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Criminal Revision No. 39 of 1,983, decided on 14th April, 1984.
‑‑ S. 514‑Forfeiture of bonds‑Accused for whom petitioners stood sureties and executed bail bonds absenting himself and peti tioners failing to produce him in site of notice‑Trial Court forfeiting bonds and imposing a penalty of full amount under S. 514, Cr. P. C.‑Revision against ‑ Petitioners were neither served with a notice to show cause against imposition of penalty nor they were provided with an opportunity to produce evidence in their defence‑Trial Court not considering principles laid down in P L D 1963 S C 47 while passing order of forfeiture and imposing full amount of penalty on petitioners‑Order of trial Court set aside and case remanded for decision afresh.
Dildar and another v. The State P L D 1963 S C 47 ref.
Muhammad Iqbal Mohmand for Petitioners.
Asghar Hussain Ali for the State. .
Date of hearing : 11th April, 1984.
Murtaza Shah and Jan Khitab (petitioners) stood sureties for accused Sher Muhammad, who was challaned alongwtth two others under sec tion 11/13/16,of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The petitioners executed surety bonds in the sum of Rs. 50,000. Accused Sher Muhammad absented and the petitioners failed to produce him in spite of notice. The learned Additional Sessions Judge, Charsadda, therefore, forfeited the bonds and imposed a penalty of the full amount under section 514, Cr. P. C. which was to be recovered from the petitioners by the Illaqa Magistrate, who was informed accord ingly.
2. The petitioners have challenged the order of forfeiture of the bail bonds in this revision. The learned counsel for the petitioners submitted that the petitioners were not served with a notice to show cause against the imposition of the penalty and they were also not properly served in the case. Further contends that the petitioners stood surety for the accused merely on humanitarian grounds and they had no direct interest of their own nor any blood connection with the accused. They had also tried their. best to secure the attendance of the accused but had come to know that he had gone to Afghanistan for the purpose of 'Jehad' and on his return he would be produced before the Court.
3. It appears that the petitioners were not served with a notice to show cause against imposition of the penalty. They were also not pro vided with an opportunity to produce evidence in their defence. The, petitioners are present in Court and they deny their thumb‑impressions on the summons issued by the learned Additional Sessions Judge. The bail bonds were forfeited and the full amount of penalty of Rs. 50,000 was imposed. In Dildar and another v. The State (PLD1963SC47), keeping in view the circumstances of the case, the order of forfeiture of the bail bonds in the sum of Rs. 5,000 was interfered with and the amount of penalty was reduced to Rs. 1,000. It was also observed that :‑
"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."
It was also held that in assessing to what‑extent the bond should be for feited the Court would have regard to‑such matters as whether the sureties have any direct interest through financial or blood connection with the accused, whether they have contrived at or procured the absence of the accused, and whether they have done their best to secure his attendance.
4. In the case in hand it is clear that the above mentioned points have not been considered by the learned Additional Sessions Judge before passing the order of forfeiture and imposing full amount of the penalty on the petitioners. Therefore, the impugned order of the learned Additional Sessions Judge is set aside and the case remanded back to him for decision afresh keeping in view the points stated above after providing the p6ti tioners an opportunity to show cause against the imposition of the penalty by producing evidence if so desired.
5. The petitioners are directed to appear before the learned Addi tional Sessions Judge, Charsadda, on 28th April, 1984.
H. A. K. Case remanded.
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