' Briefly stated the facts giving rise to this petition are that Umar Hayat along with his co-accused Muhammad Anwar filed a petition (Crl. M. No, 385-B of 1996) for grant of bail in a case registered against them vide F.I.R. No,68, dated 28-2-1996 at Police Station Kathiala Sheikhan, District Mandi Bahauddin. They were allowed bail vide order dated 25-9-1996 subject to furnishing of bail bonds in the sum of Rs,100,000 each with two sureties in the like amount to the satisfaction of the trial Court. During the course of trial on 28-8-1998 Umar Hayat accused absconded and in spite of efforts of the sureties could not be ' traced out, therefore, the trial Court took action under section 514 of the Cr. P.0 and ordered forfeiture of the surety bonds to the extent of Rs, 90,000 each vide order dated 3-11-1998.
2. The petitioners' learned counsel submits that the petitioners have heavy family liabilities and are not in a position to pay the huge amount of Rs, 90,000 each ; that the petitioners are not related to the accused and stood surety for him out of benevolence and that there is nothing to show that the accused had absconded in collusion with the petitioners. In support of his contention, the learned counsel relies on the following judgments: --
(i) Sardar Khan v. Crown (PLD 1952 Lahore 645).
(ii) Dildar and another v. The State (PLD 1963 SC 47).
(iii) Zulfiqar and others . v. The State (1990 MLD 382(1).
(iv) Muhammad Shah and another v.
The State and another (1995 Crl.LJ 1254).
(v) Muhammad Ashraf and another v. The State and another (1997 SCMR 1387).
(vi) Waris Khan and others v. The State (1997 SD 321).
3. On the other hand, the learned State Counsel urged that the impugned order is reasonable and was rightly passed by the Court below due to the petitioner's failure to trace out the accused person and produce him in the Court.
4. The precedents of superior Courts relating to forfeiture of bonds under section 514 of the Cr.P.C.
Proceed in the light of the facts and circumstances of each case. The general rule is that where a person stood surety for an accused person out of sheer benevolence or due to close relationship and was not shown to have derived' any personal benefit or advantage in doing so and further on being given a reasonable opportunity to produce the accused in the Court had made genuine efforts, though not fruitful, then the entire amount of the surety bond should not be forfeited and only a reasonable amount be forfeited, keeping in view the facts and attendant circumstances of the case, including the financial position of the surety. Therefore, no. Hard and fast rule can be laid down as to how much amount of surety bond be forfeited in case of abscondence of an accused.
5. Now I may advert to the judgment relied upon by the petitioner's learned Counsel. In the case of Sardar Khan, it was observed that the Court should regulate the imposition of penalty in cases of default from the point of view, not so much of assessing the "guilt" of the sureties in terms of money, but with the object of maintaining the system in its integrity. It further observed that if leniency towards sureties became the general rule, the whole system of release of accused persons on bail, might require to be reexamined to ensure the proper progress of criminal cases and that it was not necessary or desirable in the average case that, the. Court should lean in the direction of severity for this might lead to difficukies in production of sureties having the effect of overcrowding the judicial lock-ups and , other attendant inconveniences. The amount of Rs, 5,000 forfeited . By the trial Court and reduced to Rs,1,000 on appeal, was, further reduced to Rs,250 in revision by the High Court. In the case of Dildar and another, the Hon'ble Supreme Court observed that a balance was to he maintained between .Undue leniency and undue' severity. The Court noted that the surety had acted through mere benevolence on behalf of the accused and reduced the amount of the penalty from Rs, 5,000 to Rs,1,000 qua each accused. In the case of Zulfiqar etc., the penalty was reduced from Rs, 50,000 to Rs,5,000 against each accused. In the case of Muhammad Shah and another, the amount of penalty was reduced from Rs,5,000 to Rs,500. In the case of Muhammad Ashraf and another, the Hon'ble Supreme Court of Pakistan reduced the amount of . The penalty from Rs, 40,000 to Rs,10,000 against each accused. In the case of. Waris Khan etc., the forfeited amount was reduced form Rs, 50,000 to Rs, 10,000.
6. After having referred to the judgments relied upon by the petitioners' learned counsel, I may observe that in the recent years' the trend of showing too much leniency towards the sureties is not being approved by the superior Courts because it is being exploited by the accused as well as the sureties for their selfish ends. In many cases, which have come up before the Courts, the accused persons' escape in collusion with the sureties as they feel that ultimately the sureties will have to pay only a small portion of the forfeited amount of the bond. This generally happens in cases of serious nature which are punishable with death or life imprisonment and the accused know that strong evidence is available against them to' warrant their conviction. . Therefore, the trend of showing too much leniency needs to be checked. In the present case, Umar Hayat and Muhammad Anwar accused were granted bail by this Court in Cr.M. No,385/13/1996 on 25-9-1996 in a case registered against them under sections 302/148/149, P.P.C. In the sum of Rs,1,00,000 each with two sureties each in the like amount. The petitioners stood sureties for Umar. Hayat accused, who had been appearing in the Court for about two years but ultimately absconded on 28-8-1998. The trial Court took action under section 514 of the Cr.P.C., issued notices to the petitioners and on their failure to produce the accused, forfeited the surety bonds and directed them to pay sum of Rs, 90,000 each till. 22-12-1998. The petitioners appear to have furnished surety bonds for the accused due to mere benevolence and were not shown to have derived any personal benefit or advantage by becoming sureties. Similarly, there is no material on the record to show that the petitioners had, in any manner, assisted or prompted the accused to become a fugitive from the law. Both the petitioners claim that they are poor persons, though there is no cogent material to substantiate their claim. They were shown to be solvent sureties in their surety bonds owning sufficient landed property. Therefore, keeping in view the precedents of the superior Courts and the peculiar facts and circumstances of the present case, the amount of the penalty imposed on the petitioners is reduced from Rs, 90,000 each to Rs, 50,000 each. The revision petition is partly allowed with the above modification qua the amount of the penalty.
Penalty amount reduced.