This criminal revision is directed against the order, dated 16-2-1997 whereby the petitioners Amanullah and Tajeer Gul were directed to deposit the forfeited amount of Rs.1,00,000 each within a period of one month.
2. The petitioners stood sureties for. Accused Sanaullah charged alongwith others under section 379/411, P.P.C. Read with section 14 of the Offences PCr.0 Against Property (Enforcement of Hudood) Ordinance, 1979 vide F.I.R. No.914, dated 11-10-1994 registered at Police Station "B" Division, Mardan. After completion of investigation in the case challan was submitted to the Court of Sessions for trial. The learned Additional Sessions Judge, Mardan, summoned the accused Muzaffar, Asif, Abdul Wahab, Ali Gohar and Sanaullah. All the four accused attended the Court except Sanaullah accused who was reported to have absconded in another case of Qatl-e-Amd registered against him during the investigation of the instant case. He was, therefore, proceeded under section 512, Cr.P.C. The petitioners/sureties were served with show-cause notices as provided under section 514, Cr.P.C. Both the petitioners/sureties submitted their reply. The petitioner Amanullah. In his reply submitted that accused Sanaullah is his real son and he stood surety due to his close relationship; that he did not stand surety for the accused for financial benefit and nor the accused absconded with his connivance; and that the complainant in the case has pardoned the accused and all other accused who faced the trial were acquitted. The petitioner Tajeer Gul in his reply took the stance that petitioner Amanullah is the father of the accused Sanaullah and that he stood surety for the sake of Amanullah petitioner; that he stood surety on humanitarian grounds as both the petitioners resided in the same Mohallah. The learned Additional Sessions Judge, as stated above, ordered the forfeiture of the entire to be deposited in equal by the petitioners.
The learned counsel for the petitioners contended before me that the impugned order is very harsh and the learned trial Court has not considered at all the explanation furnished by the petitioners in their reply. He also contended that accused Sanaullah did not abscond in the instant case but he did in some other case during the investigation of the present case. He further, contended that even his abscondence in the subsequently registered case is due to fear although he is too innocent in the subsequent case. The learned counsel submitted that both the petitioners are poor labourers and hardly earn their livelihood and feed their families; that they stood sureties for the sake of close relationship of father and son between petitioner Amanullah and accused B Sanaullah; and while petitioner Tajeer Gul stood surety for the sake of Amanullah; that even the burden to pay the forfeited amount shall also be borne by the petitioner Amanullah. The learned counsel lastly contended that had the accused Sanaullah either not been charged in the subsequent case of Qatl-e-Amd or had he been in the control of the sureties he must have been produced because there was no likelihood of his conviction in the case as the complainant had pardoned his co-accused in the case and since co-accused of Sanaullah have already been acquitted by the learned trial Court, he must have been acquitted.
3. The learned counsel appearing on behalf of the State did not object to the reduction of penalty imposed on the petitioners. However, he supported the impugned order to the extent of fixing liability on the petitioners.
4. After hearing the learned counsel for the parties and going through the IC PG'. LI record I have come to the conclusion that though the petitioners were liable to pay the forfeited amount but keeping in view the circumstances of the case the learned trial Court had exceeded while ordering the forfeiture of the entire amount of Rs.1,00,000 each. With regard to quantum of amount to be forfeited the Court has to look in certain facts and as held by their Lordships of the Supreme Court in the case reported as Dildar and another v. The State PLD 1963 SC 47 that balance is to be kept between undue leniency and undue severity. The relevant portion of the cited judgment is reproduced below:-- "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 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 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 hand, 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 attendance. 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. The blood relation with the accused and the financial position of the sureties is also a relevant factor for determination of quantum of forfeiture. Reference in this connection is made to the case of Bahadur Khan v. The State 1976 PCr.L1 1283 wherein his Lordship of the Lahore High Court observed as under:-- "I am, however, inclined to agree with the petitioner's prayer that a lenient view of the matter should be taken because he (Bahadur Khan petitioner) had stood surety for his real son and that he is only a peon in the Tehsil with a normal salary. It has been held in Dildar v. State PLD 1963 SC 49 that in such cases a balance be kept between undue leniency and undue severity and assessing as to what extent the bond should be fcrfeited. The Court should have regarded in such matters as to whether the surety is acting through mere benevolence on behalf of the accused and where they have shown their best to secure his attendance. In the present case the petitioner had stood surety for his own real son. There is nothing on the record to show that he had himself connived at his absence from the Court. As a matter of fact he tried his best to produce his son."
Yet in another case reported as Muhammad Khan v. The State 1986 PCr.LJ 2028 it was held that since the petitioner had stood surety not for monetary benefit, therefore, there was no connivance about the disappearance of the accused alleged against the surety. The amount to be confiscated in favour of the State was, therefore, reduced from rupees fifty thousand to that of rupees five thousand only. Similarly in Sardar Khan and another v. The State 1988 PCr.LJ 447 his Lordship has reduced the forfeiture amount of the bonds from rupees ten thousand to rupees three thousand only, although the accused had escaped to the tribal territory after being charged in the murder case but there was no connivance of surety-petitioner. In the case of Muhammad Shah and others v. The State 1994 PCr.LJ 2316 it was observed that as per facts available on record there is nothing to suggest that the surety had any other consideration except the benevolence of the accused and, therefore, the forfeited amount was reduced from rupees five thousand to rupees five hundred only.
7. In view of the foregoing discussion, I have no hesitation in maintaining the order of forfeiture but to reduce the same to 1/10th of the total bail bonds. The petitioners shall be liable to pay Rs.10,000 each. With this modification in the order of forfeiture of bonds, this revision petition fails and is hereby dismissed alongwith Criminal Miscellaneous No.12 of 1997.