Cr. Misc. Appln. No. D – 369 of 2015

Date	Order with signature of Judge

1. For order on office objection.

2. For Katcha Peshi.

3. For order on M.A No. 2871/2015.

15-09-2015

Mr. Shamsuddin N. Kobhar, advocate for the applicant.

Mr. Zulfiqar Ali Jatoi, learned D.P.G for the State.

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Through instant criminal miscellaneous application filed U/S 439 Cr.P.C, the applicant Shokat Ali s/o Muhakumddin, who stood surety for accused Barkat Ali before Special Judge, Anti-Terrorism Court, Sukkur in Crime No. 20/2011, registered at police station Khanpur Mahar, U/S 365-A P.P.C r/w Section 7 of ATA, 1997, has impugned the order dated 17.04.2015 passed by learned ATC Judge, Sukkur, whereby the applicant/surety Shokat has been directed to deposit surety amount of Rs.200,000/- as penalty before the court in view of non-appearance of the accused namely Barkat Ali, who was on bail.

2. Learned counsel for the applicant submits that pursuant to notice issued U/S 514 Cr.P.C, applicant surety appeared before the court of learned ATC Judge, Sukkur on 20.01.2015 in person and requested for time to file reply and to produce accused Barkat in Court. Thereafter, according to the learned counsel for the applicant, the applicant made all possible efforts to trace out the whereabouts of accused Barkat Ali and to produce him in court, and after great efforts, the accused was traced out and produced in court on 28.05.2015 by the applicant voluntarily. However, according to the learned counsel for the applicant, the learned Special Judge, Anti-Terrorism Court, Sukkur, has passed the impugned order on the same date by directing the applicant to deposit the amount of Rs.200,000/- as penalty within two days. Per learned counsel, the applicant was never served with further notice or the warrants which were issued by the ATC Sukkur, therefore, he was unaware about fixation of the case in Court, and has voluntarily produced the accused in court, which reflects upon his good faith, therefor, he could not have been penalized vide impugned order passed by the learned Special Judge, Anti-Terrorism Court, Sukkur. It is further contended that even the accused persons nominated in the aforesaid crime including the accused Barkat Ali have duly been acquitted from such crime vide order dated 28.07.2015 passed by Special Judge Anti-Terrorism Court, Sukkur. Copy of such judgment has been placed on record. It has been prayed that the impugned order passed by the learned Special Judge, Anti-Terrorism Court, Sukkur is too harsh, which may be set-aside and the surety furnished before the court of ATC Judge, may be directed to be returned to the applicant as the accused after having voluntarily appeared before the Court, has duly been acquitted by the learned Anti-Terrorism Court.

3. Conversely, the learned D.P.G submits that it is the duty of surety to produce the accused person before the court on each and every date, whereas, in the instant case, the accused Barkat Ali jumped over the bail and did not appear before the court of Special Judge, Anti-Terrorism Court, Sukkur on number of dates, where after, notice U/S 514 Cr.P.C was issued to the applicant/surety for production of the accused, who neither filed any reply nor produced the accused on the next date of hearing, i.e. 04.02.2015, which was given by the Anti-Terrorism Court for such purpose. However, keeping in view the peculiar facts and circumstances of the instant case as stated by the learned counsel for the applicant, which according to learned D.P.G, reflect that the applicant/surety made since efforts to produce the accused Barkat Ali in Court voluntarily, whereas, he was not served with bailable warrants issued by learned Special Judge, Anti-Terrorism Court, therefore, a lenient view may be taken and the amount of the penalty may be reduced reasonably.

4. Heard the learned counsel for the applicant, learned D.P.G and perused the record.

5. There is no cavil to the legal propositions as argued by the learned D.P.G that it is duty of the surety to ensure the appearance of the accused who is granted bail by the Court and for whom, the applicant has stood surety, on each and every date of hearing. However, in the instant case, it appears that the applicant/surety after notice U/S 514 Cr.P.C appeared in person in court and made sincere efforts to produce the accused Barkat Ali voluntarily, inspite of the fact that he was not served with any further notice or bailable warrants issued by the ATA Court, whereas, he eventually produced the accused Barkat Ali in Court on 28.05.2015. It has been further observed that since the applicant did not have the assistance of any lawyer, and appeared in person before the ATA Court, therefore, we are inclined to give benefit of doubt regarding his incomplete knowledge of Court’s procedure, and therefore, we are of the view that no useful purpose will be served if the applicant/surety is penalized for non-appearance of accused on the fateful date, particularly, when the applicant displayed due diligence in producing him in Court voluntarily on the date when impugned order of penalty has been passed.

6. Accordingly, instant criminal miscellaneous application is allowed, and the impugned order is hereby set-aside. Listed M.A No. 2871/2015 is disposed of in above terms.

Judge

Abdul Salam/P.A