' This revision petition has been preferred against the order of District Criminal Court, Mirpur, dated 30-11-2000, whereby the petitioner was ordered to pay the whole amount of forfeited bail bond.
2. The precise facts leading to this revision petition are that petitioner, herein, stood surety for Sian Khan, accused, in a case under sections 302 and 34, A.P.C. Read with section 13/20/65, Arms Act, registered with Police Station Dudyal, vide F.I.R. No,31, dated 6-3-1996, in which case the accused was allowed interim bail in the sum of Rs,2,00,000 (two lacs) with one surety in the like amount. The accused thereafter absented and a non-bailable warrant of arrest was issued. The personal bond and the surety bond were forfeited by the District Criminal Court, Mirpur, vide its order, dated 12-9- 2000. A separate Robkar for the realization of the forfeited amount was drawn. The petitioner submitted before the Court below that he is doing his best to find out the accused and as soon as he finds him out, he will produce him before the trial Court. The learned trial Court was not satisfied with the reply submitted by the petitioner and recorded that the accused Sian Khan is principal accused who has absented himself, therefore, the petitioner-surety is not entitled to any concession. Thus, the trial Court ordered that the whole amount of forfeited bail bond shall be paid by the surety-petitioner vide its order, dated 30-11-2000. It is against the aforesaid order of. The District Criminal Court that the present revision petition has been directed.
3. Haji Muhammad Anwar, Advocate, the learned counsel for the petitioner-surety, has contended that the accused has been arrested on 6-1-2001, therefore, the circumstances have totally changed which were not before the trial Court, thus, the petitioner is entitled to a special concession of the Court. He has also argued that in the changing circumstances the impugned order is extremely harsh which may be set aside. In support of his contentions he has referred to 1999 YLR 1932.
4. In reply, Mr. Abdul Hameed, Advocate, the learned counsel for the complainant, has vehemently opposed the submission made by the learned counsel for the petitioner. He has submitted that the accused remained absconded for three and half months and the surety did not make any effort to produce the accused before the Court. The learned counsel has further maintained that the accused was produced before the trial Court because of the best efforts of the complainant, who was arrested by police officials of Police Station Mandra in some other case. On this information, the complainant moved the trial Court and obtained afresh warrant of arrest and contacted the officials in Rawalpindi, thus, the accused was transferred by order of Additional District Magistrate, Rawalpindi. The learned counsel has argued that in the given circumstances, the petitioner is not entitled to any lenient attitude of the Court.
5. Mr. Aurangzeb Chaudhry, the learned P.P. Appearing on behalf of the State, has fully owned and supported the arguments raised by the learned counsel for the complainant.
6. I have considered the arguments raised at the Bar, perused the record and the case-law cited by the learned counsel for the petitioner. In the present case, it is not shown as to whether any effort was made by the petitioner for procuring the attendance of the accused-person, who is closely related to him but the circumstances have changed now and the accused has been arrested, who is under detention. It is admitted principle of law that in dealing with sureties the Court should neither be strict nor be lenient. It should adopt middle course so that the whole system for providing surety not collapse. No doubt, the petitioner-surety did not make any genuine effort to secure the attendance of the accused but at the same time the accused has been arrested, therefore, it is a fit case where the forfeited amount may be reduced to avoid undue severity.
7. In a case reported as Muhammad Fayyaz and another v. The State 1988 MLD 2733, finding that the accused was produced by the surety before the Court, who was also allowed bail by the trial Court, the whole forfeited amount was forgiven to the surety.
8. In a- case reported as Muhammad Sharif v. The State 1990 SCM R 1300, finding that the accused was arrested with the efforts of the petitioner who happened to be co-villager, the amount of penalty was reduced to Rs,5,000 from Rs,10,000.
9. In a case reported as Muhammad Ashraf and another v. The State and another 1997 SCM R 1387, because of the arrest of the accused-persons the penalty of Rs,40,000 imposed by the trial Court was reduced to Rs,10,000.
10. The survey of the above quoted case-law discloses that whenever an accused is produced before the Court by the efforts of the surety, the penalty of bail bond has always been reduced. In the present case, as already stated above, the surety did not make any effort to produce the accused before the Court but it is an admitted fact that the accused-person has been arrested.
11. It may be observed that in this respect no hard and fast rule can be laid down as to whether in case of arrest of the accused the forfeited amount should be forgiven as whole or some part of the same should be condoned because each case has its own peculiar circumstances. In the given circumstances of the present case, the interest of justice would be amply served if the petitioner be imposed a penalty of Rs,50,000 only.
12. So far as the case-law referred to by the learned counsel for the petitioner is concerned, is distinguishable because in that case the accused was arrested and produced before the trial Court with the efforts of the surety.
For the foregoing reasons, I accept this revision petition and modify the impugned order to the extent that the petitioner-surety shall deposit Rs,50,000 only with the trial Court instead of Rs,2,00,000. The revision petition is disposed of in the manner indicated above.