2019 P Cr (PLP)

ABDUL MAALIK GADDI, J.

This criminal revision application is directed against the order dated 25.07.2017 passed by the learned 1st Additional Sessions Judge, Karachi (West), in Sessions Case No.356 of 2011, whereby the applicant/surety Jan Wali was directed to deposit forfeited amount of Rs.70,000/- for each accused within the period of one month before the Nazir of trial Court.

2. It appears from the record that the applicant stood surety for the accused Muhammad Faisal, Sher Wali, Ziaullah and Manjwar in the sum of Rs.70,000/- each (subsequently accused Manjwar was acquitted by the trial Court under section 265-K, Cr.P.C.). The accused Muhammad Faisal, Sher Wali and Ziaullah were charged under sections 147/148/ 149/427/353/324/34, P.P.C. in Crime No.122 of 2011 of Police Station Mochko, Karachi. It appears from the record that during pendency of the case, the said accused jumped the bail bond and shifted to abroad, therefore, notice under section 514, Cr.P.C. was issued to the surety and after hearing the parties, surety amount was forfeited and was ordered to deposit the surety amount in Court within the period of thirty days time. A request was made for reduction of surety before trial Court, which was turned down.

3. Learned counsel for the applicant contended before me that the impugned order is very harsh and the learned trial Court has not considered all the explanation furnished by the applicant in his reply. She further contended that applicant stood surety for the said accused in the name of Almighty Allah without any monetary gain and applicant is poor person and ply the vehicle for which documents is in custody of the trial Court, therefore, on non-availability of registration certificate/document, he could not ply the vehicle on the road, as such, he is facing financial problem. Hence, she prayed that surety amount so forfeited may be reduced to some reasonable extent.

4. Learned APG has supported the impugned order by arguing that the impugned order is perfect in law and on facts. He further submits that applicant was stood surety for the said accused persons voluntarily, therefore, he is not entitled for any relief.

5. After hearing the learned counsel for the parties and going through the record, I have come to the conclusion that though applicant was liable to pay forfeited amount, but keeping in view the circumstances of the case the learned trial Court had exceeded while ordering the forfeiture of the entire amount of Rs.70,000/- each. In my view, with regard to the quantum of amount to be forfeited the Court has to look in certain facts and as held by their Lordships of the Supreme Court in the case reported as Dildar and another v. The State reported as PLD 1963 SC 47 that balance is to be kept in between undue leniency and undue severity. The relevant portion of the cited judgment is reproduced below:- "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 degree 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 into and 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 overcrowding 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 would have regard to such matters as whether the sureties have any direct interest 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 the Courts below. We have accordingly thought fit to question the two sureties ourselves on these points."

6. The fact that applicant stood surety for the accused in the name of Almighty Allah and the financial position of the surety is also a relevant factor for determination of quantum of forfeiture.

7. Yet in another case reported as Muhammad Khan v. The State (1986 PCr.LJ 2028) it was held that since the petitioner had stood surety not for monetary benefit, therefore, there was no connivance about the disappearance of the accused alleged against the surety. The amount to be confiscated in favour of the State was, therefore, reduced from rupees fifty thousand to that of rupees five thousand only. Similarly, in Sardar Khan and another v. The State (1988 PCr.LJ 447) his Lordship has reduced the forfeiture amount of the bonds from rupees ten thousand to rupees three thousand only, although, the accused had escaped to the tribal territory after being charged in the murder case but there was no connivance of surety-petitioner. In the case of Muhammad Shah and others v. The State (1994 PCr.LJ 2316), it was observed that as per facts available on record there is nothing to suggest that the surety had any other consideration except the benevolence of the accused and, therefore, the forfeited amount was reduced from rupees five thousand to rupees five hundred only.

8. As observed above, the main contention of the applicant/surety is that he is a poor man, stood surety for the accused not for the monetary gain and only ply the vehicle for which documents are already in custody of the Nazir of this trial Court, therefore, due to this fact, he could not ply the vehicle on the road, as such, he is facing financial problem. Nothing on record that applicant stood surety for the accused for monetary gain.

9. In view the of the foregoing discussion, I have no hesitation to modify the order of trial Court by reducing the surety amount from Rs.70,000/- each to Rs.25,000/- each, total amount of Rs.75,000/- with the directions to the applicant/surety to deposit Rs.75,000/- before the Nazir of trial Court.

10. With the above modification in the impugned order, the instant criminal revision application is disposed of along with listed application. SA/J-20/Sindh Order accordingly.