' CHAUDHARY MUHAMMAD TM, J.---This appeal has been filed to challenge the judgment and order passed by the Shariat Court of Azad Jammu and Kashmir on 13-10-2003 whereby the appellant was ordered to deposit the entire surety amount.
2. The facts are that the appellant stood surety for accused namely Sain Azhar in a case titled State v. Sain Azhar and others pending in the District Court of Criminal Jurisdiction, Kotli under sections 302/34, A.P.C., while executing the bail bond of rupees two lacs on acceptance of his bail application. The accused after his release absconded and till today could not be apprehended.
The proceedings were initiated for forfeiture of the bail bond under section 514, Cr.P.C. The surety was ordered to deposit rupees fifty thousand only. Respondent No,1 filed a revision petition before the Shariat Court of Azad Jammu and Kashmir which was accepted and the appellant was ordered to deposit rupees two lacs, the entire amount of surety bond. This appeal challenges the aforesaid order.
3. Mr. Muhammad Yunus Tahir the learned counsel representing the appellant, contended that the appellant was a poor civil servant who is facing hardship in depositing the entire amount of surety bond. The order passed by the District Court of Criminal Jurisdiction was based on sound grounds, therefore, the order recorded by the Shariat Court may be set aside. The learned counsel referred to a case reported as Dildar and another v. The State PLD 1963 SC 47 in support of his assertions.
4. Ch. Muhammad Reaz Alam, the learned counsel representing the complainant-respondent, contended that the accused after his release has absconded and till today has not been apprehended. The surety executed a bond of rupees two lacs which has been forfeited but the District Court of Criminal Jurisdiction without any lawful justification reduced the amount to be recovered from the surety as rupees fifty thousand, therefore, the Shariat Court after taking into consideration all aspects ordered for the deposit of rupees two lacs, the total amount of the surety.
The learned counsel referred to the following authorities in support of his assertions:-
(1) Muhammad Ashraf v. The State and 2 others 2001 PCr.LJ SC (AJ&K) 1749 and
(2) Ch. Muhammad Younus and another v. Robkar-e-Adalat and another 2001 M LD 673.
5. We have heard the learned counsel for the parties and also gone through the record. It is not disputed that the appellant herein stood surety for accused Sain Azhar and executed a bond of rupees two lacs for his appearance before the Court. The accused after his release absconded and has not been apprehended uptill today. The District Court of Criminal Jurisdiction, Kotli while proceeding under section 514, Cr.P.C. Forfeited the bail bond and ordered appellant, the surety, to deposit rupees fifty thousands while in an appeal filed on behalf of the complainant, the Shariat Court did not agree with the order passed by the District Court of Criminal Jurisdiction and ordered the surety to deposit A rupees two lacs, the total amount of surety bond by accepting the revision petition.
6. A perusal of the order passed by the District Court of Criminal Jurisdiction, Kotli shows that the Court has failed to give any reason for reduction of the amount except that the surety was a Government employee. We are afraid, we cannot agree with the findings recorded by the District Court of Criminal Jurisdiction. A person who stands surety for any accused person is bound by law to deposit the total amount of surety bond if the same is forfeited and the Court orders for its deposit in the Government Treasury. The judicial discretion has to be exercised keeping in view the law. Here the learned members of the District Court of Criminal Jurisdiction, Kotli ignoring the law involved has arbitrarily fixed the amount, therefore, the learned Judge in the Shariat Court was correct in his view while ordering the deposit of the entire amount of surety bond. It has been consistently held by this Court that accused involved in heinous cases like murder have developed a tendency to abscond, therefore, the sureties do not deserve any leniency. Reference may be made to a case reported as Muhammad Ashraf v. The State and 2 others 2001 PCr.LJ SC (AJ&K)
1749 where a similar situation arose and the following observations were made:-- "8. It will not be out of place to mention here that the situation of law and order during the present days has deteriorated to a considerable extent. It has become routine of the accused to jump of the bail and go abroad rather than facing trial. Those accused who are involved in heinous offence like murder. Their sureties do not deserve any leniency in the matter of reduction of their bail bonds.
It is, therefore, imperative that the Courts of law should take stringent measures against those who undertake as sureties to produce accused on every date who are involved in heinous offence of murder but later on expect that they may be shown indulgence. In heinous offences, normally no leniency should be shown to the sureties in the matter of reduction of their bail bonds.
7. In the light of what has been stated above, we are of the considered view that the Shariat Court committed no illegality in forfeiting the entire amount of bail bonds of rupees two lacs."
' The case of Ch. Muhammad Younus and another v. Robkar-e-Adalat and another 2001 M LD 673 can also be referred in support of the proposition where it was held:-- "6. After hearing the respective contentions of the learned counsel for the parties, it may be stated that the trial Court as well as the Shariat Court have confiscated the whole amount of Rs,10 lacs as undertaken by the appellants while furnishing their surety bonds. There seems to be no earthly reason for the reduction of amount of surety bonds as we have observed in so many cases that it has become a routine particularly in District Mirpur and Bhimber that the accused after getting their release on bail usually make good their escape by absconding. Therefore, in our view the sureties do not deserve any leniency in the matter of confiscation of their surety bonds.
7. To have the survey of the case-law it may be stated that in a case titled Dildar and another v.
The State PLD 1963 SC 47 it was observed that a balance is to be kept into mind between undue leniency and undue severity as in the opinion of the learned Judges the sureties had been acting through mere benevolence on behalf of accused, therefore, forfeiture of bonds from Rs,5 thousands to Rs,1 thousand was reduced. However, the accused in the aforesaid case was involved in a petty crime of theft of a meagre amount."
8. It will be important to mention that the case-law referred to by the learned counsel for the appellant, apart from the fact that in view of distinct facts did not apply to the case in hand, was also discussed in the above referred authority of this Court.
9. In view of the above, we find no merit in the appeal and maintain the order passed by the Shariat Court by dismissing the same.