At the joint request of- the learned counsel for the petitioner and the learned Assistant Advocate- General instead of hearing the stay application, the main revision application is taken up. The applicant stood surety in the sum of Rs.20,000 for accused Saleh who was facing trial alongwith other under sections 353, 332, 323 and 504/36, P.P.C. In Sessions Case No. 47 of 1984.
2. The said accused failed to attend the proceedings on 3-9-1984, and on 8-10-1984, therefore, non-bailable warrant was issued against the accused and surety bond as forfeited and notice under section 514, Cr.P.C. Was ordered to be issued to the applicant.
On 25-10-1985 warrant issued against accused Saleh and notice to the applicant were returned unexecuted. Therefore, fresh warrant of arrest of accused. Saleh and notice to the applicant were ordered to be issued and the hearing was adjourned to 21-11-1984 when again accused Saleh was absent and the notice issued to the applicant was also returned un-served. Therefore, warrant of attachment of the movable property of the applicant was ordered.
3. Thereafter, on. 23-4-1985 the applicant produced accused Saleh who was remanded to jail custody. The applicant requested for mercy and prayed for recalling the order of attachment of his movable property which request was refused on the ground that no proper Revision application was filed and the writ of attachment was ordered to be repeated.
4. The applicant has, therefore, filed this application under section 439 read 'with section 561-A, Cr.P.C. Questioning the orders, dated 8-10-1984 and 21-11-1984.
5. Learned counsel has submitted that in forfeiting bond the learned-- Ist Additional Sessions Judge, Dadu, did not assess the extent to which the bond should have been forfeited. In support of the submission reliance is placed on the Supreme Court judgment in Dildar and others v. The State PLD 1963 SC 47. In the case relied upon it was observed by Cornelius, C.J. Who delivered the opinion of the Court at page 49 of the report as follows:- "Where, however, we find defect in the proceedings 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 decree 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. As 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 is to be held between undue leniency, which might lead to abuse of the procedure and into interference with justice in a large number of cases, and on the other hand, undue severity, which might lead to unwillingness on the part of neighbours and friends to come forward and give bail for persons 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. These matters have not been enquired into by the Courts below. We have accordingly thought fit to question the two sureties ourselves on these points."
Dildar ran a hotel in Karachi and came from the United Provinces of India originally. He became surety for Mir Jan at the request of one of his servants Zarin Khan Pathan, a relation of Mir Jan. Zarin Khan had been for Dildar for some 3 or 4 years. Relying on what Zarin Khan said, he stood surety.
Later on, Mir Jan disappeared and Zarin Khan also disappeared so that he was helpless in the matter of procuring Mr. Jan's attendance. On these facts the bond was ordered to be forfeited by the Supreme Court to the extent of Rs.1,000 only.
6. Reliance can also be placed on Banaras v. The State 1975 PCr.LJ 954 in which Tufail Ali A.
Rehman's, C.J. Following, the Supreme Court decision in Dildar v. The State remanded the case to lower Court to consider:- (1)Whether Sureties had any direct interest through financial or blood connection with accused; (2)Whether they connived with or procured absence accused; (3)Whether they did their best to secure accused's attendance, and directed the Court to consider the above circumstances and then to decide the extent to which the amount of the bond ought to be forfeited.
7. Reference may also be made to Aziz Rehman's v. The State 1975 P Cr. L J 58 wherein the amount of forfeiture of bond was reduced from Rs.2,000 to Rs.50 on consideration of the following facts as reported in the Judgment:- "The record shows that Luqman was produced in Court on 11-4-1973 while he was arrested by the Police much earlier, to be precise on 16-3-1973.
There is also an application on record that the applicant was trying his best to secure the attendance of Luqman, and he had also asked for the issuance of warrant with Multan address. a The application also shows that he had been to house of Luqman and had contacted his family members. Actually, the arrest of Luqman came to be affected within three days of the forfeiture."
The forfeiture of the bond would not be open to any challenge in the circumstances of the case as it was the bounden duty of the applicant to keep control over the movements of Luqman and see to it that he was attending the Court on all the dates of hearing. However, in view of the circumstances disclosed, it was opened to the learned District Magistrate to exercise his discretion while hearing the appeal, which he dismissed under a misapprehension in default. To my mind, it is just a dereliction of duty on the part of the applicant and the time in between the notice and the forfeiture was not long. As observed earlier, he was making frantic i.e. Efforts to fulfil his obligations.
In all probability, and as asserted the arrest of Luqman was through his efforts, a proposition which has not been rebutted by any counter affidavit."
3. Reference may also be made to a recent judgment of this Court in Syed Nazar Ali Shah v. The State 1983 P Cr. L J 1472 wherein following the rule laid down by the Supreme Court in Dildar's case, the amount of forfeited surety bond was reduced from Rs.10,000 to Rs.3,000.
9. In the present case the circumstances required to be considered cannot be considered by me as was done in Dildar's case or in Banaras's case as the applicant is not present and the impugned orders do not advert to the same. I would, therefore, set aside the impugned orders and remand the case to the learned Judge to consider the above-stated circumstances after notice to the applicant and then decided how much amount of the bond should be recovered.