SARDAR MUHAMMAD SADIQ KHAN, J. --- The instant appeal arises out of the judgment of the Shariat Court dated 19.10.2010 whereby the judgment of the Trial Court has been upheld and the revision petition filed by the appellant herein has been dismissed.
2. Precise summary of facts giving rise to the instant appeal is that the real respondent stood surety for Arshad Hussain who alongwith other accused was charged for commission of the offences under Sections 364, 324, 337/34, APC. The accused Arshad Hussain was apprehended by Afzalpur Police. He moved an application for bail before the District Criminal Court Mirpur on 9.8.2008. He was admitted to bail vide order dated 24.9.2008 on surety bond of Rs, 300,000/- (three lac). Wajid Hussain, the real respondent herein stood surety for Arshad Hussain. After getting released on bail, the accused absconded and he was proceeded under Section 512. Cr.P.C. The surety bond was confiscated and a show-cause notice was issued to real respondent under Section 514, Cr.P.C. for recovery of forfeited amount. The respondent (surety) submitted written objections that the accused has gone to England for his medical check-up and he will produce him in the Court when he returns back. The respondent also submitted that he is a poor man, therefore, unable to pay the whole amount of surety, thus, he is entitled to be treated with leniency.
The Trial Court, after hearing the parties, ordered the surety to deposit Rs, 75000/- vide order dated 5.11.2009. The appellant challenged the aforesaid order of the Trial Court through a revision petition in the Shariat Court. The Shariat Court upheld the order of the Trial Court through the impugned judgment, hence, this appeal.
3. Ch. Khalid Yousaf, Advocate, the learned counsel for the appellant opposed the order of the Shariat Court as well as Trial Court on different grounds. He submitted that Arshad Hussain, accused is involved in heinous offences. He moved an application for bail and after getting released. has made good to escape, thereafter did not attend the Court. He further submitted that the real respondent stood surety for Arshad Hussain accused and undertook to ensure his appearance in the Court on each and every date of hearing but with the connivance facilitated the accused in absconsion. The accused Arshad Hussain has been declared absconder and fugitive from law. therefore, Wajid Hussain, surety, is not entitled to any leniency in realizing the amount of surety. He further argued that the appeal may be accepted and by setting aside the judgment of the Shariat Court as well as Trial Court. the full amount of surety i,e. Rs, 300,000/- (three lacs) may be forfeited and realized.
4. While controverting the arguments submitted by learned counsel for the appellant, Mr. Muhammad Yunas Arvi, Advocate, the learned counsel for real respondent defended the impugned judgment on all counts. He submitted that the respondent stood surety for the accused out of benevolence and not for any personal gains and despite his best efforts he could not trace out the accused to produce him before the.Court. According to the learned counsel. the respondent is a poor person and deserves leniency in the matter of confiscation of the bail bond.
He further contended that the Trial Court as well as the Shariat Court has exercised its discretion rightly and in accordance with law which does not call for interference by this Court, therefore, the appeal may be dismissed.
5. Mr. Muzaffar Ali Zaffar, the learned Additional Ad vocate-General owned and supported the arguments submitted by the learned counsel for the appellant. He argued that the appeal may be accepted and the judgment of the Shariat Court dated 19.10.2010 may be set aside.
6. We have heard the learned counsel for the parties and perused the record of the case, made available. It appears from the record that the Trial Court while confiscating the bail bond, proceeded against the accused respondent under Section 512 Cr.P.C. and declared him as offender and fugitive from law. The real respondent herein was proceeded under Section 514.
Cr.P.C. and after obtaining written objections, the bail bond was confiscated by the Trial Court by reducing the amount of surety from Rs, 300,000/- to Rs, 75000/-. The complainant-appellant preferred an appeal in the Shariat Court against reduction of the surety amount by the Trial Court.
The Shariat Court upheld the order of the Trial Court through the impugned order.
7. It may be stated here that the total amount of surety bond is Rs, 300.000/- (three lac) whereas the Trial Court, on absconsion of accused. while forfeiting the surety bond executed by Wajid Hussain, reduced the amount and directed him to deposit Rs, 75000/- which becomes 25% of the total amount of surety. On a revision petition filed by the complainant-appellant, the Shariat. Court maintained the order of Trial Court. No genuine reason has been given by both the Courts below for reduction of the amount of surety. It has been consistently observed by this Court in number of cases that the accused, after getting released on bail, usually make good their escape by absconding. The Courts of law, while proceeding against the surety, shall forfeit whole amount of surety so as the trend be discouraged. The reduction of 25% in the case in hand is not maintainable. Our this view finds support from the case titled Abdul Bari v. Malik Antir Jan, reported as NLR 1998 344, wherein the Supreme Court of Pakistan has held that:--- .. the plea that no monetary gain was involved and they offered security/surety on humanitarian grounds. cannot be accepted as Court was not taken into confidence as regards the essential factual position e.g., cause or reason for furnishing surety on account of long time acquaintance or other relationship, if any, existing between the respondents herein and the accused. The factual foundation of the plea was thus not established.
It is further held by the Court in the same judgment that:--- "....It will be noted that such an inquiry, as was made from the learned counsel during the hearing, was also made by the learned Judges in Dildar's case (supra) and on the information given, conclusions were drawn. In the instant case, the conclusion that forfeiture of 25% of the amount of surety bonds will serve the ends of justice, cannot, therefore, be sustained."
In the case in hand, the Trial Court has reduced the amount of surety and ordered to deposit 25% of the total amount of surety bond which is against the law laid down by the apex Court.
8. It will be pertinent to mention here that it has become routine that the accused jump away of the bail and abscond rather facing trials. The sureties have become tool for facilitating the criminals in absconsion, therefore, they are not entitled to any leniency in the matter of forfeiture of their bail bonds. The Courts of law are under the obligations to take stringent measures against those who stand surety to undertake to produce the accused on each and every date of hearing but provide safe passage to the criminals in the garb of bail. Therefore, total amount of surety must be forfeited to discourage the tendency. Our this view finds support from the case titled Muhammad Ayyub v.
Muzaffar Khan & others reported as 2004 SCR 547 wherein it is observed as under:--- "... 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 fur its deposit in the Government Treasury..."
The quoted observation of this Court reveals that the surety is bound to produce the accused before the Court. In case of failure in producing the accused before the Court, forfeiture of total amount of surety is in accordance with law . In the case in hand, the accused. after getting released on bail has absconded. It was duty of Wajid Hussain, surety to produce him before the Court but he failed. The Trial Court, instead of confiscating the total amount of surety bonds which is Rs, 300,000/-, (three lacs), forfeited 25% i,e. Rs, 75000/,
9. It may be mentioned here that the reason given by the Trial Court that the respondent is a poor man, requires serious consideration. We are afraid to agree with the findings recorded by the Trial Court for reduction of amount of surety. We cannot support the contention of learned counsel for the appellant that his client is a poor man and is entitled to leniency by the Court in forfeiture and realization of the amount of surety bonds. We have perused the objections tiled by Wajid Hussain, surety. The only averment made in the objections is that the accused has gone to England for medical checkup as soon as in Pakistan, he arrives in Pakistan, he will produce him in the Court. for the time being the accused is out of his reach. In the objections, the respondent has not taken any plea that he is a poor man and deserves leniency of the Court regarding forfeiture of the amount of surety. The Trial Court itself mentioned in the order dated 5.11.2009 that the surety is a poor man.
The Shariat Court also failed to consider this point while recording the impugned order dated 19.10.2010. In our estimation. the Trial Court as well as Shariat Court, wrongly exercised the judicial discretion while reducing the amount of surety bonds. It is settled principle of criminal Jurisprudence that the judicial discre tion is to be exercised keeping in view over all circumstances and the law on the suhject. In the case in hand the Trial Court as well as the Shariat Court have arbitrarily reduced the amount of surety bonds, therefore, we are unable to maintain the findings recorded by both the Courts below. Reference can be made to a case titled Muhammad Younas v.
Robkar-e-Adalat, reported as PLJ 2001 SC (AJK) 178, wherein both the Courts below confiscated the whole amount of surety bonds. This Court upheld the findings recorded by both the Courts below in the following manner:--- "...the Trial Court and Shariat Court have confiscated the whole amount of Rs, 10 lac 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, sureties do not deserve any leniency in the matter of confiscation of their surety bonds."
10.We have noted with serious concern that as per record, the accused Arshad Hussain is real brother of Wajid Hussain, surety. It can he safely assumed that Wajid Hussain connived with his brother and facilitated him in absconsion. Moreover, the objections filed by the respondent in the Trail Court also prove the fact that Wajid Hussain was aware that Arshad Hussain has gone to United Kingdom for treatment. It was duty of the Trial Court as well as the Shariat Court to consider this aspect of the matter while recording the order for forfeiting the amount of surely bonds.
Keeping in view over all circumstances and nature of the offences committed by the accused Arshad Hussain, we have no hesitation in holding that the order of Trial Court as well as Shariat C lull has been recorded in an arbitrary manner without going through the material on record and the nature of crime committed by the accused Arshad Hussain. Both the Courts below have also not taken into consideration the conduct of the accused and his surety while recording the order for reduction of the amount of surety bonds. Therefore, the order of Trial Court as well as Shariat Court are liable to be set aside, In view of above, the appeal is accepted and the order of Trial Court dated 5.11.2009 as well as the order of Shariat Court dated 19.10.2010 is set aside and the total amount of surety bonds to the tune of Rs, 300,000/- (three lacs) is forfeited. Wajid Hussain, surety has already deposited Rs, 75000/-, he is directed to deposit the remaining amount of Rs, 2,25,000/- within a period of one month failing which the surety (Wajid Hussain) shall be sent to judicial loci-up.