Farman Ali alias Kala son of Jamaat Ali was involved in criminal case F.I.R. No,288/96 dated 1-5- 1996 for offences under sections 302, 324, 148, 149, P.P.C. Registered at Police Station North Cantt., Lahore. Farman Ali, accused had murdered his first cousin in the incident. He was arrested in the case on 13-5-1996 and sought post-arrest bail on the ground that period of his incarceration had exceeded two years and five months and trial of the criminal case had not even commenced which conferred a right on him by provisions of third proviso, subsection (1), section 497 of the Code of Criminal Procedure to be released on bail, Keeping in view the dictum of Supreme Court of Pakistan in Sher Ali v. The State 1998 SCM R 190, Farman Ali was allowed bail by this Court by order dated 7-10-1998 passed in Criminal Miscellaneous No,3170-B-1998 in the sum of Rs,2,50,000 with two sureties.
2. Niamat Ali son of Gajju and Riasat Ali son of Ashiq stood sureties for the accused and he was released from judicial custody.
3. The trial commenced. Farman Ali kept appearing in trial Court but did not appear in the trial Court on 8-7-1999. The bail bonds submitted by him were forfeited and sureties were summoned for 15-7-1999 through non-bailable warrants of arrest. The sureties were in attendance in trial Court on 23-7-1999 when they were called upon to produce Farman Ali accused, in Court on 18-8-1999 or else to face the consequences prescribed by law. The accused could not be brought before the Court on the next date of hearing. The sureties availed another opportunity for production, of the accused but failed to produce him in Court. The trial Court vide order dated 25-8-1999 imposed a penalty of Rs,2,50,000 on each of the sureties and they were directed to deposit the amount in the trial Court on 28-8-1999. The sureties failed to comply with the direction given by the trial Court which proceeded to order, on 28-8-1999, attachment of movable properties of the sureties.
4. Under consideration petition was submitted to assail the legality of the afore-referred order of the trial Court. The petitioners sought a number of opportunities to surrender the accused into the custody of the trial Court but failed to do the needful. The petition was heard on various dates. The petition was heard on 28-4-2000 and thereafter notice was issued to Advocate-General, Punjab in order to ascertain the correct law to be followed in such matters.
5. Learned counsel for the petitioners, the learned Advocate-General, Punjab and learned counsel for the complainant have been heard at length. In the course of hearing learned counsel for the parties were also called upon to address the Court whether the Islamic Law on the subject, which envisaged imprisonment of surety in place of absconding accused, should be followed or not?
6. Learned counsel for the petitioner contended that the petitioners stood sureties for the accused when he was allowed bail and according to terms of bonds submitted by them, they were required only to produce the accused in Court when called upon to do so, but in case the accused jumped bail, the liability of the sureties was confined to that provided for by provisions of section 514, Cr.P.C.
It was submitted that the lower Court had not followed the provisions of section 514, Cr.P.C. And had not issued any show-cause notice to the sureties and penalty was imposed practically without affording full opportunity to them. It was also submitted that penalty imposed on the petitioners- sureties was too harsh and that the practice in this regard was that penalty imposed was usually 20-25% of the amount of bond and payment in part only was enforced. Learned counsel submitted that the surety could not be burdened with any further liability. He also submitted that the sureties had deposited an amount of Rs,1,00,000 each and the sureties thus had substantially discharged their liability. Learned Advocate-General submitted that the Courts are required to take into account the changed crime culture and social conditions while enforcing the criminal law. He argued that the accused misused the concession of bail and jumping of bail had become order of the day and the sureties who are under an obligation to produce the accused in Court should be penalized accordingly. He submitted that their Lordships of the Supreme Court have held in a number of cases that sureties should not be let off lightly, and imposed penalties equivalent to the amount of bonds. He submitted that case-law relied upon by the trial Court sufficed to highlight this point of view. He also submitted that he would fully support the view that in matters of bail or other matters ancillary thereto, Islamic Law, in cases relating to offences enumerated in Chapter XVI, Pakistan Penal Code, 1860, was to be applied in view of the provisions of section 338-F of the Code. He submitted that he would welcome the fresh approach in this regard and would also call upon the Pakistan Law Commission to suitably amend section 514, Cr.P.C. Provided the Court recommended to do so.
7. The criminal law is the strongest arm of all the normative systems of the society by which it punishes, controls, curbs and prevents crime in the society. The evil has lived with the mankind from its beginning and the society has to make continuous efforts to keep it at bay and the criminal law keeps undergoing change so as to meet the new challenges posed by the crime culture. The basic purpose of the criminal law and criminal justice administration is to save the society from evil, to free it of crime, or, at least to make crime an unpleasant, detestable, unattractive and unacceptable activity or career. The criminal law, thus, has to be interpreted, applied and enforced in a manner so as to achieve these objectives. A dynamic and progressive approach in the application and enforcement of criminal law is required so as to eliminate the mischief which has crept into the criminal justice administration whereby the accused frustrate its provisions by deceit, cleverness, sham excuses and contrivances or get away from the rigours of law due to loopholes in the law or the procedure. Their Lordships of the Supreme Court in a large number of cases expressed concern about the deteriorating law and order situation and desired that the Courts should take a dynamic approach in order to discouraging crime. For example, in Zeeshan Kazmi v. The State PLD 1997 SC 267 commenting upon the bleak scenario which emerged with passage of time on account of lack of respect for the rule of law, their lordships desired a dynamic and progressive approach to be taken to curb crime or bail-jumping in Abdul Bari v. Malik Amir Jan and 4 others PLD 1998 SC 50 similar views were expressed.
8. Section 338-F of the Pakistan Penal Code, 1860 reads as under:- "338-F. Interpretation.--In the interpretation and application of the provisions of this Chapter, and in respect of matter ancillary or akin thereto, the Court shall be guided by the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah."
It is obvious, by these provisions, that not only in cases relating to offences enumerated in Chapter XVI of the Pakistan Penal Code, but also in all matters ancillary or akin thereto, the Islamic Law on the subject would be applicable. The law of bail is a necessary adjunct of the substantive law and the Islamic law is applicable to it and while considering or interpreting the law of bail and other matters relating to it in cases of hurt and homicide, the Islamic law would be followed and it would come into play while considering the questions relating to grant and/or cancellation of bail, the terms of bail, the qualifications and liabilities of sureties and consequences which follow due to non-surrender of the accused into judicial custody.
9. Law of bail essentially envisages change of custody. A person who is in custody of the Court is given into custody of a willing surety with the stipulation that the accused would be produced before the Court on a subsequent day or days. The surety in order to ensure that he would comply with the condition of re-surrendering the accused into the custody of the Court executes a bond undertaking to pay the penalty prescribed by the Court in case of his failure to bring the accused before the Court. The undertaking of the surety basically is that of producing on demand, the accused in Court. In case of failure of the surety to produce the accused before the Court. He is guilty of violating this undertaking. This is not only violation of the terms contained in the bond submitted (by the accused as well as the surety) but is also commission of criminal contempt of the Court. But ordinarily, the surety is penalized with payment of an amount which might be, at the most equal to the amount of bond. In practice, only fractional amounts of bonds are paid by the sureties. We have seen that in serious crimes, the accused rarely stand trial, or try to prolong the proceedings by absenting from the trial Court without the slightest qualm or fear for law as the penalty actually imposed is too nominal and rarely hurts. The accused simply get away, the sureties are not properly penalized and the aggrieved life in utter desolation with deeply wounded souls. The abuse, misuse and exploitation of the law and the system by a few has to end.
10. Provisions of section 338-F, Pakistan Penal Code provide an excellent aid in overcoming the apparent inadequacy of the law of bail whereby the accused can stay away from the Court with impunity and the surety can also sleep a sound sleep. The Islamic law on the subject of bail and matters ancillary thereto provides a perfect solution to the problem. During the reign of Emperor Aurangzeb Alamgir, scores of renowned Muslim jurists of the Sub-continent compiled an authentic Code of Islamic Law covering vast fields of human activity, called Fatawa Alamgiri or Fatawa Hindiya which code of law was enforced for centuries, as the law of land by the Courts in the Sub- continent and the Ottoman Empire. Chapter Two of the Book of Kifala, page 49 of Volume V of the Urdu Edition of Fatawa Alamgiri, published by Qanuni Kutab Khana, Lahore contains provisions relating to law of bail. According to Fatawa, it is permissible to become "Kafeel" or surety for a person and the "Kafeel" or surety can forcibly produce the accused before "Hakim" (Court) and the surety can seek assistance of the footmen/bailiffs of the Qazi (Court) for the purpose. Quoting "Al- Kafi", it is stated further, that the surety is under an obligation to produce him in Court on the appointed day and in case he declined to do so (or failed to do so) he shall be imprisoned provided the surety proved his inability to surrender the accused into custody. The Hakim or Qazi would give two or three opportunities to the surety to produce the absconding accused before ordering imprisonment of the surety. The surety would not be sent behind the bars if he is able to show that the accused had gone into enemy territory or to a place from where he could not be brought before the Court. Reference for the views was made to Hedaya, Al-Zaheeriya, Zahir- arRiwaya and Nahr-ul-Faiq. The law contained in Fatawa clearly prescribes the liability of the surety that he is under an obligation to produce the accused before the Court when required to do so. In case of his failure, the surety would be imprisoned till the accused appeared before the Court. Since no contrary view was brought to the notice of the Court, the above would be deemed to be the correct position of Islamic Law on the subject.
11. The most important consideration to be kept in view by the Court while allowing bail to an accused is, his chance of standing trial at a subsequent stage. The Court has to satisfy itself that the accused would stand the trial and was being given in the custody of a person who was in a position to surrender the accused into the custody of the Court. The suitability of the proposed surety should be determined by the Court at the time of acceptance of his bonds. Financial resources of the prospective surety his character and the station he occupies in life, besides his relationship with the accused and the influence he could wield over the accused must be considered at the time of acceptance of surety bonds. A mechanical acceptance of surety bonds from persons who lack the capability to produce the accused before the Court has also contributed to a considerable extent in bail-jumping.
12. After above enunciation of the law on the subject, it is considered necessary to prescribe the proper procedure to be followed in matters of bail relating to offences contained in Chapter XVI of the Pakistan Penal Code, 1860. The Court after determining entitlement of the accused to be released on bail or after grant of bail by a superior, Court should accept bonds from suitable sureties. When the accused is required by the Court to appear before it to stand trial or for any other purpose, the surety/sureties should also be summoned for that date/dates. In case of absence of the accused the bonds should be forfeited and surety called upon to produce the accused on the next date of hearing. The surety should be afforded two or three opportunities; keeping in view the facts and circumstances of the case, to bring the accused before the Court.
Police assistance if required may also be provided to the surety. In the event of failure of the surety to surrender the accused into the custody of the Court, the surety would be committed to judicial lock-up (as civil prisoner) for a period not exceeding six months at a time. The surety shall be released from custody whenever the accused surrendered to judicial custody. The surety can be allowed bail as well on the terms of the original bond. After the expiry of term of confinement, or sooner on the motion of surety, another enquiry should be conducted to ascertain the ability or inability of the surety to bring the accused before the Court and if it is found that the accused has gone beyond the reach of the surety, from where he could not be brought by the surety, the surety should be released from custody after payment of reasonable penalty, allowance being made for the time spent in confinement by the surety.
13. In the case in hand, the accused was allowed bail on statutory grounds but later he jumped bail.
Bonds submitted by the accused and sureties were forfeited and penalty of Rs,2,50,000 on each of the sureties was imposed. The revision petition followed during hearing of which the petitioners were given numerous opportunities to locate and bring the accused before the Court but they failed to discharge their liability. Police assistance was also provided to the sureties and other relatives of the accused to trace him. It was claimed by the family of the accused, at one stage that he had gone to Saudi Arabia but they later stated that he was not present there. The complainant claimed that he was stated to be present in the District of Narowal. Anyhow the sureties failed to fulfil the undertaking to produce the accused before the Court. They have to face the consequences for the same. The trial Court is directed to summon the petitioners/sureties and give them one last opportunity to produce the accused before the Court and in case of their failure to follow the directions and procedure prescribed in the preceding paragraph. The sureties should be given at least thirty days for the purpose. During this period they would have enough opportunity to challenge the present order, if they so desired, before appropriate forum.
14. The sureties deposited a sum of Rs, one lac in the trial Court. Recovery of remaining amount (Rs,1,50,000 each) shall be postponed. The movable property of the sureties shall, however, remain attached as directed by the trial Court.
15. The order of the trial Court has been found to be valid and in accordance with the law on the subject to the extent whereby bonds were forfeited and penalty of Rs,2,50,000 imposed on each of the sureties and movable property of the sureties was attached. The revision petition is dismissed.