Order Sheet

IN THE HIGH COURT OF SINDH KARACHI

Criminal Misc. Application No. 27 of 2013

Date	Order with signature of Judge

For Katcha Peshi :

Applicant             :  Saleemullah Khan,

         through Mr. Ateeq-ur-Rahman Advocate.

Respondent       :   The State, through Mr. Azizullah Burero, D.A.G.

Date of hearing  :   02.07.2014.

Nadeem Akhtar, J. – This Criminal Miscellaneous Application under Section 561-A Cr.P.C. has been filed by the applicant against the order passed by the learned I^st Additional District & Sessions Judge, Malir, Karachi, whereby the application filed by the applicant for the return of surety was dismissed.

2.         Briefly stated, the facts of the case are that F.I.R. No.181/2007 was lodged on 03.02.2007 with the Police Station F.I.A. Passport Cell Karachi, according to which several persons, including one Rehmatullah, were deported from the flight arrived at Hajj Terminal, Karachi. It was alleged that all the said persons were Afghan nationals, but they went to perform Hajj on forged and bogus Pakistani passports. The said Rehmatullah was granted bail vide order dated 20.02.2007 by the trial Court subject to furnishing solvent surety in the sum of Rs.200,000.00 and PR Bond in the like amount. The applicant furnished the requisite surety on behalf of Rehmatullah, whereafter he was released from the judicial custody. Subsequently vide judgment delivered on 17.03.2007, the accused, including Rehmatullah, were convicted by the trial Court and were sentenced to suffer rigorous imprisonment of two months and to pay a fine of Rs.10,000.00 each, or in default, to undergo further rigorous imprisonment of two months each. Rehmatullah absconded, and as such he could not be taken into custody to suffer the punishment awarded to him. The applicant filed an application in October 2012 before the trial Court for return of the surety documents, but the same was dismissed through the impugned order by directing the applicant to pay Rs.200,000.00, being the entire amount of the surety furnished by him, in two installments of Rs.100,000.00 each within two months.

3.         Mr. Ateeq-ur-Rahman, learned counsel for the applicant, contended that the applicant stood surety for the accused on humanitarian grounds only in order to help him, and no personal interest of the applicant was involved in furnishing the surety. He further contended that the sentence awarded to Rehmatullah was of two months with fine of Rs.10,000.00, but the fine of Rs.200,000.00 was imposed upon his surety / the applicant. It was urged that the impugned order is very harsh inasmuch as the fine imposed upon the applicant is very obviously disproportionate to the fine imposed upon the accused. It was also urged that before passing the impugned order, no notice under Section 514 Cr.P.C. was served upon the applicant. In support of his submissions, learned counsel relied upon (1) Muhammad Shah and others V/S The State, 1994 PCrLJ 2316, (2) Muhammad Khan V/S The State, 1986 PCrLJ 2028, (3) Abdul Sattar V/S The State, 2010 YLR 1946, (4) Syed Muhammad Javed Ahmed V/S The State and 2 others, 2010 PCrLJ 1068, and (5) Sikander Ali V/S The State, 2013 MLD 872.

4.         Mr. Azizullah Burero, the learned D.A.G., 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.         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.

6.         It is well-settled that for non-compliance of the surety bond, the surety has to be forfeited first and then fine has to be imposed upon the surety keeping in view the facts and circumstances of the case ; and, before passing such order, the Court must not only satisfy itself that the accused has violated the terms and conditions of the bond, but the grounds for forfeiture of the surety must also be recorded. In the instant case, the surety was not forfeited by the trial Court before imposing penalty upon the applicant ; and,the trial Court also did not fulfill the requirement of Sub-Section (1) of Section 514 Cr.P.C. as the grounds for forfeiture required to be recorded under the said Sub-Section, were not recorded in the impugned order.

7.         In his application for return of the surety documents filed by the applicant before the trial Court, the applicant had specifically stated that despite his best efforts, he could not contact Rehmatullah, for whom he stood as surety. It is an admitted position that Rehmatullah was sentenced only for a term of rigorous imprisonment of two months with fine of Rs.10,000.00. In my humble opinion, imposing penalty on the applicant / surety for the entire amount of Rs.200,000.00 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 impugned order is set aside and the penalty imposed upon the applicant is reduced to Rs.10,000.00, which is equivalent to the fine that imposed by the trial Court upon Rehmatullah after his conviction. This Criminal Miscellaneous Application is disposed of in the above terms.

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    J U D G E