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Criminal Revision No. 117 of 1986, decided on 9th February, 1987.

‑‑‑S. 514‑‑Surety bond, forfeiture of‑‑Surety making number of attempts to find out whereabouts of accused so as to make him appear before Trial Court but with no success‑‑Accused, however, arrested by Police and facing trial since then‑‑Order of Trial Court whereby surety was imposed with penalty of Rs. 10,000 set aside and case remitted to Trial Court, for re‑examination and deciding afresh after hearing surety in the light of principles laid down by superior Courts in that behalf.

Dildar and another v. The State P L D 1963 S C 47; Allay Warayo v. The State 1982 P Cr. L J 946; Banaras v. The State 1975 P Cr. L J 945; Haji Abdul Karim v. The State 1983 P Cr. L J 137 and Allah Bakhsh v. The State 1984 P Cr. L J 1606 ref.

Iqbal Ahmad for Petitioner.

Muhammad Nawaz Abbasi, A.A.‑G. for the State.

Per F.I.R. No. 50, dated 16‑5‑1985, registered with Police Station Saddar Beruni, Rawalpindi, one Abdul Sattar was accused of offence under section 11 of Prohibition (Enforcement of Hadd) Order, 1979. After arrest, he was admitted to bail in the sum of Rs. 15,000 with one surety.

Sabir Hussain Shah, applicant stood surety for him and furnished the necessary bail bonds. It appears, Abdul Sattar, absented from the Court and proceedings under section 514, Cr.P.C. were initiated against the surety. Vide order, dated 4‑6‑1986, surety bond was forfeited and petitioner was asked to pay sum of Rs. 10,000 as penalty. Appeal preferred in the Court of Additional Sessions Judge, Rawalpindi also failed and was dismissed on 28‑10‑1986. In revision, it is contended for the surety that the Courts below were not right in forfeiting the bond and requiring the petitioner to pay the amount of Rs. 10,000 as penalty. Reliance was placed on Dildar and another v. The State P L D 1963 S C 47; Allay Warayo v. The State 1982 P Cr. L J 946; Banaras v. The State 1975 P Cr. L J 945; Haji Abdul Karim v. The State 1983 P Cr. L J 137 and Allah Bakhsh v. The State 1984 P Cr. L J 1606. It was strenuously argued that the petitioner, for no reasons other than humanitarian and sympathetic, had stood surety for the accused, and, had not received any benefit, monetary or otherwise, from him. Also argued that the accused had since been arrested by the police and is facing trial, in the case, registered against him. It was submitted that the Courts below, while forfeiting the surety bond and requiring the petitioner to pay Rs. 10,000 as penalty had not kept in view the relevant legal considerations bearing on the liability of the surety. Criminal Revision was admitted to hearing on 8‑11‑1986 and has come up for hearing in presence of the counsel for the parties. It is correct that the petitioner stood surety and bound himself to present the accused before the Court till the conclusion of the trial and this responsibility continued so long as the case was pending. There is no dispute that the accused absented and in the act of the accused, trial was delayed, and in addition, inconvenience was caused to the Court. It is seen from the record that surety made number of attempts to find out the whereabouts of the accused so as to make him appear before the trial Court. His efforts, however, did not succeed. That notwithstanding, accused is stated to have been re‑arrested by the police and is before the Court now. In my view, surety was entitled to right of hearing, which included right to lead evidence to prove the circumstances leading to the absence of the accused and also the efforts made by him to secure his presence before the Court. The Courts below were equally obliged to examine, whether surety was responsible or had connived at the absence of the accused from the Court. These and other related circumstances taken note of in the decided cases have important bearing on the liability of the surety as also the amount of penalty required to be paid by him to the State. In dealing with the sureties, the Court is, neither to be too strict nor too lenient. It should take a middle course, so that, the whole system of providing sureties does not collapse. I do not think that the learned Courts below in forfeiting the bond and requiring the petitioner to pay Rs.10,000as penalty have brought these relevant considerations to bear on their ultimate decisions. Courts were obliged to take notice of the decisions of the superior Courts and act in accordance thereof. Accordingly, the case requires re‑examination. For the foregoing, criminal revision is allowed, impugned orders set aside and the case remitted to the trial Magistrate to re‑examine the same and decide it afresh in accordance with the observations made above as also afore‑noticed case‑law. Records be returned. Petitioner is directed to appear before the Court below on 12‑2‑1987.

S.G.D./S‑19/L Case remanded.

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