1999 P Cr (PLP)

SARDAR SAID MUHAMMAD KHAN, C.J.‑‑‑ This appeal has been directed against the order of the Shariat Court, dated 9‑11‑1996, whereby the revision petition filed by the appellants, herein, was dismissed.

2. The brief facts of the case are that a case under section 5 of Islamic Penal Laws Act, 1974 read with sections 342 and 109/34, A.P.C. was sub judice againkt Inayatullah, Muhammad Mushtaq and Muhammad Ishaq in the District Criminal Court Kotli: Muhammad Mushtaq, after his arrest, applied for bail which he was granted in terms that he would furnish a bail bond in the sum of Rupees two lakh consisting of two sureties, The appellants, herein, duly executed surety bonds as was directed by the trial Court. Subsequently, after his bail, Muhammad Mushtaq absconded and proceedings were initiated against the appellants for the recovery of forfeited amount. After hearing the parties, the trial Court reduced the forfeited amount from rupees two lakh to Rupees one lakh and fifty thousand. A revision petition was filed before the Shariat Court but the same was dismissed.

3. It has been contended by Mr. Liaquat Ali Khan, Advocate, the learned counsel for the appellants, that the Shariat Court has incorrectly held that the appellants had hand in the abscondence of Muhammad Mushtaq. He has argued that there is no proof on the record in support of the aforesaid finding. The learned counsel has further argued that while passing an order for the recovery of forfeited amount, a balance has to be struck between "leniency" and "severity". According to the learned counsel in the circumstances of the present case, the forfeiture of the bail bonds to‑ the extent of Rupees one lakh and fifty thousand is excessive. He has referred to a case reported as Jahangir Khan v. The State 1996 PCr.LJ 1028, wherein it has been held that in cases of forfeiture of bail bonds, a balance is always to be kept between undue leniency and undue severity. It was opined that as the sureties were tillers and did not have sound financial position, the recovery of the forfeited amount to the tune of Rupees ten thousand from each surety would meet the ends of justice.

4. Ch. Muhammad Mushtaq, Additional Advocate‑General, has controverted the arguments advanced by the learned counsel for the appellants. He has argued that the surety bond in a murder case to the tune of Rupees two lakh was unreasonable but even that amount was reduced by the trial Court from Rupees two lakh to Rupees one lakh and fifty thousand; undue leniency has already been shown to the appellant and they are not entitled to any further indulgence. ‑

5. We have given due consideration to the arguments. We have no quarrel with the proposition that a balance must be kept between too much severity and too much leniency. However, the question of "severity" and "leniency" depends on the circumstances of each case; keeping in view the financial conditions of the sureties, their relationship with the accused; and whether surety procured the appearance of the absconding accused at a subsequent stage. It may be pointed out here that the purchasing value of money has been enormously decreased due to inflation and other economic factors. Therefore, the bail bond in the instant case to the tune of Rupees two lakh was inadequate. However, that amount of the forfeited bond was further reduced by the trial Court. There is nothing on the record to substantiate the contention of the learned counsel for the appellants that the financial condition of the appellants is so meager that they would face hardship in paying the forfeited amount. The accused is still absconding and the appellants did not show that they made efforts for the production of the accused in the Court. It may be stated here that the question as to what would be reasonable amount in case of forfeiture has been dealt with in case reported as Muhammad Asghar v. Muhammad Shafique 1995 SCR 141 by this 'Court, wherein the case‑law on the point from Pakistan and Azad Kashmir jurisdiction has been discussed. In the aforesaid case the ball bond was executed in the sum of Rupees two lakh. However, the trial Court, while passing the order of forfeiture of bail bond, ordered the sureties to deposit Rupees twenty thousand each instead of Rupees two lakh in the treasury. A revision petition was filed to the Shariat Court which enhanced the amount of forfeited amount to Rupees two lakh, the whole sum for which the bail bonds were executed. Am appeal was filed against the order of the Shariat Court to this Court and the amount of Rupees two lakh was reduced to Rupees one lakh and sixty thousand, i.e. the forfeited amount was only reduced by Rupees forty thousand. In the instant case, the appellants have already been shown indulgence and the forfeited amount has been reduced by the trial Court to the tune of Rupees fifty thousand. Thus, we see no reason to reduce the forfeited amount any further in the circumstances of the case. Hence finding no force in this appeal, it is hereby dismissed. Q.M.H./M.A.K./317/SC (AJ&K) Appeal dismissed.