Petitioner Mashuq Ali Khan stood surety for one Khalafat Shah who was facing trial under section 14 of West Pakistan Arms Ordinance, thus binding himself to produce him before the Court on every date of hearing and if the case was transferred to some other, before the other Court, failing which he had to forfeit Rs.2,000 to the State. This bond was executed when the case was pending in the Court of Ch. Jamshed Ahmad. Magistrate Section 30, Rawalpindi. Case was later transferred to the Court of Mr. Akhtar Joseph. The accused absented on 8-8-1967 and, therefore, the learned Magistrate forfeited the bond and initiated proceeding against the petitioner under section 514 of the Code of Criminal Procedure. As envisaged under subsection (1), section 514, the petitioner was called upon to pay the penalty thereof or to show cause why it should not be paid. Petitioner in response to this notice appeared before the learned Magistrate on 2-2-1968 and did not dispute the execution of the bond. He, however, neither produced the accused in Court nor showed any cause against forfeiture of the bond. The learned Magistrate accordingly forfeited his bond and in lieu thereof imposed a penalty of Rs. 5,00 against him. Petitioner preferred an appeal against this order before the learned District Magistrate, Rawalpindi, which ended in dismissal on 12-9-1968.
Hence this revision.
2. Learned counsel for the petitioner has raised three contentions in support of this petition; firstly, that as the learned Magistrate failed record reasons before the bond was forfeited, the subsequent proceeding stand vitiated; secondly, that the bond having been given to one particular Magistrate, the: petitioner cannot be held responsible if the accused did n: appear before the Magistrate who forfeited the bond; and finally, that the penalty imposed was excessive.
3. I have considered the submissions made by the learned counsel. The first contention raised relates to first part, of section, 514, Cr. P. C. Which provides "Whenever it is proved to the satisfaction of the Court by which a bond under this Code has been taken, or of the Court of a Magistrate of the first class . . . . . That such bond has been forfeited------" It is emphasised that the learned Magistrate before proceeding further was required to give reasons for the order. Much emphasis was placed on the word `proof'. The contention has not impressed me. There might be a case where an enquiry is envisaged before holding that the bonds stand forfeited. In such cases the Court may be required to record reasons. However, if the bond was regarding the appearance of the accused in Court, on his absence the bonds stood forfeited automatically. No further proof in the matter was required. In such case, therefore, it the Magistrate does not record reasons for the order, the same cannot be said to be in violation of this provision of law. Second contention, similarly, has also not impressed me. Perusal of the bond itself would show that the petitioner not only had bound himself to produce the accused before-the Court which accepted the bond but also before any other Court to whom the case was to be entrusted for disposal. He, therefore, cannot be heard to say that he was not responsible if the accused failed to appear in the transferee Court. The third contention raised, however, has merit. In Dildar and another v. The State (PLD 1963 SC 47), it is observed: "Where, however, we find defect in the proceeding taken against the appellants is in this namely, that no effort appears to have been made by the Courts below to enquire into the relevant matters affecting the degree of their responsibility. Sureties are not constituted as custodians of accused persons, and in the absence of proof to the contrary, it may generally be assumed that they do not gain by standing surety. 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 overcrowding 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 severety, which might lead to unwillingness on the part of neighbours and friends to come forward and give bail for persons under accusation. Finally, in assessing to what extent the bond should be forfeited, the Court would have regard to such matters as whether the sureties have any direct interest through financial or blood connection with the accused, whether they have connived at or procured the absence of the accused, and whether they have done their best to secure his attendance. We have accordingly thought fit to question the two sureties ourselves on these points."
The amount of penalty was thus reduced from Rs. 5,000 to Rs. 1,000. In the instant case, I feel, the penalty imposed is somewhat excessive. I, therefore, while maintaining the order of the two Courts below, reduce the amount of penalty from Rs. 500 to Rs. 200.