' Through this writ petition the petitioner Allah Ditta has challenged the vires of order dated 9-6- 2004 passed by learned Additional Sessions Ridge, Lodhran whereby he dismissed the revision filed by the petitioner against the order, dated 5-11-2002 passed by the learned Magistrate Section 30, Lodhran whereby general warrant for attachment and sale of property was issued.
2. Briefly stated the facts of the case are that petitioner Allah Ditta stood surety worth Rs,50,000 for Muhammad Shafi, who was involved in case F.I.R. No,93 of 2001 dated 14-4-2001 under sections 324/452/ 427/337-L(ii)/148/149, P.P.C. Registered at Police Station Saddar Lodhran. During the course of investigation Muhammad Shafi joined the investigation and he was declared innocent by the police. Muhammad Shafi did not appear before the learned Special Judge, Anti-Terrorism Activities and his pre-arrest bail was dismissed and the learned trial Court also issued notice under section 514, Cr.P.C. Against the petitioner and consequently the case was transferred to the learned Judicial Magistrate who vide order dated 5-11-2002 issued warrant for attachment and sale of property against the petitioner/surety for recovery of entire amount of penalty. Being aggrieved the petitioner filed revision petition which was dismissed vide order, dated 9-6-2004 passed by the learned Additional Sessions Judge, Lodhran. Hence, this petition.
3. Learned counsel for the petitioner contends that during investigation Muhammad Shafi accused was declared innocent and he neither absconded nor concealed himself to avoid the trial. That under the provisions of section 514(2), Cr.P.C. Penalty can be recovered by issuing warrant for attachment of movable property and sale of the movable property belonging to surety or his estate if he be dead and immovable property cannot be attached or sold and the learned Judicial Magistrate issue general warrant for attachment and sale of property of petitioner/surety which is not only illegal but it also invalidates the warrant so issued and the impugned order is not sustainable under the law; that the learned Additional Sessions Judge had neither adverted to the illegalities (sic) Magistrate and nor assigned any reasons to uphold the order of the Judicial Magistrate. Further contends that the learned Additional Sessions Judge has not discussed the illegalities agitated but dismissed the revision petition on the ground that petitioner ought to have filed appeal instead of revision petition and the learned counsel also contends that the impugned order is arbitrary, capricious and perverse which has caused miscarriage of justice and is liable to be set aside. He has relied on Lal v. The State 1990 PCr.LJ 1371.
4. Learned counsel appearing on behalf of learned Advocate-General, Punjab has opposed the instant petition. He however, half heartedly opposed the proposed reduction of penalty amount.
5. I have heard learned counsel for the parties and carefully perused the record available on the file. Although the accused person for whom the petitioner stood surety was declared innocent during the course of investigation and challaned in Column No,2, yet he was bound to attend the Court on each and every date of hearing of pre-arrest bail till its final disposal. However, facts of the case show that after having been declared innocent by the police the said accused namely Muhammad Shafi due to some misunderstanding failed to attend the Court to pursue his bail petition. It also appears that petitioner stood (sic) monetary benefit. Following the dictum laid down in Muhammad Khan v. The State 1986 PCr.LJ 1028, I am constrained to observe that balance should have been kept between undue leniency and undue severity by taking into B consideration the financial status of,the petitioner as well as facts of the case.
6. For what has been discussed above, it is held that impugned order, dated 5-11-2002 passed by learned Magistrate Section 30, Lodhran and that of the learned Additional Sessions Judge, Lodhran dated 9-6-2004 do not call for any interference and same are maintained and writ petition is dismissed. However, keeping in view the peculiar circumstances of the case the amount of penalty is reduced from Rs,50,000 to Rs,25,000 in the interest of justice.