1999 PLP 353 (MLD)

The facts leading to the present criminal revision are that applica!;, Misri son of Lal Bux Lund stood surety in the sum of Rs.2,00,000 (Rs.Two Lacs only) and he executed such Bond on 8-12-1995 for accused Ayoob and Ahmed who Were facing trial under sections 302 and 34 P.P.C., in the Court of 11Ird Additional Sessions Judge, Dadu in Sessions Case No.346 of 1990 vide Crime No. 51 of 1990 of Police Station Juhi District Dadu. On 1-9-1996 both the accused Ayoob and Ahmed disappeared, therefore, N.B.Ws. were ordered and their bail bonds were forfeited by the trial Court and notice under section 514, Cr.P.C. was issued to the applicant. In response to said notice the applicant/surety appeared before the trial Court on 25-11-1996 and sought time for producing the accused and for submitting reply to the said notice He sought various adjournments on this ground and ultimately on 21-4-1997, when the matter again came up for the same purpose before the trial Court the applicant filed his reply stating therein that accused have absconded and he is unable to locate them therefore he may be excused and the notice issued against him may be vacated as his land has become barren due to shortage of water. The impugned order dated 8th May, 1997 show that after careful consideration of the reply and circumstances of case while keeping in view the Justice may be tampered with mercy, trial Court reduced the amount of bond to 50% i.e. from Rs.2,00,000 (Rupees two lacs) to Rs.1.00,000 (Rupees one lac) and applicant was ordered to deposit the reduced amount on or before 31-5-1997.

2. The learned counsel for the applicant/surety has contended that impugned order whereby it is ordered that the applicant should pay Rs.1,00,000 is harsh, illegal and not sustainable in law; that the applicant stood surety for absconding accused out of benevolence and upon humanitarian grounds and not for monetary gain or personal benefit and he is tiller of soil; that the applicant surety made hectic efforts to locate the absconding accused but his efforts failed and he was unable to find out his whereabouts; that the non-appearance of accused is beyond the control of applicant/surety; that the amount be reduced to 1/4th of the principal amount; that the trial Court has passed impugned order in haste. It is contended that the order is, therefore, liable to be set aside. The learned counsel for applicant/surety has placed reliance on 1996 PCr.LJ 1028, PLD 1963 SC 47 and 1996 PCr.LJ 860.

13. Mr. Mukhtar Ahmed Khanzada, learned counsel for the State has supported the impugned order and has stated that it does not suffer from any illegality and revision application is liable to be dismissed.

4. I have carefully considered the arguments of learned counsel for the applicant/surety and learned counsel of the State. I have also perused the impugned order as well as material placed on record.

5. The absconding accused Ayoob and Ahmed were sent up in a case under sections 302 and 34, P.P.C., in which applicant stood surety before the trial Court. Bail is nothing but change of custody, as after the grant of bail and consequent release from custody, accused is placed in the custody of the surety and he is responsible to produce him (accused) in the Court if and when so ordered or required. In case of non-appearance or non-production of the accused before the Court, the surety is liable to penalty under law. It is the duty of the surety to trace out the accused and produce him before the Court and if in this regard he went in search of the accused is no ground for discharge from penalty provided by law. The trial Court provided ample opportunity to surety for producing the accused in the Court. The applicant himself has stated in his reply to notice under section 514, Cr.P.C. before the trial Court as well as before this Court that non-appearance of accused is beyond his control, therefore, the order of the trial Court cannot be termed to have been passed in haste or that it was passed without proper opportunity of hearing having been provided to him. The impugned order is well-speaking order and every pros and cons of the matter has been considered by the trial Court and 50% amount of the bond has already been reduced. The order does not suffer from any legal infirmity.

6. The case law cited by the learned counsel for the applicant surety is of no avail to him and it is distinguishable both on the facts as well as law and ii is not applicable to the facts of present case.

7. In the case of Naseer Muhammad v. The State, reported in 1996 PCr.LJ 869 process server namely H.C. Azizullah of Police Station Nau Dero was examined by the trial Court and he deposed that accused Iqbal alias Iko was confined in Central Prison at Karachi but even then trial Court forfeited the surety bond and directed him to pay the entire amount of surety bond, therefore the impugned order was set aside and case was remanded to trial Court for the consideration whereas in the case in hand both the accused are admittedly absconders. In case of Jahangir Khan v. The State, 1996 P.Cr.LJ 1028, sufficient opportunity was not provided to surety to locate the absconding accused. Therefore, the amount of penalty was reduced whereas in this case sufficient opportunity was provided to the applicant and when he (applicant), showed his inability to locate him only then trial Court passed the impugned order.

9. In case of Dildar and another v. The State, reported in PLD 1963 SC 47 the sureties acted through mere benevolence oil behalf of another shopkeeper whom they knew either directly or through an agent. Ghulam Hussain (surety) had a shop about 20 yards away from that of Mir Jan who had been a customer of his for some 10 years and he had always thought of Mir Jan as an honest man because his behaviour was good. When he was arrested, relative of his named Muhammad Yamin approached Ghulam Hussain who agreed out of neighbourly feeling to become surety. Later it was learnt that Mir Jam died in the Multan area due to Pnemonia. Dildar was running a hotel in Karachi and he was fro,, , U.P. India originally and he became surety for Mir Jan at the request of Zarir: Khan who was servant with him and later on Zarin Khan also disappeared, Moreover the dicta laid down by the Honourable Supreme Court is reproduced hereinbelow: 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 neighbourers and friends to come forward and give bail for persons under accusation." Thus, the facts of the present case are quite different from the facts of the case cited above.

10. The trial Court has already taken lenient view after considering every aspect of the matter. In my considered view the impugned order in the peculiar facts and circumstances of this case does not suffer from any legal infirmity and it is neither harsh nor illegal but it is just and proper order which does not call for any interference. Consequently, this revision application is dismissed. N.H.Q/M.329/K/ Revision dismissed.