Tuesday, 21 October 2014

The surety is confiscated if accused absconds

PLJ 2013 AJ&K 184
Present: Sardar Abdul Hameed Khan, J.
ABDUL JABBAR--Petitioner
versus
KHADAM HUSSAIN and another--Respondents
Crl. Revision No. 3 of 2012, decided on 26.3.2013.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 514--Surety bond was confiscated as a whole--Order was assailed--Modified surety bond--Validity--While forfeiting surety bond u/S. 514, Cr.P.C. a balance is necessary and where principle of balance between too much severity and too much leniency is applicable--Impugned order falls within purview of principle which warrants no interference by High Court--Order was proper and legal to meet end of justice thus finding no force in revision petition--Petition was dismissed..          [Pp. 186 & 187] A & B
Hafiz Fazal-ur-Rehman Dar, Advocate for Petitioner.
Mr. Muhammad Ayub Sabir, Advocate for Respondent No. 1.
Assistant Advocate General, for State.
Date of hearing: 26.3.2013.
Judgment
This revision petition has been directed against the order passed by the learned Sessions Judge Bhimber dated 11.01.2012, whereby the order passed by the learned Magistrate First Class Bhimber dated 29.09.2011 has been modified by the learned Sessions Judge.
2.  Brief facts giving rise to the instant revision petition are that accused Muhammad Younas S/o Muhammad Sharif was facing trial in the offences under Section 447/34 APC before the learned Magistrate First Class Bhimber where the respondent furnished a surety bond to the tune of Rs. 50,000/- in the Court as surety of MuhammadYounas S/o Muhammad Sharif. The said accused absconded and proceeded abroad on which a Robkar was instituted by the learned Magistrate First Class Bhimber on 22.02.2010 but respondent on one pretext or the other could not produce the accused before the court for near about 02 years. Resultantly, vide order of the learned Magistrate First Class, Bhimber dated 29.09.2011, the surety bond was confiscated as a whole. The order of the Magistrate was assailed before the Sessions Judge,Bhimber. The learned Sessions Judge, after hearing the parties modified the order passed by the Magistrate 1st Class Bhimber and reduced the forfeited amount for Rs. 50,000/- to Rs.30,000/-. The order passed by the Sessions Judge has been assailed before this Court through the instant revision petition. It is stated that respondent was legally bound to bring the accused on each and every date during the said proceedings but he deliberately facilitated the absconsion of the accused, so, the respondent is not entitled to any concession. It is further stated that the trial Magistrate has passed this order in accordance with provisions of law and the said order has rightly been passed by the trial Magistrate through which surety bond of the respondent was confiscated.
3.  The learned counsel for the petitioner, Hafiz Fazal-ur-Rehman Dar, argued that the order passed by the learned Magistrate First Class Bhimber dated 29.09.2011 was perfect and legal one and the learned Sessions Judge Bhimber by modifying the order of the trial Magistrate by reducing the amount of surety bond from Rs.50,000/- to Rs.30,000/- has committed an illegality and the order comes within the purview of material irregularity because the petitioner who stood surety for absconder was given sufficient time by the trial Court to fulfill the obligations/conditions of the surety bond but he failed to bring the accused before the Court. The learned counsel submitted that by setting aside the impugned order passed by the learned Sessions Judge, the order of the trial Magistrate may be restored. In support of his contentions the learned counsel for the petitioner referred the following case law:--
1.         PLD 1997 SC 267,
2.         PLJ 2003 Cr.C. (Lahore) 169,
3.         PLJ 2012 SC (AJ&K) 161 &
4.         (PLJ 2006 SC (AJ&K) 91) "Abdul Rehman and another VrsRobkar-e-Adalat".
4.  The learned Assistant Advocate General supported the submissions of the learned counsel for the petitioner and prayed for restoration of the order of the learned trial Magistrate.
5.  On the other hand, Mr. Muhammad Ayub Sabir, the learned counsel for the respondent, while controverting the arguments advanced by the learned counsel for the petitioner, vehemently argued that after institution of the instant revision petition, by efforts of the surety /respondent, the accused has surrendered before the trial Court. Moreover, the amount, as ordered by the learned Sessions Judge through the impugned order, has been deposited by the respondent/surety in the Government Treasury. He further argued that the offences in which the accused was facing trial were minor in nature. The punishment for the offence under Section 447, APC is only imprisonment for 03 months or fine of Rs. 1500/- or both, which shows that the respondent furnished surety bond in good faith. The allegation to manage the absconsion of the accused is baseless. Thus, the order of forfeiting the whole amount of surety bond was not warranted under law and the said order was totally a harsh order. The learned counsel while defending the impugned order of the Sessions Judge, Bhimber submitted that the impugned order is legally correct on all the four corners which does not warrant any interference by this Court. The learned counsel for the respondent relied upon the following case law:--
1.         Muhammad Asghar and another Vrs. Muhammad Shafique (1995 SCR 141) &
2.         Faizullah Khan and others VrsRobkar-e-Adalat and another (1998 SCR 36).
6.  I have heard the learned counsel for the parties and gone through the record with my utmost care and caution, while forfeiting the surety bond under Section 514, Cr.P.C. a balance is necessary and this is a case where the principle of balance between too much "Severity" and too much "Leniency" is applicable.
7.  Keeping in view the latest position prevailing at the moment, that the accused has appeared before the Court to face the trial and reduced amount of forfeited surety as Rs. 30,000/- has been deposited in the Govt. Treasury by the respondent/surety, therefore, in my estimation, the impugned order of the learned Sessions Judge Bhimber dated 11.01.2012 falls within purview of supra quoted principle, which warrants no interference by this court. Moreover, the impugned order of the Sessions Judge is proper and legal to meet the ends of justice, thus, finding no force in this revision petition, it is hereby dismissed.
(R.A.)  Petition dismissed

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