ALLAH DINO G. MEMON, J.-This is an application under Section 435 read with section 439 Cr.P.C, challenging the order passed by the learned Vth Additional Sessions Judge (South), Karachi.
2. The brief facts giving rise to the present Rev. Application are that the applicant had stood surety for accused Shehzad Ali in the sum of Rs.8,000/- before ACM Il(South), Karachi. Later on the case was sent up to the Sessions Court, and uItimately it came up before the learned Vth Additional Sessions Judge, Karachi (South), However, the accused absconded and when the applicant/surety came to know about it he applied to the learned trial Judge on 6th March, 1988, that he may be afforded a reasonable time to catch hold of the accused and produce him before the court.
Number of adjournments were granted to the applicant but he could not produce the accused.
That uItimately the applicant filed his explanation on 23rd May, 1988. The learned trial Judge after taking into consideration the explanation filed by the applicant forfeited the bond and ordered the applicant to deposit the entire amount of Rs.8000/-. The present Revision application is directed against the said order of forfeiture.
3. I have heared Mr. Faridul Haq, learned counsel appearing for the applicant, Mr. Zaheer Qureshi, learned counsel appearing for the State, and have gone through the documents produced with the Revision Application. It has been contended by Mr. Faridul Haq, learned counsel appearing for the applicant that the applicant had stood surety for the accused due to benevolence and that he had not gained any monetory benefit by standing surety for the accused. He has further contended that the applicant was in no way responsible for the abscondence of the accused and, therefore, forfeiture of bond to the extent of full amount was illegal. Insupport of his contentions, the learned counsel has relied upon 1986 P.Cr.L.J, page 2028, PLJ 1988(Criminal)Peshawar page 155 and NLR 1988 Criminal Law Judgment page 169, & 1963 S.C. P.47.
4. Mr. Zaheer Qureshi, learned counsel appearing for the State has contended that there was no evidence that the applicant had not gained any monetary benefit except his own explanation. That the accused was still at large and, therefore, the applicant was not entitled to any leniency with regard to forfeiture of bond.
5. I have considered the contentions of the learned counsel. The admitted position is that the applicant was granted number of adjournments to find out the accused, and to produce him before the Court but he could not be produced by him. The applicant has filed his explanation in the Court which is not supported by any affidavit. As far as the decisions relied upon by the learned Counsel for the applicant were concerned, no doubt, a lenient view was taken in all the three cases relied upon by the learned counsel for the applicant, but with utmost respect the decisions are distingusheable, in as much as in the case reported as Muhammad. Rashid Vs. The State, NLR 1988 Cr. Law Judgments page 169, the accused was produced in the Court by his mother and, therefore a lenient view as taken by the court in forfeiting the bond. In the case of Sardar Khan and another Vs. The State, PLD. 1988 Cr. C. Peshawar Page 155, while replying upon the case of Dildar Khan Vs. The State PLD 1963 SC. Page 47, the amount of forfeiture was reduced from Rs.10,000/- to RS.3,000/-.
In the case of Muhammad Khan Vs. The State,1986 P.Cr. LJ. Page 2028, while replying upon the case of Dildar Khan vs. The State, PLD. 1963 S.C. Page 47 the amount of forfeiture was reduced from Rs.50,000/- to Rs.5000/- on the ground that the appellant had stood surety for the accused out of charitable motive and had not derived any monetory benefit. I am sorry I do not agree with the view taken by the learned Judge in the last cited cases, in as much as the same is in conflict with the decision of their Lordships of the Supreme Court in the case of Dildar Khan vs. The State, PLD 1963 S.C page 47, It will be worthwhile to mention here that in the case of Dildar Khan Vs. The State their Lordships of the Supreme court were pleased to forfeit the bond to the extent of l/5th because on inquiries from the sureities it was disclosed that the accused Meer Jan for whom they had stood surety had died, but this aspect was not taken into consideration by the learned judge in the case of Muhammad Khan vs. The State.
6. In view of the assertion made by the appiicant/surety and the legal position, I am of the considered view that the ends of justice will amply meet if the amount of forfeiture is reduced from Rs.8000/- to Rs.4000/- Order accordingly.