This is an application which calls into question the legality and propriety of an order of the learned Additional Sessions Judge, Nawabshah, who, at the relevant time, was incharge as Sessions Judge.
2. The applicant had stood surety for one Ghous Bux before the' Court of Sessions, Nawabshah in the sum of Rs. 5,000 as the latter being an accused person in Sessions Case No. 19/72 had been released on bail in that sum.
3. On the 20th of November 1972 when the case was fixed the accused was absent and counsel who appeared for him also withdrew his power on that date and the learned Judge who was then incharge cancelled the bail of the accused and directed notice to issue to the applicant under section 514 of the Criminal Procedure Code and fixed the 4th of January 1973 as the next date. On that date the applicant appeared before the Court and informed the Court that the accused had joined the Pakistan Army and it was on that account that he had not appeared before the Court, the learned Judge passed an order directing that the bail bond be forfeited and issuing a show-cause notice to the surety, that is, the applicant, as to why the amount should not be recovered from him as penalty and adjourned the case to the 27th of March 1973. On this date also neither the accused nor his surety, the applicant was present and the case was again adjourned to the 2nd of May 1973. On this date, however, the accused appeared and prayed that he may be given time to furnish a fresh surety and time was given up to the 5th May 1973. On this date, that is, on the 2nd May 1973, the surety was also present and he undertook in writing that he would continue to be the surety for the accused up to the 5th of May 1973, and the learned Judge gave time up to that date for furnishing surety. On the 5th again both the accused and the surety were absent and the learned Judge forfeited the amount of the bond and also issued non-bailable warrants against the accused. In pursuance of this order another notice dated the 7th May 1973, went to the surety calling upon him to deposit the entire amount of Ra. 5,000 before the 17th May 1973. This notice being served, the surety appeared before the learned Judge, who was then incharge and whose order is now challenged before me, and claimed that his liability as a surety had ceased on the 2nd of May 1973 when he had produced the accused before the Court. This contention, the learned Judge did not accept and, holding that it was the date of the surety, when the accused remained absent on the 5th, to have approached the Court and asked for time, the bond was liable to be forfeited and, in view of the fact that the accused had remained absent on various dates and that the surety had not prayed that any amount of the penalty be remitted, he directed that the entire amount of the bond be recovered. It is against this order that the application in revision is brought.
4. The facts as they are stated in the application for revision are the same except that it is said that after the applicant appeared on the 4th of January and informed the Court that the accused had joined the Pakistan Army the case was adjourned to the 27th of March and then again to the 2nd of May 1973 on which date both the accused and the applicant appeared in Court and requested for time to furnish a fresh surety. It is admitted that on the 5th May neither appeared but it is not stated that the applicant had agreed, in writing, to continue to be a surety up to the 5th May. Since this has not been specifically' denied and even in Court the learned counsel did not challenge the correctness of what the learned Judge has stated I think I must hold that he was liable up to the 5th of May. In any case he was certainly liable on earlier dates when admittedly the accused person was absent. It is now claimed. As it was claimed before the learned Sessions Judge, that the applicant was under the impression that because upon the 2nd of May another surety was accepted therefore, he was relieved of all obligation is a contention which can hardly be accepted and is indeed not even clearly stated in the application for revision and owes more, I think, to the ingenuity of counsel who appears before me rather than to the facts of the case. In any view of the matter the applicant is certainly liable under his bond and even this argument was raised by counsel before me not for the purpose of persuading me that he was not legally liable but in order to show that a more lenient view should have been taken of the case than tile forfeiture of the entire amount.
5. I think there can be no doubt, whatever, that the surety is liable for the entire amount and that in law the learned Judge was quite competent to forfeit the whole sum. It does not necessarily, however, follow that the entire sum should have been forfeited; although the bond is in the nature of a contract the purpose of the bond is to ensure the presence of the accused person and not always to extract a penalty. Courts have always, therefore, looked into the attendant circumstances of a case to see how much of the bond ought to be forfeited and reliance was, therefore, quite rightly, placed by learned counsel upon a judgment of the Supreme Court in the case of Dildar v. State (PLD1963SC47) where it was observed: "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 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 ensur-- ing 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 band, undue severity, 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 attend--ance. 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.
6. Now the surety was not personally present before me and I had, therefore, no means of enquiring into the circumstances and was not, therefore, able to pursue the course of myself deciding as to how much of the amount should be forfeited. Clearly the learned Judge did not even into this question and I think the best course, therefore, for me is to remand this case back to the learned Judge for hearing the surety afresh and con--sidering all the circumstances and then deciding how much of the penalty be remitted and how much be recovered. Of course, if on all the circum-- stances the learned Judge comes to the view that this is one of those cases where the entire amount should be forfeited this order will not prevent him from doing so but then he must state his reasons adequately for taking that course.
7. I accordingly set aside the order of the learned Judge and remand the case back to him to decide how much of the bond should be recovered.