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Criminal Revision Application No. 63 of 1980, decided on 16th July, 1981.

-- S. 540-Surety bond, forfeiture of-Order forfeiting bond passed without considering whether surety, (i) had any direct financial or blood connection, (ii) connived at or procured absence of accused (iii) made efforts to secure attendance of accused-Order set-aside and case remanded for reconsideration in light of principles laid down by superior Courts.

Aziz-ur-Rahman v. The State 1975 P Cr. L J 58; Dildor and another v. The State P L D 1963 S C 47 and Banaras v. The State 1975 P Cr. L J 954 ref.

Nemo for Applicant.

S. Sarfraz Ahmed, Asstt. A.-G. with Saifuddin Agha for the State.

Date of hearing: 12th July, 1981.

Mst. Rasoolan was granted bail on 23rd February 1977 in the sum of Rs. 10,000 with one surety. The applicant stood surety. However, Mst. Rasoolan remained absent on 14^thFebruary, 1979, 1^stApril, 1979 and 30th May, 1979 without any intimation, therefore, the Court cancelled her bail bond and directed the issuance of non-bailable warrant against her and also notice to the applicant surety. She however, subsequently sent telegram that she was ill and was therefore unable to attend the Court. Nevertheless, she did not attend the Court and kept on sending telegrams regarding her illness. On 29th October, 1979 again a telegram was receiv ed by the Court and it was directed that she must produce medical certifi cate -from the Civil Surgeon on 31st November, 1979 the next date of hearing. Yet she remained absent without any intimation. Thereafter, Mst. Rasoolan did not appear nor did she send the required medical certificate from the Civil Surgeon. On 26th March, 1980, she appeared before the Court and filed an application for bail and she was granted interim bail for the reasons recorded in the order dated 26th March, 1980. The applicant also appeared in response to the notice and eventually filed a reply on 29th March, 1980 praying that the notice may be withdrawn. However, the learned Sessions Judge, Khairpur by the order dated 12th April, 1980 for the reasons that the applicant had not responded to the notice sent to him and failed to secure the presence of Mst. Rasoolan who had voluntarily appeared before the Court on 26th March, 1980 forfeited the bond but in the circumstances of the case, imposed penalty of Rs. 2,000, The applicant aggrieved by the aforesaid order has filed this revision application under section 435/439, Cr. P. C.

The applicant was called absent. However, Mr. S. Sarfraz Ahmed, Assistant Advocate. General for the State submitted that it was the duty of the applicant to have control over the movements of Mst. Rasoolan and to see that she was attending the Court on all dates of hearing. He therefore, submitted that the bond was rightly forfeited. In this regard he relied on Aziz-up-Rahman v. The State (1975 P Cr. L J 58).

I have no doubt that the case relied upon by the learned Assistant Advocate General supports him. However, further question that falls for consideration is whether the penalty imposed in the circumstances of the case is proper.

Here I may state the points that require consideration in this regard as pointed out by the Supreme Court and High Courts. These are:

(1) Whether the surety has any direct interest through financial or blood connection with the accused.

(2) Whether he has connived at or procured the absence of the accused.

(3) Whether he has done his best to secure the attendance of the accused.

Reference may be made to Dildar and another v. The State (P L D 1963 S C 47) and Banaras v. The State (1975 P Cr. L J 1954).

I may also here quote the rule laid down by the Supreme Court in Dildar and another v. The State that should not be lost sight of. It is

"Therefore in dealing with cases of sureties who are in default, a balance has to be held between undue leniency, which might lead to abuse of the procedure and interference with the course of justice in a large number of cases, and on the other hand, undue severity, which might lead to unwillingness on the part of neighbours and friends to come forward and give bail for persons under accusation.,

From the impugned order it does not appear whether any attention was paid to these points. The applicant is not present and it is not possible for me to make enquiry in these matters. Accordingly, I set aside the order of the learned Sessions Judge and remand the case back to him toe decide it afresh keeping in view the above stated points and the rules quoted hereinbefore.

Revision allowed.

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