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Criminal Appeal No. K‑1 of 1962, decided on 13th December 1962.

(On appeal from the judgment and order of the High Court of West Pakistan, Karachi Bench, Karachi, dated the 26th March 1962, in Criminal Revision Application No. 540 of 1961).

S. 514‑Bail bond Forfeiture‑Balance to be kept between undue leniency and undue severity‑Assessing extent to which bond should be forfeited‑Matters to be taken into consideration by Court‑Sureties acting through mere benevolence on behalf of accused‑Forfeiture of bonds in sum of Rs. 5,009 reduced ;o Rs. 1,000 each.

Appellants in person.

Zahoor‑ul‑Haq Advocate Supreme Court instructed by Ijaz Ali Attorney for Respondent.

Date of hearing : 13th December 1962.

‑This is an appeal by two persons, Dildar and Ghulam Hussain against an order of the Sub‑Divisional Magistrate, Old Town, Karachi, forfeiting bail‑bonds in the sum of Rs. 5,000 given by each of these persons to ensure the appear ance in that Court of one Mir Jan an accused person in a case of theft and possession of stolen property. Mir Jan failed to appear in the case on the 9th June 1959, whereupon, Mr. Zaidi the then Sub‑Divisional Magistrate, Old Town, Karachi, issued notice both to Mir Jan as well as to his sureties to show cause why the bonds should not be forfeited. The proceedings were thereafter transferred to another Court, but as a result of further orders, they were finally restored to the Court of the Sub -divisional Magistrate, Old Town, which by this time was presided over by Mr. Abrar Husain. The order of for further in respect of the entire amount was made by Mr. Abrar Husain on the 26th of April 1960. It seems that one day earlier the sureties had approached the Additional District Magistrate for an order of transfer of the proceedings from Mr. Abrar Husain' s Court, and that on the 26th April, the application had reached Mr. Abrar Husain with a request for his views on the grounds set forth. Mr. Abrar Husain had however allowed several previous adjournments to the sureties and on this occasion he declined to adjourn the case any further and proceeded to make the order of forfeiture. Against that order au appeal was taken before the Additional District Magistrate without success, and thereafter a revision was unsuccessfully attempted before the Sessions Court and a further revision was taken before a learned Single Judge of the High Court, against whose order of dismissal, special leave to appeal was granted by a Division Bench of this Court.

We have perused the successive orders made in the case by the judicial authorities mentioned above, and find that they have proceeded exclusively on technical grounds. The point was taken that because of the transfer of the case for an intervening period, to a Magistrate who was not the Sub‑Divisional Magistrate, Old Town, Karachi, the proceedings had been vitiated. It was con tended that Mr. Abrar Hussain's jurisdiction to decide the case on the 26th April 1960, was affected by the existence of the transfer application of which he was aware. It was said that the two sureties should have been proceeded against separately. The only point of fact which was considered in any of the judgments of the Courts below was as to whether there was any truth in the allega tion of the sureties that Mir Jan was dead. It seems that time had been taken by them to procure evidence as to the death, but eventually none was produced.

Before us, the two sureties appeared in person, and as one of them, Ghulam Hussain was insisting that he could produce proof or the death of Mir Jan at some place in the Multan District, we allowed him an opportunity to procure such evidence as he could.

Apparently, his information was entirely vague, so that his application to the Municipal Medical Officer of Health in Multan for a copy of a death certificate was unsuccessful. However, there are other matters of fact which are relevant to the examination of a case such as the present, with which we shall deal presently, pausing here only to disposed of the technical points raised.

The point of jurisdiction is clarified by the fact that the order of forfeiture is by the same Court as that in which default of appearance was made and by which the notice to show cause against forfeiture was issued in the first instance. The question of misjoinder is immaterial, since no prejudice is shown. It is clear that in the absence of a stay‑order of any kind Mr. Abrar Husain was entitled to dispose of the notices on the 26th April 1960 as he did. 1t was clear by that time that nothing more than further delay was being attempted. The only Court which had jurisdiction was the Court then presided over by Mr. Abrar Husain. It should be mentioned here that there were accused along with Mir Jan in the case above mentioned, two other persons who were acquitted eventually. These were a receiver and an intermediate holder of the alleged stolen property, and it is o point of some importance that the eventual finding was that the goods in the case were proved to have been stolen. As the allegation was that they had been taken to the intermediate custodian by Mir Jan the acquittal of the other two co‑accused does not necessarily affect the case against the latter.

Where, however, we find defect in the proceedings taken against the appellants is in this, namely, that no effort appears to have been made by the Courts below to enquire into the relevant matters affecting the decree of their responsibility. Sureties are not constituted s custodians of accused persons, and in the absence of proof to the contrary, it may generally be assumed that they do not gain by standing surety. The system of releasing accused persons on bail has several aspects of importance to the administration of justice generally. It avoids anything in the nature of punishment in advance, since restraint upon liberty even when applied for the purpose of ensuring that a case is duly enquired into and judged, necessarily involves loss of personal rights. At the same time, the release of accused persons on bail assists in the administration of justice by preventing over crowding in the available spaces of imprisonment. 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 sever to, which might lead to unwillingness on the part of neighbors and friends to come forward and give bail for persons under accusation. Finally, in assessing to what extent the bond should be forfeited, the Court would have regard to such matters as whether the sureties have any direct interest through financial or blood con nection with the accused, whether they have connived at or procured the absence of the accused, and whether they have done their rest to secure his attendance. These matters have not been enquired into by the Courts below. We have accordingly though fit to question the two sureties ourselves on these points.

We find that both the sureties acted through mere benevol ence on behalf of another shopkeeper whom they knew either directly or through an agent. Ghulam Hussain had a shop about 20 yards away from that of Mir Jan who had been a customer of his for some 10 years and lie had always thought of Mir Jan as an honest man because his behaviour was good. When he was arrested, a relative of his named Muhammad Yamin approached Ghulam Hussain who agreed out of neighbourly feeling to stand surety. For some time Mir Jan appeared regularly in Court until he fell ill and absented himself on medical certificate, and then while still unwell, he left Karachi for some place near Multan on hearing of his mother's illness. Ghulam Hussain later heard from Mir Jan's relative Muhammad Yamin that in the Multan area, Mir Jan contracted double pnemonia and died there in June or July 1959. Ghulam Hussain was not connected at all with Mir Jan who was a Pathan and came originally from the Frontier.

Dildar runs a hotel in Karachi and comes from the United Provinces of India originally. He became surety for Mir Jan at the request of one of his servants Zarin Khan Pathan, a relation of Mir Jan. Zarin Khan had been working for Dildar for some 3 or 4 years. Relying on what Zarin Khan said, he stood surety. Later on, Mir Jan disappeared and Zarin Khan also disappeared so that he was helpless in the matter of procuring Mir Jan's attendance.

We have not thought it necessary to make further investiga tion into the truth of the statements made by these persons, as it seems clear that Ghulam Hussain and Dildar themselves have nothing in common and that they are not connected with Mir Jan, who came from a different part of the country. On the face of it, it seems clear that these two persons stood surety for Mir Jan out of ordinary fellow‑feeling, but they certainly appear to have taken their responsibility altogether too lightly. It does not appear that either of them gained any benefit from standing bail for Mir Jan, not do they appear to be in any way connected with his alleged criminal activity, or with his escape from Karachi. Whether or not either of them made an attempt to enquire in Multan regarding Mir Jan at any earlier stage, it is certain that Ghulam Hussain tried to do so under this Court's direction without success. Since Muhammad Yamin too has left Karachi and Ghulam Hussain's information was completely vague, it was natural that his effort should not have succeeded.

Taking all these circumstances into account, we find that the two appellants had indeed forfeited their bonds but we consider at the same time that the full amount of the bonds need not have been required from them and that, in all the circumstances, their default will be adequately punished by requiring each of them to pay a sum of Rs. 1,000 and we allow the appeal to that extent. The bonds will be forfeited to the extent of Rs. 1,000 each.

K. B.A./A. H. Appeal partly accepted.

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