ABDUL FATTAH vs THE STATE
This criminal revision petition is filed under Section 439 of the Code of Criminal Procedure 1898 against an order passed by the Additional Sessions Judge, Larkana, whereby the surety bond of the applicant was forfeited and a penalty of Rs. 50,000 was imposed due to the absence of one of the accused persons for whom the applicant stood surety. The core legal question concerns the propriety of forfeiting the surety amount and imposing a full penalty when the surety acted on humanitarian grounds and three out of four accused continued to regularly attend the court. The High Court partially allowed the revision application, holding that in view of the peculiar circumstances where only one accused misused the concession of bail and the surety acted as a nekmard on humanitarian grounds, the penalty amount was excessive. The court laid down the principle that while surety bonds must be enforced upon default, mitigating circumstances such as partial compliance by the accused and the humanitarian intent of the surety can be considered for reducing the penalty amount.
- Whether the penalty for forfeiture of a surety bond can be reduced in revision considering mitigating circumstances?
- Can a surety's humanitarian intent and the partial attendance of accused persons serve as grounds for mitigating a surety penalty?
- Section 439, Code of Criminal Procedure 1898
- Section 17(3), Offences Against Property (Enforcement of Hadood) Ordinance, 1979
ORDER
1. SYED HASAN AZHAR RIZVI, J.---Deferred.
2. By this order I would dispose of the criminal revision filed under section 439, Cr.P.C. by the applicant against the impugned order dated 8-6-2010 passed by IV-Additional Sessions Judge, Larkana in Sessions Case No,20 of 2006 re: The State v. Abdul Karim and others.
2. The brief facts of the case are that the present applicant stood surety before the learned Sessions Judge, Larkana on 5-1-2006 for grant of bail of four accused namely Abdul Wallid, Abdul Wahab, Mahfooz Ahmed and Zulfiqar Ali in the sum of Rs,50,000 each. The said bail was confirmed on 25-2- 2006. Applicant Abdul Wahid attended the Court and since 23-8-2007 he was called absent. Notice was issued to the applicant/surety on 10-10-2007 who filed the reply to the show-cause notice on 15-5-2008. In his reply, the applicant/surety submitted that he is nekmard of the locality, accused made request to him to stand surety and the applicant/surety without any relation with the accused voluntarily, appealed and stood surety only on the humanitarian grounds. The accused is neither related nor is caste-' fellow of the applicant/surety. The trial Court by the impugned order forfeited the surety amount of Rs,50,000 and imposed penalty of Rs,50,000 with direction to deposit the same on or before next date of hearing i,e, 24-6-2010 of the case without fail.
3. I have heard Mr. Shamsuddin Abbasi, learned counsel for the applicant/surety and Mr. Ali Raza Pathan, State Counsel. According to learned counsel, applicant Abdul Fatah stood surety for four accused persons including Abdul Wahid in F.I.R. No,113 of 2005 under section 17(3), Offences Against Property (Enforcement of Hadood) Ordinance, 1979 purely on humanitarian grounds. The order passed by the trial. Court is based on misreading and without considering the case-law on the point. Learned counsel for the applicant relied upon 2001 PCr.LJ 1599, PLD 1996 Lahore 600, 2002 YLR 237 and 2004 YLR 99.
4. Mr. Ali Raza Pathan, State counsel opposed for the grant of present application.
5. I have heard the learned counsel for the applicant/surety, State Counsel and perused the record and the case-law.. It is apparent from the record that applicant/ surety stood surety in the case of total four persons out of which three persons are still attending the Court since 2005. In view of the peculiar circumstances as argued by the learned counsel for the applicant/surety that the applicant/surety who is nekmard who stood surety for four accused persons on humanitarian grounds out of whom only one misused the concession of bail, therefore, the penalty amount of Rs,50,000 imposed against the present applicant/surety by the learned trial Court is hereby reduced to Rs,20,000 which should be paid by the applicant/surety in the trial Court within a period of 30 days from the date of order failing which the trial Court shall be competent to take further legal action against the surety.
6. Criminal Revision Application stands disposed of in the above terms.