ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

Cr. Revision Appl. No.33 of 2009

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For Katcha Peshi.

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Dated: 22nd April 2009

Applicant Ubaidullah present in person.

Mr. Ghulam E. Nabi, Addl. Prosecutor General Sindh.

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      By filing this revision application the applicant has prayed for setting aside the order dated 16.2.2009 passed by the learned II-Additional Sessions Judge, Malir Karachi, in Sessions Case No.27 of 2002 (Re. State Vs Inayatullah) by which the surety submitted by the applicant was forfeited and he was directed to deposit entire surety amount of Rs.50,000/- with the Nazir of that Court.

      In short the facts of the case are that the co-accused Iftikhar Ahmed was granted bail by the Trial Court and the applicant being his brother stood surety for him in the sum of Rs.50,000/-. According to the impugned order, the accused remained absent from 03.9.2007 upto 7.7.2008 and the Trial Court has issued NBW against him and notice was also issued to the applicant being surety.

      The applicant, who is present in person, states that he stood surety without any monetary gain and that the accused was his brother and expired on 30.12.2007, for which, FIR was lodged at PS Ibrahim Hyderi. He further states that he was not aware about the absence of accused as for that period he was out of city due to tableeq visit and has received notice after death of the accused. He also submits that he is a poor person and is not in a position to pay the entire amount of surety and requests for reduction of the same.

      Learned APG has supported the impugned order and submits that under the circumstances the Trial Court has passed proper order and no exception can be taken. He, however, conceded that this Court has the power to reduce the penalty.

      I have heard the applicant in person and learned APG for the State and perused the record available before me.

      Perusal of the order it is not clear as to for how many dates the accused was remained absent. Learned Trial Court has counted absence from 3.9.2007 upto 7.7.2008 without considering that as per the police report the accused expired on 30.12.2007 and the absence after his death has no consequence or relevance.

Before forfeiting the surety and imposing penalty of entire amount the Trial Court should consider for how many dates the accused was remained absent and whether the same was with some plausible cause or not, whether surety has been furnished against consideration or it was voluntarily and the role of surety in absconscion of the accused. The Trial Court has not attended the above question and has imposed the penalty which appears to be not justified under the circumstances of the case. In the reported case of Dildar and another Vs The State (PLD 1963 SUPREME COURT 47) a full bench of the Hon’ble Supreme Court of Pakistan has held as under: -

“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 severity, which might lead to unwillingness on the part of neighbours 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 matter as whether the sureties have any direct interest through financial or blood connection with the accused, whether they have connived at or procured the absence of the accused, and whether they have done their best to secure his attendance. These matters have not been enquired into by the Courts below.”

The applicant has also pleaded that he is a poor person and is not in a position to pay the entire amount.

In the reported case of Abdul Haleem Vs State (2003 SCMR 929) the Hon'ble Supreme Court of Pakistan has reduced the surety on the ground of poverty of the surety.

In view of the above position, there appears to be a fit case to reduce the penalty from Rs.50,000/- to Rs.10,000/-. Reduced amount of Rs.10,000/- be deposited by the applicant with the Nazir of District Courts, Malir Karachi within 15 days.

The application stands disposed of in the above terms.

JUDGE