This Revision Application has been filed by the applicant challenging the forfeiture of his surety bond and the notices issued by the Special Judge, Anti-Corruption, Karachi, for recovery of the amount of Rs. 25,000.
2. The applicant had stood surety on 4-9-1972 for one Pervaiz Ahmed, who was an accused in Special Case No. 59,175. The accused had been granted bail and in pursuance of the order of the Special Judge granting bail, the applicant bad executed a bail bond in the sum of Rs. 25,000 undertaking that the accused shall attend the Court of the Special Judge at Karachi if and when required by the Police and the Court to answer the charge, on which he had been arrested and that the accused shall continue to attend and in case of the accused making default, the applicant shall forfeit the sum of Rs. 25,000 to the Governor General of Pakistan.
The accused had also executed a personal bond in the like amount of Rs. 25,000 for his appearance as and when required.
3. The said accused alongwith his co accused was sent up to face trial on 25-10-1975 before the Special Judge under section 420/468/471/34, P. P. C. Read with section 5(2) of Act II of 1947. It is the case of the State that accused Pervez Ahmed absented himself on 10-7-1978 and did not attend the Court but sent a medical certificate to the effect that he was ill. There--after on two next dates of hearing also the accused remained absent and sent medical certificates for his absence. On 23-9-1973 when the case against the accused was fixed for bearing, he was again absent and this time no medical certificate was forthcoming. In the circumstances, the Special Judge passed the orders for issuance of non-bailable warrants against him and also for issuance of notice under section 514, Cr: P. C. Against the applicant as surety. The applicant's case is that no such notice was received by him. It is, however, admitted by the applicant that a notice dated 31-3-1979 issued by the Special Judge requiring him to appear before the Court on 6-5-1979 was received by him, but in the rush of official work and being busy with duties and papers in the course of his employment, the notice served upon him was mislaid and was lost sight of, which the result that it slipped out of his mind that he was required to appear before the Court of the Special Judge on 6-5-1979. As a result the applicant did not appear on 6-5-1979. The notice dated 31-3-1979 addressed to the applicant stated that he had, stood surety for the accused and the applicant had failed to produce the accused before the Court since 10-7-1978 and, therefore, he was called upon to show-cause as to why his bail-bond may not be forfeited and surety amount of Rs.
25,060 recovered from him. . The applicant was directed to appear before the Court on 6-5-1979 and also to produce the above-named accused.
4. In view of the reasons mentioned in the previous paragraphs the applicant did not appear before the Special Judge on 6-5-1979. Another notice dated 14-11-1979 was then -served upon the applicant calling upon him to deposit the sum of Rs. 25,000 within 1.5 days, failing which the applicant was warned that attachment warrant had been ordered to be issued against the applicant on 26-11-1979. It is in these circumstances that the present Criminal Revision was filed by the applicant. By order-dated 2-12-1979 this Court admitted the Revision to hearing and. Proceedings for recovery were stayed subject to the deposit of Rs. 10,000 by the applicant in this Court. The amount of Rs. 10,000 was deposited by the applicant in this Court on 3-12-1979 and by order dated 19-1-1980 the interim stay order was confirmed by consent of the learned Assistant Advocate-General, Who had then appeared on behalf of the State.
5. The applicant has also filed an affidavit before this Court, in which he has stated that he stood surety for the accused only on account of benevolence and had not gained any benefit or advantage on this account.
According to the applicant, the widowed mother of the accused alongwith a relative of the applicant came to the applicant and requested him to stand surety for the accused as the widowed mother had no one to help her in the situation. The applicant consented to stand surety on the persuation of his relative, the main reason being to help the widowed mother. It is further stated by the applicant in his affidavit before this Court that after he had received notice from the Special Judge he had tried his best to search the accused but in vain. He contacted the relative who had persuaded the applicant to stand surety as well as the mother of the accused, but neither of them was in a position to give any information about the whereabouts of the accused. According to the applicant, the mother of the accused herself appeared to be in much distress on account of the disappearance of her son. The affidavit further mentions that the applicant went to Lahore and other places wherever the relatives of the accused were living and enquired from them about the whereabouts of the accused, but no one could give the applicant any information about the accused. The applicant further stated that he himself was a victim of the circumstances and prayed for leniency in the case.
6. Normally, the question of leniency should have been decided by the Special Judge himself, lint in the circumstances mentioned hereinabove, the applicant could not place the facts on the basis of which he has made a plea of leniency before the Special Judge. The learned counsel appearing on his behalf contended that in the circumstances and in the interest of justice and for saving the applicant from further agony, the facts and circumstances that have been brought to the notice of this Court may be taken into consideration and the question whether the applicant is entitled to any leniency be decided by this Court instead of remanding this case to the Special Judge for this purpose.
7. Mr. Muhammad Shibli, the learned counsel for the applicant, in support of his contention has relied upon the case of Dildar v. Tie State (PLD 1963 SC 47) Mr. Zaheer Qureshi, learned counsel appearing on behalf of the State, has also agreed with Mr. Shibli that the question of leniency may be decided by this Court on account of the reasons advanced by the counsel for the applicant and also on account of the fact that the bail bond had been executed by the applicant in 1972 and even after the expiry of nearly 8 years, the applic--ant is still under the shadow of this liability.
8. In the case of Dildar v. The State decided by the Supreme Court of Pakistan, referred to above, the appeal of two persons who had stood sureties for certain accused and whose bail bonds had been forfeited, was taken up to the Supreme Court and while dealing with the question as to what extent the bonds should be forfeited, which question had not been enquired into by the Courts below, the Supreme Court decided to question the two sureties themselves and after finding out the facts and relevant circumstances, although coming to the conclusion that the two sureties had forfeited their bonds, decided that the full amount of the bonds need not have been required from them and in the circumstances held that their default in not producing the accused would be adequately punished by requiring each of them to pay a sum of Rs. 1,000 instead of the bonds of Rs.
5,000 executed by each of the two sureties. In view of this decision of the Supreme Court and the joint request made by the parties I have decided to go into the question of leniency myself instead of remanding this case to the Special Judge.
9. The facts which have come to the notice of this Court through the affidavit dated 30-4-1980 filed by the applicant; and which facts have no been denied by the counsel for the State, make out a case for leniency as for the amount to be forfeited. The applicant had stood surety on account of benevolence and did not gain any benefit therefrom. On account of the request made by one of his relatives and the widowed mother of the accused the applicant came forward to help the mother of the accused as no one else was coming forward. The applicant was affected by the pitiable condition of the widowed mother who had been deprived of the Company of his son. These facts plus the fact that all possible efforts have been made by the applicant to search out the accused, in which connection he had gone to Lahore and other places where the relatives of the accused reside, make .Out a case for leniency.
10. In view of the facts brought out by the applicant in support of his plea for leniency I consider it a fit case for reducing the amount as regards forfeiture under the bond. In my view, the default on the part of the applicant in not producing the accused will be adequately punished by requiring him to pay a sum of Rs. 10,000 instead of Rs. 25,000. This Revision is allowed to this extent. The bond given by the applicant will be forfeited to the extent of Rs. 10,000. The applicant has already deposited the sum of Rs. 10,000 in this Court, which amount will be adjusted against the forfeiture of the bond.