2010 Y L R 1946
[Quetta]
Before Jamal Khan Mandokhail, J
ABDUL SATTAR ---Petitioner
Versus
THE STATE ---Respondent
Criminal Miscellaneous Quashment No. 21 of 2010, decided on 1st June, 2010.
Criminal Procedure Code (V of 1898) ---
----Ss. 514 & 561 -A---Penal Code (XLV of 1860), Ss.109, 471, 420 & 406 ---Forfeiture
of bond ---Quashing of order, petition for --Petitioner stood guarantor for accused and
deposited Rs.2,00,000 as surety in cash ---Accused jumped off bail and the petitioner
being guarantor had failed to produce him before the Trial Court and out of surety
amount of Rs.2,00,000 deposited by the petitioner, amount of Rs.1,50,000 was forfeited
by the Trial Court and the petit ioner had filed petition for quashing the said order under
S.561 -A, Cr.P.C. ---Counsel for the petitioner had requested for moderate reduction in
the forfeited amount ---Validity ---Standing of surety for some one being an act of
benevolence, unless and until it was established that the surety had got accused released
on bail for any ulterior motive or for monetary gain, he was not to be treated harshly
and not to be punished severely, without there being extraordinary circumstances
calling for full forfeiture of the surety bond ---In the present case the Trial Court had not
assigned cogent reasons as had been mentioned in sub -clauses (I) & (2) of S. 514, Cr. P.
C. ---Nothing was available on record to show that the surety submitted by the
petitioner was for per sonal gain, but it seemed that same was out of benevolence and
humanitarian considerations ---Trial Court, while forfeiting the amount of Rs.1,50,000
out of Rs.2,00,000 had shown severity; it should have made investigation for arriving at
a just conclusion with respect to a quantum of fine, but it had failed to do so ---Amount
of fine of Rs.1,50,000 imposed on the petitioner was reduced to that of Rs.80,000 ---
Trial Court after deducting said amount, would return the remaining amount i.e. Rs.1,
20,000 to the p etitioner accordingly.
Ajmal Khan Kakar for Petitioner.
Haji Liaquat Ali for the State.
ORDER
JAMAL KHAN MANDOKHAIL .--Concise facts of the prosecution case are that
petitioner Abdul Sattar son of Abdul Ghafoor stood surety for accused Noor Al i,
involved in case crime No.28 of 2009, under Sections 109, 471, 420, 406 read with
section 34 PP. He was granted bail in the sum of Rs.2,00,000 - by Judicial Magistrate -V,
Quetta.
The petitioner stood guarantor for accused and has deposited surety in ca sh. Accused
jumped off bail and the petitioner being guarantor, has failed to produce him before the
trial Court, consequently, out of the surety amount deposited by him, an amount of
Rs.1,50,000 was forfeited, by trial Court, vide order dated 12 -2-2010, w hich was
challenged before Additional Sessions Judge -VI, Quetta, who dismissed the petition
vide order dated 19 -4-2010, hence this petition.
At the very outset, learned counsel for petitioner requested for moderate reduction in
the forfeiture amount of s urety on the grounds; i) that the petitioner stood surety purely
on humanitarian grounds and had gained no monetary benefit in this regard and, ii) the
petitioner is poor person and have large family having no source of income.
Learned State counsel has strongly opposed the moderate reduction in the forfeiture
amount and stated that lenient view has already been taken by the trial Court.
I have heard learned counsel for the parties and have gone through the impugned orders.
It is a fact that petitioner stood surety for accused to ensure his attendance before the
Court. The trial Court has forfeited the above -mentioned surety of the petitioner, on
account of non -appearance of accused on the date fixed and also on failure of petitioner
to subsequently prod uce him before the Court.
It is important to mention here that when the bond is for appearance of accused before a
Court, but he fails to appear, then such bond has to be forfeited, and the Court shall
record the grounds of such proof, and may call upon any person bound by such bond by
issuing notice to the surety as envisaged under section 514 Cr.P.C. to pay the penalty
thereof, or to show cause why it should not be paid. In case sufficient cause is not
shown and the penalty is not paid, then the Court m ay proceed to recover the amount of
fine by issuing a warrant for the attachment and sale of the property belonging to such
person,
Thus, for non -compliance of bound, surety of the guarantor has to be forfeited and then
fine has to be imposed upon him, k eeping in view the facts and circumstances of the
case. For passing such order, first step to be taken by Court is to satisfy itself that
accused has violated terms and conditions of bond and for its forfeiture reasons should
be recorded.
Standing of sur ety for some one is an act of benevolence, therefore, unless and until it is
established that the surety has got the accused released on bail for any ulterior motive or
for monetary gain, he is not to be treated harshly and not to be punished severely,
without there being extraordinary circumstances calling for full forfeiture of the surety
bond.
In present case, the trial Court has not assigned cogent reasons as has been mentioned in
sub-clause (11) and (2) of section 514, Cr.P.C. It is also not come on record to show that
the surety submitted by the applicant was for any personal gain; rather it seems that the
same was out of benevolence and humanitarian considera tion. The Trial Court while
forfeiting the amount of Rs.1,50,000 out of Rs.2,00,000 shown u ndue severity. The
Trial Court should have made investigation for arriving at a just conclusion with respect
to a quantum of fine, but has failed to do so.
In my considered opinion, imposing severe fine upon petitioner, without any proof of
mala fide or personal gain on his behalf is unjust. Though there is no legal embargo that
amount of bail in full cannot be forfeited, but still approach of the Courts should be
dynamic and progressive oriented while imposing fine upon guarantor, because the
purpose is only to apprise him of his misdeed. Hence, balance should be kept between
undue severity and undue leniency at the time of passing order of fine.
Thus, keeping in view the above facts and circumstances, I am inclined to reduce the
amount of fine of Rs.1, 50,000 imposed by the trial Court to that of Rs.80,000. The trial
Court after deducting the said amount to return the remaining amount i.e. Rs.1,20,000 to
the applicant, accordingly.
This disposes of Criminal Miscellaneous Quashment No. 21 of 2010.
H.B.T./73/Q Order accordingly.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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