' The petitioner Jehangir. Khan and Baqri, petitioner in Criminal Revision No,45 of 1996 stood sureties for Rab Nawaz son of Muhammad Ali, caste Ranjha resident of Bakhowal, Tehsil Bhalwal, District Sargodha and said Rab Nawaz was released on bail. The petitioners stood sureties in the sum of Rs,10,00,000 each. The said accused absconded and failed to appear in Court.
2. Proceedings under section 514, Cr.P.C. Were initiated by Sessions Judge, Sargodha. Notices to both the petitioners were separately issued on 4-12-1995. Both the petitioners appeared in the Court of Sessions Judge, Sargodha and filed their reply to the notice and prayed for vacation of notice. The Sessions Judge, however, after hearing the petitioners and District Attorney, forfeited the surety bonds of the petitioners to the extent of Rs,90,000 each, by a single order and the said order has been impugned in Criminal Revisions Nos.44 of 1996 and 45 of 1996 separately. Both the revision petitions are proposed to be disposed of vide this single judgment.
2. It has been submitted by the learned counsel for the petitioners that the petitioners were not related to Rab Nawaz son of Muhammad Ali accused; they had been taking all measures for the production of the absconding accused; they had no direct interest in the matter nor there was any blood relationship between the absconding accused and the sureties and that they secured no pecuniary benefit by standing sureties to the said accused and that the same was an act of benevolence and sympathy to enable the incarcerated accused to come out of judicial lock-up, join his family and undertake his normal profession apart from defending his case. It was also contended that the forfeiture of the bonds was not justified in law and that the propriety was against forfeiture of 90% of the bond amount and that the forfeiture was excessive as against the poor petitioners.
3. The learned counsel appearing on behalf of the State has opposed the -application. He has submitted that both the revision petitioners were aware of the previous conduct of the absconding accused and that they had consciously stood sureties and deserve no concession and that the impugned order was neither perverse nor improper.
4. I have heard the arguments addressed at the bar and I have also gone through the order. One of grounds taken by the Lower Court was that, "Keeping in view the circumstances of this case and the rise in the graph of the crime..." and in my view rise in the graph of the crime was no reason for forfeiture of the surety bonds to the extent of 90% i,e, Rs,90,000 each. I however, do not see any illegality or perversity in the order of forfeiting the surety bonds. However, the point of forfeiture being excessive is worth consideration. Both the petitioners are agriculturists. They do not belong to the village of the absconding accused whose sureties they stood and filed their bonds. It is also not the case of the State that the petitioners were either related to the absconding accused or they had secured any pecuniary benefit. Their Lordships had laid down golden principle in Dildar and another v. The State PLD 1963 SC 47. Their Lordships observed:-- ' ... 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. At the same time, the release of accused persons on bail assists in the administration of justice by preventing over-crowding 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 hand, undue severity, which might teed to unwillingness on the part Of neighbors 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 attendance. These matters have not been enquired into by the Courts below...." (Underlining is mine).
5. The petitioners had in their replies before the Sessions Court specifically pleaded that they had constantly undertaken search of the absconding accused and that no stone was left unturned by them in looking and searching the said accused and they were always ready to produce. The same if found out. The impugned order is silent on this point. Reply to the notice was filed by the petitioners on 17-1-1996 and it appears that the Sessions Judge did not allow any further opportunity to the present petitioners in locating and finding out the absconding accused and on 22-1-1996 forfeited the surety bonds:
6. From the record it is proved that Rab Nawaz absconding accused belonged to village Bakhowal Tehsil Bhalwal whereas Jehangir Khan petitioner was resident of Khumb Nao and Baqri petitioner in Criminal Revision. No,45 of 1996 was resident of Khamb Kunha. There could be no community of interest between two sureties and the absconding accused. Ex facie this fact had also been lost sight of by the Sessions Judge.
7. Keeping in view the facts and circumstances narrated above I feel that balance can only be kept between undue leniency and undue severity only by taking into consideration the financial status of the petitioners and their profession's. They admittedly were the tillers of the land and had acted through benevolence and sympathy for the accused in standing sureties and filing their surety bonds. The ends of justice are however, to be secured and I feel that the petitioners in both the criminal revisions shall be adequately punished by requiring each of them to pay Rs,10,000 each as forfeited amount. The revision petitions are accordingly accepted to that extent only.