' Faqir Khan son of Ghafar Khan caste Pathan, resident of Pind Jamal Khan, Tehsil and District Haripur brought the present revision petition against the order of the learned Additional Sessions Judge, Haripur who by his order, dated 4-3-1998 reduced the amount of Rs,1,00,000 to Rs,20,000 as surety amount executed by Muhammad Safeer son of Matloob Khan respondent in case F.I.R.
No,378, dated 24-11-1997 for 'offence under section 302/34, P.P.C. Of Police Station, Kotnajibullah.
2. The facts of the case are that Muhammad Safeer respondent along with one Kala Khan stood sureties for Muhammad Rafique his uncle who was an accused in the aforementioned case wherein he was directly charged for effective firing at the deceased. After the registration of the aforesaid case Muhammad Rafique accused applied for bail before arrest before the Additional Sessions Judge, Haripur and he was allowed pre-arrest bail. In that proceedings respondent Muhammad Safeer and Kala Khan stood sureties for Muhammad Rafique accused and executed bail bonds itythe sum of Rs,1,00,000 with two sureties. The case when came up for, the confirmation of the bail, Muhammad Rafique accused jumped the bail and absconded by failing to appear before the Court. Upon the absence of the said accused the learned Additional Sessions Judge, Haripur vide his order, dated 3-12-1997 withdrew the orders of interim bail, forfeited the bail bond and directed the Judicial Magistrate, Haripur to proceed against the sureties in accordance with law. The learned Judicial Magistrate initiated proceedings under section 514, Cr.P.C. Against the sureties, namely, Muhammad Safeer and Kala Khan. They were given time to produce the accused but they failed to do so. In the aforesaid proceedings Muhammad Safeer had requested the Judicial Magistrate that he may be given one month's time to produce the accused but he could not do so. Consequently, on 14-2-1998 in his statement before the Judicial Magistrate, Muhammad Safeer showed his inability in finality to produce the accused upon which the Judicial Magistrate was constrained to direct that he should deposit the bail amount of Rs,1,00,000 or in default of which he was sentenced to six months' S.I. The other surety, namely, Kala Khan did not appear before the learned Judicial Magistrate, therefore, notice of his attendance was issued for 13-3-1998.
Disatisfied with the orders of the Judicial Magistrate, Muhammad Safeer preferred an appeal before the learned Additional Sessions Judge, Haripur wherein he challenged the propriety and validity of the judgment which he had impugned. The learned Additional Sessions Judge while passing the impugned order:dated 4-3-1998 has observed that there is no material on the record that Muhammad Safeer had stood surety for the accused for any monetary gain or that he had any hands or interest in the abscondence of the accused. Therefore, while taking a lenient view of the forfeiture of the order in respect of the amount of Rs,1,00,000 he reduced the same to Rs,20,000 or in default to undergo S.I. For two months. It is stated at the Bar that Muhammad Safeer could .Not deposit the reduced amount of Rs,20,000 and he preferred to undergo two months' S.1. Which he has already exhausted. Feeling aggrieved of the orders of the learned Additional Sessions Judge Faqir petitioner has preferred the present revision petition.
3. I have heard the learned counsel for both the parties and the learned Assistant Advocate- General for State. The learned counsel for the petitioner argued that since Muhammad Rafique was the paternal-uncle of respondent Muhammad Safeer who was charged for effective firing at the deceased had to, face the consequences of murder, therefore, Muhammad Safeer was instrumental in providing a chance for the abscondence of the accused after they realized that there was a prima facie case available against him and his bail would not be confirmed. Learned counsel further contended that sufficient opportunity was given to the respondent to produce the accused but he failed to do so. The learned counsel for the petitioner also submitted that the learned Sessions Judge had taken a very lenient view of the matter as according to him the law in respect of the confiscation of bail bond has now been changed by the superior Courts of the country. He, therefore, relied on Zeeshan Kazmi v. The State PLD 1997 SC page 267 wherein it has been observed:-- "Once an accused person jumps bail bond, the entire surety amount becomes liable to be forfeited in the absence of any mitigating circumstances---Courts in view of bleak scenario which has emerged, with the passage of time on account of the lack of respect of the rule of law, and because of the unprecedent continuous steep inflationary tendency resulting in the loss of money value, should not show any leniency while forfeiting bail bond amount---Approach of Courts should be dynamic and progressive-oriented with the desire to discourage the accused persons to jump bail bond.
' The Court further observed in the aforesaid case, that; ' Surety was father-in-law of the accused and, therefore, he was in a better position to produce the accused than a stranger---Surety was provided opportunities to secure attendance of accused but he failed---Supreme Court, in view of such legal and factual position, was pleased to order the forfeiture of the full amount of the bail bond (Rs,2,00,000).
' The learned Assistant Advocate-General also was of the view that in view of the changed circumstances and trend adopted by the Honourable Supreme Court leniency should not be adopted in cases of bail. He, therefore, relied on Abdul Bari v. Malik Amin Jan and others NLR 1998
(sic) 344 in which there was a conflicting decision with regard to the same matter pending before the apex Court but after the matter was referred to the Referee Judge the majority decision was of the view that in cases of forfeiture of bond lenient view should be discouraged and full amount shall be forfeited. The relevant portion of the judgment from page 345 is reproduced as follows:-- "Again the discretion in reduction of the amount of bail bonds to the extent of 1/4th or 1/5th is being taken in routine, although the power of determining the extent to which the penalty should be exacted should be reasonably exercised. In the context of deteriorating law and order situation prevalent in the country, the Courts should be conscious of the hazards of release of accused who are dare-devils like those in the present case to the knowledge of the sureties and then let them off at their own behest on forfeiture of mere 25% of the amount of bond. To our surprise, the learned Advocate-General who represented the interest of the State has also not looked into the background of the case in its proper perspective and had supported the impugned orders of the Court also in routine exhibiting dismaying indifference."
4. In the case in hand there are reasons for Muhammad Safeer respondent to come to the rescue of his uncle, namely, Muhammad Rafique to facilitate his ascendance in a case wherein he was directly charged and which entails conviction on a capital charge though he was in a better position to produce him before the Court in lieu of his undertaking as surety. There is no legal embargo that the amount of bail bonds in full cannot be forfeited. In a case where an accused person jumps bail bond, the entire surety amount becomes liable to confiscation.
5. As such I am inclined to determine that in the instant case the learned Additional Sessions Judge should not have taken a lenient view, therefore, while accepting the revision petition I set aside the orders of the learned Additional Sessions Judge, dated 4-3-1998 in connection with the reduction of the bail amount and restore the orders of the learned Judicial Magistrate, dated 14-2-1998.