DILSHAD AHMAD and others vs THE STATE

ORDER

' Through this criminal revision, an order under section 514 of the Criminal Procedure Code passed by Mian Nasir Hussain, learned Additional Sessions Judge, Daska, is called into question.

2. The case in which the petitioners stood sureties for the accused Zaka Ullah and Ihsan Ullah, now proclaimed offenders, stemmed from F.I.R. No,96 of 1999, registered at Police Station Sambrial, District Sialkot, under section 302/34 of the Pakistan Penal .Code. The amount of surety was Rs,50,000 each. The bail bonds were submitted on 30-10-1994. The accused Ihsan Ullah and Zaka Ullah had absconded during the trial of the case.

2-A. A show-cause notice was given to the sureties and they were heard before the trial. Court.

They also submitted their written replies on 18-10-1997. They showed their ignorance about the whereabouts of the accused and asked the Court for mercy.

3. The learned trial Court came to the conclusion that the petitioners were relatives of the accused, their such explanation was unsatisfactory and directed them to pay the full amount against bail bonds amounting to Rs,50,000 each by 15-7-1999, otherwise their property, mentioned in the bonds, was to be forfeited.

4. According to the learned counsel for the petitioners, the order in question was harsh. That there was no justification for forfeiture of the full amount of the sureties. That there was no evidence of any connivance on the part of the sureties in connection with the abscondance of the accused.

5. A reference is made to the following case-laws in this connection:--

(i) Sardar Khan and others v. The State 1968 PCr.LJ 447,

(ii) Ghulam Haider v. Karim Baldish PLD 1963 SC 47,

(iii) Muhammad Khan v. The State 1986 PCr.LJ 2028, and

(iv) Bahadur Khan 'v. The State 1976 PCr.LJ 1283.

6. Grant of bail is an essential part of the system of administration of justice. It avoids punishing someone in advance and ensures liberty until a case is duly enquired into and adjudged. Whereas, the release of accused persons on-bail helps in preventing overcrowding in the already overcrowded prisoners. People come forward to stand surety for the accused out of ordinary fellow-feelings and invariably without any ambition for gain or benefit, rather for mere benevolence. Therefore, in dealing with cases of sureties who may be in default, a judicial mind is supposed to maintain a balance between undue leniency, which may be leading to abuse of the procedure and interference with the course of justice. Whereas, on the other hand, undue severity may lead to unwillingness on the part of neighbours and friends to come forward and give bail for persons under accusation. While maintaining this balance, the Courts are not supposed to act in a mechanical way. They are required to hold some sort of balance while determining to what extent a bond is to be forfeited. Some matters to be considered are: whether the sureties have any direct interest through financial or blood connection with the accused whether they have connived with or procured the absence of the accused, and finally whether they have endeavoured sufficiently to secure the attendance of the accused.

7. A perusal of the order of the learned Additional Sessions Judge reflects no investigation for arriving at a just conclusion with respect to a just quantum for the purposes of forfeiture. This Court too does not have any yard stick for keeping a balance between severity and leniency for disposal of this petition. The learned Court below had merely satisfied itself for purposes of severity of its action on his part by saying that sureties were relatives of the accused which is enough.

8. When a judicial mind has to determine a question, it has to act judicially and not in an executive manner. The exercise of discretion by the learned trial Court in this connection does not fulfil the requirements of justice whether to the State or to the petitioners in this connection.

9. As the order in question does not appear to be a judicial order because of the observations given above and as this Court too does not have sufficient facts to investigate the conduct of the petitioners and as it has become also necessary to guide the Courts below on such questions, it will be proper to set aside the order under reference and remand the case to the learned trial Court for a decision afresh keeping in view the observations made hereinabove and the case-law. The petitioners were not present today they are asked through their counsel to appear before the learned trial Court on 8th of September, 1999, for fresh hearing. This criminal revision petition stands disposed of.