ABDUL GHANI vs THE STATE
This criminal revision application arose from an order imposing a penalty on a surety for an accused who absconded during trial. The applicant stood surety for his brother, who was charged under the Prohibition (Enforcement of Hadd) Order, 1979, but subsequently absconded. The trial court forfeited the bail bond and imposed the full penalty amount of Rs. 100,000 upon the surety. The surety challenged this order, citing family circumstances for the accused's absence. The High Court affirmed the forfeiture of the bond, noting that the surety failed to provide sufficient proof for the accused's absence. However, the Court emphasized that in penalty cases, a balance must be struck between undue leniency and undue severity, considering the relationship between the parties and the eventual acquittal of the accused. Given that the surety acted out of familial duty rather than monetary gain, and the accused was ultimately acquitted, the Court upheld the forfeiture but exercised discretion to reduce the penalty amount from Rs. 100,000 to Rs. 50,000.
- Does the fact that an accused was eventually acquitted affect the liability of a surety whose bond was forfeited due to the accused's temporary abscondence?
- What factors should a court consider when determining the quantum of penalty to be imposed on a surety for a forfeited bail bond?
- Can a court reduce the penalty amount imposed on a surety for a forfeited bail bond if the surety acted out of familial relationship rather than monetary gain?
- Article 3/4, Prohibition (Enforcement of Hadd) Order, 1979
ORDER
' The facts leading to the present Criminal Revision Application, filed by applicant Abdul Ghani, are that he stood surety for accused Muhammad Aslam in Sessions Case No,31 of 1996 before the Sessions Judge, Karachi (West) under Article 3/4, Prohibition (Enforcement of Hadd) Order, 1979, which arose out of F.I.R. No,15 of 1996 of Police Station Pak Colony, Karachi.
2. The brief facts of the prosecution case are that about 100 (one hundred) grams of heroine powder was recovered from the possession of accused Aslam on 12-1-1996 and after usual investigation he was sent up to stand trial.
3. The accused who was granted bail by the trial Court on 16-4-1996 in the sum of Rs, 100,000 (one hundred thousand) upon furnishing surety he was released on 23-1-1997. He appeared on some dates of hearing before the trial Court but on 2-5-1997 applicant/accused absconded. The bail bond of accused was forfeited and non-bailable warrants were issued against him, so also a notice was issued to his surety. The surety furnished explanation, which was found unsatisfactory and a sum of Rs,100,000 (one hundred thousand) was ordered to be paid by the surety. Being aggrieved and dissatisfied with the impugned order of penalty, dated 21-7-1999, the applicant/surety has preferred the present revision application.
4. I have heard Mr. Naeem Akhtar Khan Tanoli, learned counsel for the applicant and Mr. Saad Qureshi, learned counsel on behalf of A.-G. For the State. The latter has supported the impugned order. I have also perused the material placed on record.
5. There is no cavil with the proposition that drug paddlers deserve no sympathy and their act amounts to genocide against the society at large.
6. The record reveals that after release the accused jumped bail on 2-5-1997 but subsequently he was arrested, tried and acquitted by the learned Sessions Judge, Karachi, vide judgment, dated 19- 12-1998.
7. The explanation of abscondence given by the surety was that one of his brother, namely, Akram, who too was involved in another case, was kidnapped by the dacoits and that the accused Aslam and applicant/surety went in search of him towards Balochistan, hence the accused remained absent. This explanation did not find favour with the trial Court and penalty was imposed. I, too, concur with the trial Court as no sufficient proof for kidnapping was placed on record.
8. In the cases of penalty, it is well-settled that Court has to see whether there was any comity of interest, between the surety and absconding accused and balance has to be kept between undue leniency and undue severity looking towards the facts and circumstances of each case.
9. Admittedly, the applicant/surety was real brother of the absconding accused Aslam. He did not stand surety for any monetary gain but out of blood relationship, benevolence and sympathy.
10. The charge of drug trafficking was also not proved against the accused Aslam and he was acquitted. The accused Aslam remained absent for 7 to 8 months before the Trial Court.
11. Looking towards the peculiar facts and circumstances of the case the order of forfeiture of bond is maintained. The penalty is, however, reduced from Rs,100,000 (one hundred thousand) to Rs,50,000 (fifty thousand). The revision application stands disposed of with the above modification.