' MUHAMMAD YUNUS SURAKHVI, J.--- This appeal has been directed against the judgment and order passed by the Shariat Court on 13-11-2000 whereby the appellant and respondent No,3 were ordered to deposit the entire surety amount of rupees two lacs in the Government treasury.
' The appellant and respondent No,3 stood sureties for accused Jamshed Akbar who alongwith other accused was charged to have committed offences under sections 5/15 of the Islamic Penal Laws (Enforcement) Act, 1974, read with sections 307, 147, 148 and 149, Azad Penal Code and under section 17(3) of the Offences Against Property (Enforcement of Hudood) Act, 1985, and a case was registered at Police Station Barnala, District Bhimber on 8-9-1993. After necessary investigations the challan was submitted to the District Criminal Court, Bhimber. The accused Jamshed Akbar on the process issued by the trial Court was summoned who attended the trial Court but later on was reported to have been absconded after the cancellation of his bail by the Supreme Court. He was, therefore, proceeded under section 512, Cr.P.C. Vide trial Court order, dated 30-10-1995. The surety bonds executed by the sureties were forfeited by the trial Court. A show-cause notice was issued in accordance with the requirement of section 514, Cr.P.C. Appellant Muhammad Ashraf in his objections submitted that due to a false case registered against the accused he was detained in Gujrat-Pakistan. Therefore, he could not make himself present before the Court. He further stated that the accused Jamshed Akbar was present before the Supreme Court whereas the other surety Muhammad Arif is out of the country. However, his, wife appeared before the trial Court on 3-6- 1999 and committed herself that she was prepared to follow the order of the Court. The trial Court forfeited the surety bonds to the extent of rupees ten thousand instead of rupees two lacs. A revision petition was filed by respondent No,2, Nasrullah Khan, in the Shariat Court seeking the confiscation of the entire amount of bail bonds of rupees two lacs furnished by both the sureties.
The Shariat Court vide its order, dated 13-11-2000 by accepting the revision petition filed by Nasrullah Khan, forfeited the entire amount of rupees two lacs and both the sureties Muhammad Ashraf and Muhammad Arif were ordered to deposit the said amount in the Government treasury.
It is the aforesaid order of the Shariat Court which is the subject of the present appeal.
3. In support of the appeal it was vehemently contended by Ch. Lal Hussain, the learned counsel for the appellant, that the appellant and Muhammad Arif although stood sureties for the accused but they did not stand sureties for the accused for any monetary benefit or any other gain and the surety bonds were furnished on humanitarian basis. The learned counsel has further contended that Jamshed Akbar accused was ordered to be released on bail by the Shariat Court subject to his furnishing bail bonds in the sum of rupees two lacs with two sureties responsible jointly and severally. The appellant and respondent No,3 stood sureties for the accused as ordered by the Shariat Court. The complainant Nasrullah Khan feeling aggrieved by the order of the Shariat Court filed appeal before the Supreme Court which was accepted and bail of the accused was cancelled vide judgment of this Court, dated 26-6-1995. The learned counsel contended that accused Jamshed Akbar contested the appeal in the Supreme Court and he was present on 26-6-1995 at the time of pronouncement of the judgment. The learned counsel further contended that presence of the accused at the time of pronouncement of judgment of this Court, dated 26-6-1995 is also established by the Court's order because he was not marked as absent and no warrant of arrest was issued against him. Later on the accused absconded from the trial Court and was proceeded against under section 512, Cr.P.C. Whereas the sureties were proceeded against under section 514, Cr.P.C. The appellant-surety by putting up his objections before the trial Court submitted that due to a false case registered against the accused he was detained in Gujrat-Pakistan. Therefore, he could not make himself present before the trial Court. The learned counsel for the appellant contended that the order of the Shariat Court dated 13-11-2000 was liable to be set aside for the reason that the bail granted to the accused was cancelled on 26-6-1995 and the accused was present in the Court at that time. Therefore, he should have been arrested then and there and in view of the above reason the liability of the sureties finished and they should not have been proceeded against under section 514, Cr.P.C. The learned counsel also contended that the appellant stood surety for the accused on humanitarian grounds and did not furnish the surety bond for any monetary benefit or any other gain. The learned counsel for the appellant also contended that he tried his best to find out the accused but failed to locate him and the appellant is still putting his best efforts to procure the attendance of the accused in the Court. The learned counsel for the appellant, in support of his contention, placed reliance on cases reported as The Crown v. Khushi Muhammad PLD 1953 FC 170 and Mian Mahmud Ali Qasuri and others v. The State PLD 1963 SC 478.
4. Ch. Muhammad Mushtaq, Additional Advocate-General and Ch. Muhammad Yunus Arvi, Advocate, appearing for the State and the complainant, fully supported the impugned judgment recorded by the Shariat Court and submitted that the accused in connivance with the sureties purposely did not file his personal bond but when his bail was cancelled by the Supreme Court he somehow or the other managed to abscond from the trial Court. The trial Court without any legal justification gave undue concession to the sureties by forfeiting rupees ten thousand instead of rupees two lacs and thus, committed an error. The learned Advocate for the complainant and the Additional Advocate-General submitted that the accused purposely and wilfully absconded from the trial Court when his bail was cancelled by the Supreme Court.
5. After hearing the respective contentions of the learned counsel for the parties at the very outset it may be stated that it has wrongly been stated by the appellant that when the bail of the accused was cancelled by the Supreme Court on 26-6-1995 accused Jamshed Akbar was present on the relevant date at the time of pronouncement of the judgment. Therefore, the liability of the sureties finished there and then. We have, carefully examined the order of this Court, dated 26-6-1995 wherein it has been clearly stated in para. No,15 of the judgment that Nadeem Ahmad and Jamshed Akbar accused were not entitled to bail as they are connected with the commission of offence of murder. Apart from that both the respondents-accused Nadeem Ahmad and Jamshed Akbar absconded and did not surrender themselves till the end and were ultimately arrested by the police from the Frontier Province after more than ten months. It was further stated in the order that this factor also disentitles the accused-respondents from the concession of bail but it was overlooked by the Shariat Court. In our view clearly a false affidavit has been sworn in by the appellant in support of his assertion that the accused at the time of pronouncement of judgment of this Court on 26-6-1995 was present in the Court. This fact is sufficiently belied by our judgment, dated 26-6-1995. In our view there also seems to be no earthly reason for the reduction of the amount of surety bonds as we have observed in so many cases that it has become a routine particularly in Districts Mirpur and Bhimber that the accused after getting their release on bail usually made good their escape by absconding. Therefore, in our view, the appellant and the other surety respondent No,3 do not deserve any leniency in the matter of confiscation of their surety bonds.
6. From the record it transpires that accused Jamshed Akbar and Nadeem Ahmed at the time of pronouncement of the judgment of the Supreme Court, had already absconded. It appears that accused Jamshed Akbar after getting the order of his bail from the Shariat Court, his surety bonds were submitted by the sureties but in the meantime, an appeal for cancellation of his bail had been filed in the Supreme Court. The sureties of the accused submitted their bail bonds but accused Jamshed Akbar did not execute his personal bond. It also transpires that he had been waiting till decision of the Supreme Court. However, after the decision of the Supreme Court when his bail was cancelled by it on 26-6-1995 he somehow or the other manoeuvred after submitting his personal bond to get out of the prison and thus, absconded. The cases relied upon by the learned counsel for the appellant have no relevancy to the facts and circumstances of the instant case. The case reported as The Crown v. Khushi Muhammad PLD 1953 FC 170, it was observed that the basic conception of the word "bail" is release of a person from the custody of police and delivery into the hands of sureties, who undertake to produce him in Court whenever required to do so. This is the meaning which has been given to the word "bail" in Standard English Dictionaries as well as in Wharton's Law Lexicon and Stroud's Dictionary. This is also borne out by the form of bond and bail bond given in Schedule V of the Cr.P.C.
' In a case reported as Mian Mahmud Ali Qasuri and others v. The State PLD 1963 SC 478, it was observed that in a bail bond the condition that a person admitted to bail shall desist from repetition of offence with which he is charged cannot be incorporated in bail bond. In this ruling it was observed that the accused has the indefeasible right to grant of bail under section 496, Cr.P.C.
And furthermore it was discussed in the said authority that inherent powers under section 561-A, Cr.P.C. When are to be exercised. Therefore, in our view the aforesaid authorities have no application to the instant case.
7. The record shows that accused Jamshed Akbar not only absconded once but also for the second time. There is only one authority of the Supreme Court of Pakistan titled Dildar and another v. The State PLD 1963 SC 47, wherein it was observed that balance is to be kept between undue leniency and undue severity. Therefore, the forfeiture of bond from Rs,5,000 to Rs,1,000 was reduced.
However, the accused in the aforesaid case was involved in a petty crime of theft of meager amount.
' In a case reported as Abdul Bari v. Malik Amir Jan and others PLD 1998 SC 50 while distinguishing the authority reported as Dildar and another v. The State PLD 1963 SC 47, the following observations were made by the Supreme Court of Pakistan:-- ' "The above observations were made by Cornelius, C.J. More than three decades ago, since then there has been overall deterioration in all spheres of life. The crime rate has increased manifolds.
The criminal instinct/propensity has penetrated in all walks of life. Some of the personnel of the State functionaries/agencies which are entrusted with the duty to protect the life, property and honour of citizen, either themselves actively participate in the commission of the heinous crimes or they provide protective umbrella to the criminals. Their credibility has been denuded to the extent that the victims of the crimes do not approach them for their help or protection which they are otherwise entitled to as a matter of right under the Constitution."
' In the above-referred authority the entire amount of bail bond was confiscated.
' In a case reported as Muhammad Safeer v. Faqir Khan and 2 others 2000 SCM R 312, it was observed by the Supreme Court of Pakistan that while relying upon the case of Abdul Bari v. Malik Amir Jan and others PLD 1998 SC 50, the reduction of amount of bail bond was not in consonance with law. The forfeiture therefore, should have been extended to full amount of bail bond.
' Similarly in a case reported as Muhammad Iqbal v. Robkar-e-Adalat and another 2001 M LD 673, this Court ordered for the forfeiture of the entire amount of bail bond keeping in view the peculiar facts and circumstances of the case.
' In another case titled Ch. Muhammad Yunus and another v. Rokbar-e-Adalat and another 2001 M LD 673, this Court also ordered for the forfeiture of entire amount of bail bond.
8. It will not be out of place to mention here that the situation of law and order during the present days has deteriorated to a considerable extent. It has become routine of the accused to jump of the bail and go abroad rather than facing trial. Those accused who are involved in heinous offence like murder, their sureties do not deserve any leniency in the matter of reduction of their bail bonds.
It is, therefore, imperative that the Courts of law should take stringent measures against those who undertake as sureties to produce accused on every date who are involved in heinous offence of murder but later on expect that they may be shown indulgence. In heinous offences, normally no leniency should be shown to the sureties in the matter of reduction of their bail bonds.
9. In the light of what has been stated above, we are of the considered view that the Shariat Court committed no illegality in forfeiting the entire amount of bail bonds of rupees two lacs.
10. So far as respondent No,3 Muhammad Arif is concerned, he did not prefer any appeal against the impugned judgment passed by the Shariat Court. He was simply arrayed in the line of respondents by Muhammad Ashraf, appellant herein. Therefore, the judgment of the Shariat Court whereby this surety was ordered to deposit the entire amount of bail bond has attained finality.
There is no such law that Muhammad Arif respondent No,3 may be transposed in the line of appellants as there seems to be no such provision in the Cr.P.C. Or in the Supreme Court Rules.
Therefore, to his extent, the order of the Shariat Court imposing the penalty of rupees two lacs to him stands final. Moreover, this surety, Muhammad Arif, has already made good his escape by going abroad.
11. As regards the case of the accused we have discussed in detail that he absconded himself wilfully with the connivance of his sureties not only once but twice, therefore, he being in the habit of absconding his surety, the appellant herein, does not deserve any leniency in the matter of reduction of his bail bond.
' In the light of what has been stated above, finding no force in this appeal the same stands dismissed.