Order dated 17-9-2003 penalizing applicant/surety Imamdin son of Malikdino Mirani who had stood surety for the accused Abdul Aziz in the sum of Rs.1.00,000 (Rs. One lac) in the Court of learned IVth Additional Sessions Judge, Mirpur Mathelo in Sessions Case No.234 of 2000 (Crime No.I97 of 2000 of P.S. Deharki) has been called in question by the applicant/surety through this revision application.
2. The facts in brief appear to be that applicant Imamditt stood surety for accused Abdul Azi4Jand executed such bond in the sum of Rs.1,00,000. However, after having been released on bail said accused Abdul Aziz remained absent on 5-5-2003. The Court was informed through an application by co-accused Noor Muhammad that accused Abdul Aziz was arrested and he was in custody at P.S. Deharki, as such Production Order was issued and report was called from the said police who informed the learned trial Court on 21-5-2003 that said accused Abdul Aziz was not in their lock- up/custody.,In view of such report, NBWs v.,-ere issued against accused Abdul Aziz and notice under section 514, Cr.P.C. To the surety. Applicant/surety Imamdin appeared before the learned Court and prayed for time to locate the whereabouts of the said accused and to produce him before the Court. Time was allowed but the surety failed to produce the accused and on 3-9-2003, he informed the Court that accused was confined in District Jail at Rahimyarkhan therefore the P.O. Was issued directing the Superintendent of the said Jail to produce the said Abdul Aziz before the trial Court at Ghotki. It was confirmed by the Deputy Superintendent District Jail Rahimyarkhan through a letter dated 9-9- 2003 that accused Abdul Aziz is in their custody in a case after having been admitted in that jail since 11-8-2003. Learned trial 'Court taking into consideration the fact that there was no explanation regarding the absence of the accused in-between 5-5-2003 and 11-8-2003 found the surety liable for penalty and ordered him to deposit the entire surety amount within one week failing which writ of attachment of the property was to be issued.
3. In support of this revision application learned counsel for the applicant/surety has mainly urged that surety Imamdin stood surety for accused Abdul Aziz purely on humanitarian grounds and without any monetary gain. It is further contended that after receiving notice from the Court, the applicant/surety started taking efforts to find out the accused and came to know that he was confined in police lock; up at Deharki and such information was conveyed to the learned trial Court, but it appears that perhaps accused Abdul Aziz was under illegal detention at Deharki and subsequently, his custody was handed over to Rahimyarkhan police as is evident from the letter of Deputy Superintendent Of Central Jail Rahimyarkhan addressed to di: learned trial Court in which it is shown that the said accused was admitted in that jail on 11-8-2003. Learned counsel for the applicant has therefore, argued that no record could be produced in respect of illegal detention of accused Abdul Aziz at the hands of Deharki Police who was in fact detained there before being handed over to Rahimyarkhan Police. He has vehemently urged that due to efforts of the applicant/surety the factum of accused being available in Jail at Rahimyarkhan though shown to have been arrested on 11-8-2003, is a relevant factor which should have been taken into consideration by the learned trial Court while forfeiting the bond and ordering the applicant to depot/pay full surety amount. The Order is therefore unjustified and harsh.
4. Mr. Mumtaz Ali Siddiqui, learned State Counsel has not disputed this factual and legal aspect of the. Matter and states that indeed the surety appears to have taken pains to find out the whereabouts of accused Abdul Aziz and ultimately informed the Court regarding his arrest in some other case hence a lenient view could be taken into the matter.
5. I have given due consideration to the arguments advanced by the learned counsel for the applicant as well as learned State Counsel. I feel inclined to take a lenient view in the matter under the circumstances of the case. Indeed the very purposes of releasing an accused on surety is to ensure his attendance on each and every date of hearing till conclusion of the trial for compliance whereof the person who stands a surety executes a surety bond in a particular sum of money and undertakes to produce the accused on each and every date of hearing. However, situation may arise when for some reasons beyond control and power and accused may. Not be able to attend the Court for valid and genuine reason such as having been arrested in some other case, as it appears to be in this matter or having fallen ill suddenly etc. Though in certain cases explanation for the absence of the accused given may not very convincing but the plight of a surety in such cases should be kept in mind while penalizing to pay the surety amount as a whole.
6. Resultantly, this application is allowed to the extend the surety amount forfeited to the full extent by the learned trial Court is reduced to 50%. The applicant shall deposit Rs.50,000 in five monthly equal instalments commencing from 1-12-2003 upto 10th of every calendar month and in case of default in payment of any instalment within the above mentioned period the learned trial Court shall be at liberty to recover the entire amount of Rs.50,000 or the balance as the case may be through process of law.