2000 P Cr (PLP)

This revision application is directed against the order, dated 30-5-1998 passed by learned Additional Sessions Judge, Kotri, imposing penalty of Rs.2,50,000 against the applicant-surety Ali Muhammad due to absconsion of accused Javed son of Ibrahim who was facing trial before the learned Court of Additional Sessions Judge, in a case under section 302, P.P.C.

2. The facts relevant for the purpose of the present revision application are that a report under section 302, P.P.C. registered as F.I.R. No.15 of 1991 was lodged at Noriabad Police Station against accused Javed son of Ibrahim. Accused Javed was challaned at the conclusion of investigation, to face the trial. The applicant Ali Muhammad had stood surety for the accused on 13-12-1994 in the sum of Rs.2,50,

000. The accused continued attending the learned trial Court after his release on bail till February, 1997, when on 18-2-1997 due to absconsion of the applicant his bail was cancelled and surety bond forfeited. The accused could not be arrested and consequently on 22-12-1997 he was declared as proclaimed offender and further ordered to be proceeded against under sections 87 and 88, Cr.P.C.. The case of the accused was consequently kept on dormant file.

3. On receipt 'of notice under section 514, Cr.P.C. the applicant appeared before the trial Court and requested for time to secure the custody of the accused. The applicant was afforded several chances but he failed to produce the accused before the Court as per the condition of his bond. The applicant, however, lastly appeared on 30-5-1998 when he stated before the Court that he was not able to procure the attendance of the accused. Resultantly the applicant was ordered to pay the bond amount as above.

4. It was contended by Mr. Syed Madad Ally Shah, learned counsel for the applicant that the order of fine was unjust and very harsh. He argued that the learned trial Court was not competent to impose penalty upon the applicant as even the police had failed to secure the custody of the absconding accused. He contended that the accused might have died, killed or left Pakistan. Learned counsel further argued that the applicant a poor villager had stood surety for the accused as accused was a co-villager of the applicant and had offered himself as surety for accused purely on humanitarian grounds and without any monetary consideration. Learned counsel in support of his case relied upon the following cases:-- (1) PLD 1995 SC 348, (2) 1996 PCr.LJ-860, (3) 1990 PCr.LJ 951, (4) 2000 PCr.LJ 94 and (5) 2000 PCr.LJ 172.

5. On the other hand Mr. Agha Khuda Bux learned Additional Advocate-General appearing for the State has vehemently opposed the revision application by stating that the accused was the only person facing the trial of murder and with his absconsion the case of prosecution has been closed and kept on the dormant file. He further argued that the accused was declared as proclaimed offender and proceedings under sections 87 and 88, Cr.P.C. were initiated against him. He has placed reliance upon the case of Zeeshan Kazmi v. The State reported in PLD 1997 SC 267.

6. In the case of Muhammad Hussain and another v.. The State PLD 1995 SC 348 it was held by their Lordships that, "however, no hard and fast rule in this regard could be laid down as the forfeiture of bond in each case would depend on the facts and circumstances of each case".

7. In the case of Naseer Muhammad v. The State 1996 PCr.LJ 860 revision was allowed and the order to the applicant-surety to pay amount of fine of Rs.50,000 was set aside as no inquiry was held to find out whether the appellant's non-appearance before the trial Court was beyond his control as the accused was reported to be in jail.

8. In the case of Momen Khan v. The State 1990 PCr.LJ 951 the revision of the applicant-surety was allowed on-the grounds inter alia that surety was not allowed sufficient time to locate the accused and the prayer of surety for time to produce the accused was summarily rejected.

9. In the case of Sher Ali and another v. The State 2000 PCr.LJ 94 the amount of fine of Rs.25,000 was reduced to Rs.5,

000. The considerations before the learned Single Bench of Lahore High Court were that the sureties had tried their best and had fully assisted in search of the accused and had spent money equal to the bond amount in their efforts to locate the accused.

10. In the case of Dilshad Ahmed and others 2000 PCr.LJ. 172 order of fine was set aside and case was remanded on the ground inter alia that the impugned order was executive order and not a judicial order.

11. In the case of Zeeshan Kazmi v. The State PLD 1997 SC 267 Honourable Supreme Court of Pakistan while imposing full amount of bond as penalty upon the surety has given guidelines at paras. 7 and 8 of the judgment in dealing with the cases of sureties. -

12. Admittedly, there was only one accused in the case facing the trial of murder. It was the voluntary act of the applicant having offered himself as surety of the accused in the sum ordered by the Court. Trial Court after being fully satisfied that the absconsion of the accused, has observed in its order as follows:-- "The surety was served, who appeared in this Court on several dates of hearing and has been seeking time to produce the accused. Today again surety is present and has straightaway stated that the whereabouts of the accused are not known and he is unable to procure his attendance before this Court. "

13. The responsibility of the surety cannot be minimized under any circumstances. The grounds that the accused might be dead, may have been killed or may have left Pakistan or may be in jail custody or that even the police failed to secure the custody of the accused are simply misconceived and the same cannot be considered in favour of the surety. The surety must know the consequences of absconsion of the accused before offering himself as a surety.

14. Justice is not only to be done to the murderer or some one interested in him but justice is also to be done to the deceased and the persons interested in him. The leniency could of course be shown to a party where it is due but not at the cost of justice required to be done in a given case.

15. Since the applicant-surety is shown to be an uneducated, unsophisticated and a simple rustic villager, not knowing fully well the repercussions emanating from aforesaid failure on his part, I am inclined to reduce the amount of fine to Rs.2,00,000 only. The revision application is allowed to the above extent. 16: The applicant shall deposit an amount of Rs.2,00,000 in the trial Court within two months.

17. Above are the reasons for the short order, dated 10-4-2000. deciding the above revision application. . Q.M.H./M.A.K./A-55/K Order accordingly.