This is a revision application under section 439, Cr. P. C. Against an order passed by the Special Judge, Customs and Taxation, Karachi where by the petitioner's surety bond was forfeited and he was called upon to pay a penalty of Rs. 20,000 in respect of four surety bonds executed by him for four accused each bond being of the value of Rs. 10,000.
The facts in brief are that accused (1) Tuti Khan, (2) Dad Gul. (3) Kassim Khan and (4) Abdul Hameed were sent up in the Court of Special Judge, Customs and Taxation, Karachi for offence under section 156 (8) (89) of the Customs Act, 1969 for having been found in possession of smuggled foreign cloth. During the investigation by the Customs these accused had been ordered to be released on bail in the sum of Rs. 10,000 each by the Special Judge, Central, Karachi who was also at that time Special Judge. Customs & Taxation. Later on these posts were bifurcates and a separate Judge was appointed to try the cases under the Customs Act and he was designated as Special Judge (Customs) Karachi. The petitioner had executed the bonds, presumably, before the Customs officer on 6th November, 1974 prior to the case being sent up in the Court of Special Judge (Customs). In these surety bonds the surety had bound himself that the accused shall attend before the Investigating Officer, Customs, whenever called in the investigation of this case and shall also attend "this Court".
3. It has been argued by Mr. Muhammad Ali Shaikh on behalf of the petitioner that since the bail order had been passed by the Special Judge (Central), Karachi, the surety could not at that time have intended to produce the accused in the Court of the Special Judge, Customs & Taxation. It has then been argued by the learned Advocate-General, Mr. Zahoorul Haq, that the surety bond was executed before the Customs Officer and the surety had undertaken to produce the accused in the investigation of the case before the Customs Authorities or before: the Customs Court and that "this Court" was obviously meant for the Customs Court where the accused had even. Tually been sent up on 31st December 1974. The bail application in this case is dated 28th October 1974. It was filed "In the Court of Tribunal (Customs) at Karachi" and not in the Court of Special Judge (Central) as argued by Mr. Muhammad Ali Shaikh. There could not, therefore, have been any misgivings in the minds of the surety regarding the Court where the accused were to be tried. The accused were obviously to be tried before the Judge trying Customs cases at Karachi. The surety bond containing the words "this court", therefore, clearly referred to the Court trying customs cases.
The accused were challaned by the Investigating Officer. (Customs) in the Court of Special Judge, Customs and Taxation, Karachi and the case remained in that Court until the accused absconded and the case had not been transferred to any other Courts.--The surety cannot, therefore, avoid liability on the pretext that he meant to produce the accused is the Court of Special Judge (Central) for anti--corruption cases.
4. It has then been argued by Mr. Muhammad All Shaikh that the four accused belonged to Sawat territory and due to an earthquake that occurred there in the year 1975 all the four accused lost their lives. However, it was necessary for the surety in such cases to produce the death certificates from the Political Agent, District Officer or a Tribal Sardar. Merely saying that the accused died in the earthquake would not absolve the petitioner of his liability.
5. Lastly it has been argued that the learned Special Judge, Customs has imposed a very severe penalty on the surety namely, Rs. 20,000 in respect of four surety bonds. Mr. Shaikh has relied upon (PLD 1963 SC 47) wherein it was observed that a balance had to be kept between undue leniency and undue severity regarding the extent to which a surety bond should be. Forfeited. Their Lordships of the Supreme Court were of the view that full amounts of the bonds need not have been required from the sureties and their default can be adequately punished by requiring each of them to pay Rs. 1,000 and the penalty was reduced from Rs. 5,000 to Its, 1,000 accordingly.
6. I do agree that tae amount of penalty imposed in this case is much too severe but the accused were smugglers of foreign cloth and hardly any circumstances have been shown to exist from which it could beg concluded whether the surety sought to gain anything from the dealings in.
Smuggled cloth by the accused persons. However, the amount of penalty is reduced to Moth of the maximum amount of the surety bonds, namely, Rs. 2,500 in each case or a total of Rs. 10,000 in" respect of the four bonds. But for this modification the revision application is other wise dismissed,