' MUHAMMAD YUNUS SURAKHVI, J.--- This appeal has been directed against an order passed by the Shariat Court of Azad Jammu and Kashmir on 1st of August, 1997, whereby accepting the appeal filed by respondent No,1, appellants Nos.1 and 2 were ordered to deposit Rs,1,00,000 and Rs,15,000 respectively as a result of forfeiture of their bail bonds executed by them.
2. The facts, giving rise to the present appeal, are that accused Shah Nawaz and others were facing their trial under section 302/34, A.P.C. Read with section 15 of the Islamic Penal Laws Enforcement Act before Additional Criminal Court Pallandri. During the pendency of proceedings, accused Aurang Zaib was allowed bail in sum of Rs,1,50,000 on his furnishing bail bond of Rs,1,50,000 with two sureties severally and jointly by the trial Court. The appellants Haji Muhammad Sharif and Ghaus Muhammad stood sureties for the said accused and on their furnishing bail bonds the said accused was released on bail. When the case was at the stage of arguments the accused Aurang Zaib jumped of the bail. The bonds of the sureties were forfeited. The trial Court issued notices to the appellants sureties to pay the amount forfeited or to show-cause as to why the said amount should not be recovered from them. Finally after taking necessary proceedings the trial Court vide its order, dated 16-8-1995 reduced the amount and the appellants were directed to pay the amount of Rs,5,000 from each (Rs,10,000 in all). Against the aforesaid order the State filed an appeal before the High Court which was dismissed in default on 18-9-1995. An application for restoration of aforesaid appeal was filed on 20-9-1995 which too was dismissed vide order, dated 27-9-1995. The learned Judge of the High Court opined that as the matter pertains to jurisdiction of Shariat Court so the application stands disposed of accordingly. However, respondent No,1 being the heir of deceased filed an appeal against the order of the Additional District Criminal Court, Pallandri, dated 16-8-1995 before the Shariat Court on 22-4-1996. An application for condemnation of delay duly supported by an affidavit was also filed by respondent Zahir Hussain ,,Shah in which he duly explained the delay for filing the appeal. It was alleged in the application that on 18-4-1996
1. Went to Muzaffarabad in connection with his appeal wherefrom he was told that his appeal had been dismissed for non-prosecution and the application moved for its restoration had also been dismissed on 27-9-1995. Respondent on 18-4-1996 moved an application for getting the copy of judgments which were delivered to him on 27-9-1995. Then he went back to Pallandri and applied for getting the copy of order, dated 16-8-1995 which was delivered to the appellant on 21-4-1996.
On the very next day i,e, 22nd of April, 1996, the appeal was filed before the Shariat Court as such I the appeal was within time and the delay if any may be condoned. The memorandum of appeal and the application for condemnation of delay filed by the respondent were duly supported by his affidavit and the same was not controverted by the appellants.
3. A learned Judge in the Shariat Court vide his order impugned accepting the appeal, as said earlier, directed appellant No,1 to deposit Rs,1,00,000 and respondent No,2 Rs,15,000 in Government Treasury.
4. Raja Muhammad Hanif Khan, the learned counsel appearing on behalf of the appellants, contended that the appeal filed before the Shariat Court by respondents was clearly barred by limitation and there was no justifiable reason for the condonation of delay. State in the first instance lodged the appeal before the High Court which was not the proper forum and the same was dismissed in default. The subsequent application moved for restoration of the appeal was also dismissed for non-prosecution. Private respondent was not competent to file the appeal. The explanation given for not filing the appeal in time before the Shariat Court was neither cogent nor reasonable but the learned Shariat Court adopting a very harsh attitude enhanced the amount of Rs,5,000 to Rs,1,00,000 in the case of appellant No,1 and Rs,15,000 in case of respondent No,2. The learned counsel submitted that bail bonds are required with a view to enhance the cause of administration of justice so, therefore, the Courts while dealing with the cases of default should take lenient view of the matter. He has maintained that if the sureties are dealt with harshly, nobody would be prepared to stand surety for an accused person and, thus, it would hinder the process of administration of justice.
5. On the other hand Sardar Abdul Hamid Khan, the learned counsel for respondents, strenuously contended that appellants Nos.1 and 2 executed the bail bonds being fully alive to the fact that in case of ascendance or non-appearance of the accused they would be liable to pay the amount mentioned in the surety bonds. The learned counsel contended that the Shariat Court has already taken a lenient view despite the fact that both the appellants/sureties were jointly and severally liable for the whole amount for which they stood surety. As far the question of condo nation of delay it was sufficiently explained by the respondent and the moment he got the requisite copies of the relevant record he promptly filed the appeal before the appropriate forum. Moreover, the delay, if any, had been condoned by the Shariat Court so the same question cannot be reopened or the same cannot be disturbed by this Court.
6. We have given our due consideration to the arguments advanced by the learned counsel for the parties and perused the record made available with care.
At the very outset it may be pointed out that the Shariat Court condoned the delay in its best wisdom keeping in view the facts of the case and sufficient explanation given by the respondent in filing the appeal before the proper forum. The law by now is settled that once the delay is condoned by an authority below, the same cannot be reopened or disturbed by this Court.
Moreover, in our view the respondent has furnished sufficient explanation for not filing the appeal in time before the relevant forum. After getting the relevant copies and having the knowledge of the fate of his case the respondent who was not a party before any of the proceedings in the High Court filed the appeal before the Shariat Court in support of which he filed his duly sworn affidavit thereby verifying his averments. This affidavit of the respondent was not controverted by the appellants by filing a counter-affidavit. In this view of the matter, the objection raised by the learned counsel for the appellants, is hereby repelled.
7. It also stands resolved by numerous judgments of this Court that any 1 private aggrieved person can file an appeal in the Shariat Court against an order adversely affecting his interests.
8. On merits of the case it has been observed by us in various cases that trial Courts are usually extremely liberal in realizing or forfeiting the amount of bail bonds. Even no cogent reason was furnished by the trial Court in the instant case as to why an amount of Rs,5,000 each from both the appellants was ordered to be recovered when the bail bond was of Rs,1,50,000 binding them severely and jointly. We have also noticed a tendency that while releasing accused persons charged with the offence of murder or like heinous offences they are released on bail bonds of very small amount which practice is hardly desirable. A surety at the time of executing bail bond is always alive and aware of the fact that in case of non-appearance or ascendance of accused, he would be liable to pay the amount mentioned in the bail bond but at the time of realization of the amount in case of absence of accused very absurd and lame excuses are put forward for hindering the process of administration of justice thereby encouraging the ascendance of the accused person. In our considered view the trial Court took a lenient view at the time of releasing the accused on a bail bond of Rs,1,50,000 and thereafter on ascension of accused and the forfeiture of bail bond, the order for the recovery of amount of Rs,5,000 from each appellant surety without assigning any earthly reason was nothing short of a mockery tending to disparage the judicial system. This practice, we desire, will not be repeated in future.
9. In a case reported as Muhammad Rashid v. The State 1990 SCM R 227, it was held that sureties were responsible to pay the forfeited amount independent of other sureties. Besides, the Supreme Court also held that as the High Court had reduced the amount from Rs,50,000 to Rs,40,000, there were no grounds to give further concession to the sureties. The learned Judge also declined to follow the principle laid down in case reported as Dildar v. The State PLD 1963 SC 47 10.
10. In another unreported case of this Court entitled Faiz Alam v. Robkare-Adalat (Criminal Appeal No,9 of 1993), decided on 26-5-1993 the bail bond by the sureties was executed in the sum of Rs,2,00,000 each, the bail bond was forfeited and the trial Court ordered to pay Rs,50,000. An appeal was preferred to the Shariat Court seeking further deduction in the forfeited amount which was declined and the appeal was dismissed. An appeal was preferred before this Court against the judgment of the Shariat Court. The appeal was dismissed observing that the appellants had been already shown indulgence by the trial Court and no further leniency could be shown to them.
Coming to the present case it has also been stated that absconding accused is still absconding and is fugitive of law. Thus, taking into consideration overall circumstances of .The case it would serve the ends of justice if the impugned order passed by the Shariat Court is maintained, though we are of the opinion that the trial Court and to a certain extent the Shariat Court have already shown their indulgence despite the fact that both the appellants' sureties were jointly and severally responsible for the whole of the amount of surety bond. Since the discretion has been exercised by the Shariat Court in favor of appellants, therefore, we do not want to interfere in the same.
' For the aforesaid reasons, finding no force in this appeal, it is hereby dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.