JUDGMENT SAJJAD AHMED SIPRA, J. - The present criminal revision petition is directed against the judgment dated 16th October, 1989, passed by the learned Additional Sessions Judge, Mianwali, whereby he imposed the penalty of Rs. 50,000/- each under Section 514 Cr.P.C, on the petitioners.
2. The brief facts leading to the present revision are that the petitioners had stood sureties in the sum of Rs. 75,000/- for one Muhammad Aslam accused under Section 302 P.P.C, vide F.I.R. No: 145, dated 28.11.1982 at Police Station Mochh, District Mianwali, and that as the said accused, Muhammad Aslam abstained himself from appearing before the learned trial Court on successive dates of hearing for a considerable length of time, whereupon the learned trial Court called upon the present petitioners, the sureties of the said accused in the sum of Rs. 75,000/-, and show-cause as to why proceedings under Section 514 Cr.P.C, should not be taken against them.
3. After issuance of the show-cause notice stated above, and after having heard the petitioners, the learned trial Court imposed a penalty of Rs. 50,000/- each on the petitioners. Hence the present criminal revision petition.
4. The learned counsel for the petitioners contends for setting aside the impugned order on the following grounds:-
(i) That the petitioners produced documentary evidence (annex. 'B') in Persian and translation thereof (Annex 'C' in Urdu), which had proved that the accused, Muhammad Aslam, for whom the petitioners were the sureties, had joined the War in Afghanistan on the side of the Resistance, and that, according to the documents referred to, the said accused was either in the custody of the opposing side or had died in battle, and, therefore, the petitioners could not be held responsible for his absence.
(ii) That it was further argued that under the circumstances, it was beyond the control of the petitioners to ensure the appearance of the said Muhammad Aslam accused before the trial Court, and it was further argued that, till date, the whereabouts of the said accused, Muhammad Aslam are not known and neither his family nor 'the petitioners have received any information about him.
In this respect, attention was drawn to the evidence of Muhammad Akbar (DW.3) the real brother of the said accused, Muhammad Aslam, and Haji Aamal Khan (DW. 4).
(iii) That the petitioners had stood sureties through mere benevolence and not for any financial gain, and with bona fide intentions, to be of assistance to a fellow being.
(iv) That the penalty imposed, even if called for, under the facts and circumstances of the case is excessive.
In this respect, the learned counsel for the petitioners relied upon Muhammad Aslam vs. The State (1986 P.Cr.L.J. 2509)(Lahore), Talib Hussain vs. The State (1977 P.Cr.L.J. 940)(Lahore), Dildar and another vs. The State (PLD 1963 Supreme Court 47) and Sardar Khan vs. The Crown (PLD 1952 Lahore 645). It was pointed out that in all these authorities relied upon, the penalty imposed varied from l/5th to l/20th of the amount of the surety.
5. The learned counsel for the State opposed the present criminal revision petition and pointed out that it was incumbent upon the petitioners as sureties to ensure that the accused, Muhammad Aslam did not abstain from appearing before the Court on the dates of hearing, and that the failure of the petitioners to by vigilant enough has resulted in the said accused taking of for an adventure. Therefore, the learned counsel for the State argued that the law does not make any distinction in the absence of an accused being for reasons idealogical or otherwise, and that in the present case the learned trial Court has applied the law correctly, and that no illegality or material irregularity has been pointed out that may call for interference under the revisional jurisdiction.
6. The learned counsel for the State, however, conceded that under the facts and circumstances of the case the penalty imposed may be reduced in view of the authorities relied upon by the learned counsel for the petitioners. The learned counsel for the State very fairly conceded that he has not been able to get hold of any authority to refute the contentions of the learned counsel for the petitioners for reduction of the penalty amount.
7. In view of what has been stated above, as the petitioners had acted out of mere benevolence and not for any financial gain, and placing reliance on the authorities cited, penalty of Rs. 50,000/-, being excessive is hereby reduced to l/20th of the amount of surety of Rs.75,000/-, therefore, the impugned order is modified to the extent that the penalty of Rs. 50,000/- is hereby reduced to Rs.
3,750/- each, and in this respect, in particular, reliance is placed on Sardar Khan vs. The Crown (PLD 1952 Lahore 645). Wherein the penalty imposed was Rs. 5,000/-, that being the amount of surety but was reduced to Rs. 250/- only, while observing that the Court should be neither lenient nor lean in direction of severity.