' Bashir Hussain Shah, accused, was arrested in case F.T.R. No,157/72 under section 307/392/332/153, P.P.C. Registered at Police Station Saddar, Burewala. He was granted bail in the case in the sum of Rs,50,000 and Lal, petitioner herein, stood as surety from him and executed a bail bond accordingly on 24-12-1978 undertaking that if Bashir Hussain Shah aforementioned would not appear in Court then he shall pay Rs,50,000 as penalty. Bashir Hussain Shah aforesaid thereafter absented from the Court, hence these proceedings. Learned Court, therefore, sent for the petitioner surety and granted him time for producing the accused in Court but it was not done. Consequently, vide impugned order, dated 20-4-1980, learned Magistrate forfeited the surety bond and directed the petitioner to pay 50% of the surety amount, i,e,, Rs,2-5,000 within 7 days. Feeling aggrieved thereby the petitioner filed appeal in' the Court of District Magistrate who having observed that the petitioner had admitted the execution of the bond and evidently violated the condition thereof, as such the forfeiture of the bond was justified, but reduced the amount of penalty from Rs,25,000 to Rs,5,000 vide order, dated 29-6-1980. Feeling still dissatisfied the petitioner has filed the instant revision in this Court.
2. Learned counsel for the petitioner has submitted that Bashir Hussain Shah, aforementioned was arrested and concealed by AST Nom Hussain of Lala Musa Police Station (Gujrat) at the instance of S.S.P. NT ultan and that his father had been clamoring for his recovery and release both in the High Court and the Supreme Court, therefore, appearance of Bashir Hussain Shah in trial Court was obviously made impossible and likewise it was beyond control of the petitioner to produce him in Court. It is, therefore, urged that absence of Bashir Hussain Shah from Court was not wilful. Learned counsel has referred me to an order passed by the Supreme Court of Pakistan on 17-12-1979 on the application filed by Shah Sawar father of aforesaid Bashir Hussain Shah wherein direction was given to repeat Habeas Corpus petition before High Court as the police admitted that Bashir Hussain Shah was alive and would be produced after search. It is further stated after that the accused was produced by the police in the High Court during the proceedings of habeas corpus petition (Criminal Miscellaneous No,67-H of 1980) and then Bashir Hussain Shah was arrested, he was then acquitted by Magistrate Section 30, Burcwala on 29-6-1980. Learned counsel has further submitted that neither the petitioner has violated condition of the bond nor the accused had absented wilfully and that the abovenoted circumstances, constitute `just cause' for not recovering the amount of surety bond from him as penalty.
3. I have carefully considered the facts and circumstances of the case and find that there are cogent reasons to believe that the accused Bashir Hussain Shah had not wilfully absented from the Court, rather he was prevented by the police to appear in Court by having detained him secretly as is apparent from D.O. Letter No,18659, dated 9-5-1979 written by Muhammad Mubariz Khan S.S.P.
Multan, to Ch. Ali Asghar, S.P. Gujrat, of which Supreme Court of Pakistan also took notice in the order referred to above. In the circumstances, I find that sufficient cause for not recovering the amount of surety bond from the surety has been shown, therefore, this petition merits to be allowed. Consequently, the impugned order is set aside with the result that the petition is not liable for paying the surety amount of the bond executed by him by way of penalty.