Order Sheet

IN THE HIGH COURT OF SINDH KARACHI

Criminal Revision Application No. 148 of 2013

Date	Order with signature of Judge

For Katcha Peshi :

Applicant                   :   Muhammad Ibrahim through Ms. Asma Khan Advocate.

Respondent              :   The State through Mr. Shahzado Saleem, Assistant

    Prosecutor General, Sindh.

Date of hearing        :   04.07.2014.

Nadeem Akhtar, J. – This Criminal Revision Application has been filed by the applicant against the order passed by the learned III^rd Additional Sessions Judge, Karachi South, whereby the application filed by the applicant for the return of surety was disposed of by forfeiting the full amount of the surety and by directing the Nazir to deposit the said amount in the Government Treasury.

2.         Briefly stated, the facts of the case are that F.I.R. No.481/2010 was lodged with Police Station Kharadar Karachi, under Sections 353, 324 and 34 P.P.C. against Ali Akbar S/O Abdul Latif (‘the accused’). The accused was granted post-arrest bail by the trial Court, and the applicant furnished surety on his behalf in the sum of Rs.50,000.00 by depositing saving certificates. The accused was released from the judicial custody, but subsequently he jumped the bail and absconded, due to which he was declared as proclaimed offender after completion of proceedings under Sections 87 and 88 Cr.P.C., and the case file was kept dormant. A notice under Section 514 Cr.P.C. was issued to the applicant / surety. The applicant filed an application in June 2013 before the trial Court for return of the surety documents, but the same was dismissed through the impugned order by forfeiting the full amount of surety and by directing the Nazir to deposit the same in the Government Treasury.

3.         Ms. Asma Khan, learned counsel for the applicant, contended that the applicant is a poor man and is the only breadwinner of his family ; the mother of the accused, who was very old and poor, came to the applicant’s house in the holy month of Ramazan and requested him to stand surety for her son as she did not have any other source to furnish the requisite surety ; the applicant stood surety for the accused on humanitarian grounds because of the request of his mother only in order to help him ; and, no personal interest of the applicant was involved in furnishing the surety. She further contended that no notice under Section 514 Cr.P.C. was served upon the applicant. It was urged that the offences alleged against the accused were of minor nature involving minor punishments, therefore, forfeiture of the entire amount of the surety is unjustified and harsh. In support of her submissions, learned counsel relied upon (1) Muhammad Shah and others V/S The State, 1994 P.Cr.L.J. 2316,    (2) Amanullah and another V/S The State, 1997 P.Cr.L.J. 1927 and (3) Faiz Muhammad V/S The State, 1999 P.Cr.L.J. 991.

4.         Mr. Shahzado Saleem, Assistant Prosecutor General, Sindh, contended that after furnishing surety, the applicant was bound to ensure the presence of the accused before the trial Court on every date of hearing ; and, as per the terms and conditions of the surety furnished by him, the surety was to be forfeited or fine was to be imposed upon him in case of non-appearance of the accused. Regarding the notice under Section 514 Cr.P.C., he submitted that such notice was issued to the applicant. He supported the impugned order and prayed for the dismissal of this application.

5.         In her rebuttal, learned counsel for the applicant submitted that the applicant is willing to face the consequences of furnishing the surety on behalf of the accused, but he prays that the amount ordered to be forfeited be reduced as he is not at all in a position to sustain a financial loss of Rs.50,000.00.

6.         I have heard the learned counsel and have also examined the impugned order as well as the law cited at the Bar. It has been the consistent view of the Superior Courts that where there is nothing on record to suggest that the surety had any other consideration except the benevolence of the accused, or the appellant stood surety for the accused out of charitable motive and not to derive any monetary benefit and there was no ulterior motive or connivance on his part, the surety should not be penalized heavily or treated harshly in case of non-appearance of the accused ; while dealing with the surety, the principle of undue leniency and undue severity as well as the circumstances of the case must be kept in mind by the Court ; and, sureties of accused persons involved in heinous crimes or involving capital punishment do not deserve any leniency while considering reduction of  their bonds, but sureties of accused involved in minor offences with minor punishments and penalties should be treated leniently, and the entire amount of surety bond in such cases should not be forfeited.

7.         In his application for return of the surety documents filed by the applicant before the trial Court, he had specifically stated that despite his best efforts, he could not contact the accused, for whom he stood as surety. It is an admitted position that the accused was not charged with any heinous crime or any such crime involving capital punishment. In my humble opinion, forfeiting the entire surety amount of Rs.50,000.00 was unreasonable and too harsh especially in view of the fact that admittedly there was nothing on record to suggest that the applicant had any ulterior motive or connivance on his part, or any other consideration except the benevolence of the accused, such as any monetary benefit.

8.         In view of the above discussion, the order of forfeiture is maintained, but taking a lenient view in view of the circumstances of the applicant, the amount to be forfeited is reduced to 20% of the total bail bond. Accordingly, the applicant shall be liable to pay an amount of Rs.10,000.00. This Criminal Revision Application is disposed of in the above terms.

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 J U D G E