The petitioners had stood sureties for one Ashraf Ali who along with others was an accused in a case registered under section 302/148/149, P. P. C. Ashraf was allowed bail by the Addl. Sessions Judge, Faisal--abad, on 274-1976, in the sum of Rs.. 20,000 with two sureties, each in the like amount, to the satisfaction of Illaqa/Duty Magistrate.
The accused when required did not appear in Court on 3-7-1977. His brother Arshad Ali, who is also an accused and was on bail, undertook to produce him on the next date of hearing. Notices were issued to the petitioners (sureties) and despite several opportunities, the attendance of Ashraf Ali accused could not be secured. As a consequence following the due process of law, the Additional Sessions Judge Faisalabad vide order, dated 20-5-1978, taking a lenient view, ordered the petitioners to pay Rs. 10,000 (Rupees ten thousand only) each, in the Court till 31-5-1978. Against this order, the present revision petition has been filed. In order to afford the petitioners further opportunity to secure the attendance of the accused, I adjourned the case a few times in which nearly three months have passed. Since this was a murder case, on 5-7-1978, 1 also gave notice to the petitioners as well as their counsel for showing cause as to why the entire amount of bail bonds be not forfeited from each of the petitioners. Apprepending that co-accused Arshad Ali may also not escape, I issued notice to him to show cause as to why his bail bonds be not suitably enhanced or his bail cancelled. At a stage, bailable warrants for securing attendance of Arshad Ali have also been issued. Notices for producing Arshad Ali in this Court were also issued. The bailable warrants as well as notices to the sureties remain unserved till today despite many efforts, as none of them is traceable. Their case will be dealt with separately, as a separate file has been prepared.
2. The petitioners' counsel has relied on a case reported in Dildar and another v. The State (PLD 1963 SC 47), to submit that a lenient view should be taken. Following the above cited case, there are two other High Court cases, in which lenient view has been taken. In our society now, it is very rare that a wholly disinterested person stands surety. It is either a kith and kin or a partisan or those who otherwise have deep interest in, or connection with the accused that they take upon themselves the risk and responsibility of executing a bond, for producing the accused in Court, as and when required.
A careful perusal of the case Dildar and another v. The State will indicate that their Lordships were not laying down, any interpretation of law or any hard and fast rules, for determining the amount to be forfeited. At page 49, Cornelius, C. J., has been pleased to observe :- "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 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."
Within a very short span I have noticed quite a few accused having skipping bails, in serious cases like murder. Even in this case, neither the co-accused nor his sureties are traceable, and more alarming is the fact, that the original file was not traceable and the file has been reconstructed, I believe that the situation is alarming, and the leniency of Courts in the matter of forfeiture of the amount of bond has, resulted in the tilting o the balance in favour of abuse of the process of law.
Time has reached, where the weight of authority of law should be placed on the side of strictness, to curb the abuse of the process of law. Impunity always invites greater crimes. Law looks forward and not backward, for it is enforced to curb the mischief. If we were to be negligent about it, w will soon have, only misfortune for a companion. Skipping of bails by the accused will become a routine, the accused facing charges punishable wit death will be more tempted to suborn the evidence, even if it comes to mur--dering the witnesses as the same would not incur any risk of graver penalty, and in this manner the entire system of ensuring a free and fair trial will collapse. If a strict view against the sureties is not taken by the Court, then, I can foresee, the Courts getting reluctant to grant bail which will again lead to keeping accused behind bars for considerable period before their guilt is established, though in law they are presumed to be innocent, till their guilt is established.
5. I am, therefore, of the opinion that for some time, we will have --to adopt a line giving effect to the undermentioned portion of the observa--tions of Supreme Court "Therefore, entailing the 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 Courts of justice in large number of cases."
6. Regarding the capacity of the petitioner to pay, the Duty/Illaq Magistrate would have accepted the bonds after satisfying himself that the surety was a fit person to execute a bond in the sum of Rs. 20,000 and had the means to pay the amount of the bond in case of default. Eve otherwise, since the execution of the bond by reason of high yields is agriculture, to which community the petitioners belong, and the inflation, intrinsic vatue of Rs. 20,000 (Rupees twenty thousand only) in practica terms is considerably reduced. I, therefore, see it a fit case to enhance the amount of forfeiture, to Rs. 20,000 (Rupees twenty thousand only from each of the surely which shall be deposited by the 15th o October, 1978, failing which action under the law for the realisation of the aforesaid amount, from each of them, in accordance with the terms of the bond shall be taken forthwith.
Amount for forfeiture entranced.