additional Sessions Judge concerned forfeited the bond to the extent of full amount. The High Court upon revision reduced the forfeited amount from Rs.10,000 to Rs.8,

000. This Court declined petition for leave to appeal against the judgment of the Lahore High Court. (ii) Muhammad Rashid and 2 others v. The State and others 1990 SCMR 227; In the above case which related to an offence pertaining to narcotics, the trial Court forfeited the full amount of surety bond, namely, Rs.50,000 in respect of each of the accused. The High Court upon revision reduced the same to Rs.40,

000. This Court declined to interfere with the above order of the High Court:‑‑ (iii) Jamroz Khan v. The State 1990 SCMR 1313; in which in a murder case, the Additional Sessions Judge forfeited the full amount of surety bond, namely, Rs.50,

000. A learned Single Judge of the Lahore High Court declined to interfere with the above order in exercise of its revisional jurisdiction. This Court declined leave to appeal and maintained the original order by observing as follows:‑‑ "After hearing the learned counsel, we are of the opinion that Mushtaq Ahmad is admittedly charged for the offence of murder and it was the duty of the surety to have procured the attendance of Mushtaq accused and thus no ground appears for us to show any leniency in the reduction of the forfeiture of bail bond of the full amount, furnished by the petitioner. Thus, finding no force in this petition it is accordingly dismissed. " (iv) Muhammad Sharif and another v. The State 1994 SCMR 690; In the above case, the learned trial Court forfeited the entire surety bond amount of Rs.50,

000. The High Court reduced the same to Rs.20,000 as the accused remained absconded for about eight months and thereafter he was arrested. This Court declined to interfere with the above order. (v) Muhammad Hussain and another v. The State PLD 1995 SC 348; The above case involved two petitions for leave to appeal, which were disposed of by a common order reported as above. In Criminal Petition No.262‑L of 1994, the trial Court forfeited the surety bond amount of Rs.10,

000. The High Court reduced the same to Rs.7,000 in a case under section 13/20/65 of the Arms Ordinance, 1965. Whereas in Criminal Petition No.263‑L of 1994, which related to an offence under section 324/337, P.P.C., the trial Court forfeited the surety bond amount of Rs.50,

000. The High Court reduced the same to Rs.25,

000. This Court declined to interfere with the above judgment of the High Court. (vi) Malik Sher Ahmad Khan v. The State 1996 SCMR 244 in which surety amount of Rs.50,000 was forfeited by the Magistrate concerned in a case under section 302, P.P.C. The High Court reduced the same to Rs.25,

000. This Court declined to interfere with the above order. (vii) Zafar Ali and another v. The State 1996 SCMR 995 In the above case the trial Court in a case under section 302, P.P.C. forfeited Rs.75,000 out of Rs.1,00,000 of the surety bond amount. Upon abscondence of the accused, the High Court reduced the above amount to Rs.60,

000. This Court declined to interfere with the above order of the High Court.

7. The above reports indicate that the question, as to how much amount of a surety bond is to be forfeited in case an accused person jumps the bail bond, depends on the facts of each case. No general hard and fast rules can be laid down. In the words of Cornelius, C.J. in the case of Dildar and another v. The State (supra), "a balance has to be held between undue leniency, which might ,lead to abuse of the procedure and interference with the course of justice in a large number of cases and on the other hand, undue severity, which might lead to unwillingness on the part of neighbours and friends to come forward". The above observations were made by Carnelius, C.J. more than three decades ago, since then there has been overall deterioration in all spheres of life. The crime rate has increased manifolds. The criminal instinct/propensity has penetrated in F all walks of life. Some of the personnel of the State functionaries/agencies which I A are entrusted with the duty to protect the life, property and honour of citizens, either themselves actively participate in the commission of the heinous crimes 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.

8. We may observe that it has now become common that the accused persons involved in heinous offences, if succeed, in obtaining bail, jump the bail bonds. To check the above tendency and to provide deterrent special provisions F3 have been enacted and/or are being enacted in the special statutes prescribing the minimum amount of bail bond for example, under section 5(7) of the Offences in Respect of Banks (Special Courts) Ordinance, 1984, it has been provided that the bail amount would not be less than twice of the amount involved in the commission of the offence. Keeping in view the above 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 1t` 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 I not be forfeited, on the contrary, once an accused person jumps bail bond, the entire surety amount becomes liable to be forfeited in the absence of any , mitigating circumstances. In the case of Jamroze Khan v. The State (supra), the Additional Sessions Judge concerned forfeited the full amount of surety bond it amount, namely, Rs.50,000 in a murder case. The High Court as well as this r Court declined to interfere with the above order. In the other cases, referred to hereinabove, the High Courts had reduced the forfeited amount, but this Court declined to interfere with the same.

9. In the case in hand there are more than one reason which prompted us to forfeit the full amount of the bail bond, firstly, that the surety is the father‑in- law of the accused and, therefore, he was in a better position to produce the accused than a stranger. He was provided opportunities to secure his attendance, but he failed. Secondly, the accused is allegedly involved in a case in which 8 persons were allegedly murdered and a number of persons were injured. Thirdly, the accused at the relevant time was a Station House Officer of a Police Station, he was expected to behave more in the civilized manner than an ordinary criminal person. Keeping in view inter alia the above legal and factual position, we order the forfeiture of the full amount of the bail bond in question, i.e. Rs.2,00,000 (Rupees two lacs). The office will encash the saving/defence certificates deposited by the surety and would deposit the same in the Government Treasury immediately. These are the reasons pursuant to a short order of even date M.B.A./Z‑224/S Order accordingly