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Petitioner: HAJI ABRO VS Respondent: StateHonorable Justice Naimatullah PhulpotoNaushad Ali R. Tagar
2013 M L D 627
[Sindh]
Before Naimatullah Phulpoto, J
HAJI ABRO---Applicant
Versus
The STATE---Respondent
Criminal Revision Application No.S-24 of 2011, decided on 20th November, 2012.
(a) Criminal Procedure Code (V of 1898)---
---S. 514---Bail bond, forfeiture of---Reduction in surety amount---Forfeiture of entire bond without proof of mala fide or personal gain of surety---Propriety---Factors to be considered by court while forfeiting bail bond---Scope---Accused was granted bail by Trial Court on furnishing surety amount of Rs. 300,000---Applicant stood surety for accused, who after getting bail absconded on account of murderous enmity with the complainant party---Trial Court forfeited the entire bond of surety and imposed full fine amount of Rs. 300,000, with a direction to deposit the same within one month---Surety contended that he stood surety for accused on humanitarian grounds; that he made all possible efforts to produce the accused; that he was a poor person with a large family, and that he did not have sufficient sources of income---Validity---Imposing of whole fine amount upon the surety without any proof of mala fide or personal gain was not justified in the present case---Court should take a dynamic and progressive orientated approach while imposing fine upon the surety---Nature of offence, efforts made by surety to produce the accused and financial position of surety might be taken into consideration while passing orders---Record did not show whether any inquiry had been conducted to assess the surety's laxity/carelessness or otherwise in his efforts to produce the accused---Fine of Rs.300,000 imposed by Trial Court was reduced to Rs.200,000, with a direction to deposit the same before the Trial Court within one month---Revision application was disposed of accordingly.
(b) Criminal Procedure Code (V of 1898)---
----S.514---Bail bond, forfeiture of---Factors to be considered by court---Scope---Approach of the court should be dynamic and progressive orientated while imposing fine upon the surety---Nature of offence, efforts made by surety to produce the accused and financial position of surety might be taken into consideration while passing orders (for forfeiture of bail bond)---Balance should be kept between undue severity and undue leniency at the time of passing the order----Undue severity by courts might lead to unwillingness on part of neighbours and friends of accused to come forward and give bail for him.
Naushad Ali R. Tagar for Applicant.
Naimatullah Bhurgri for the State.
ORDER
NAIMATULLAH PHULPOTO, J.---Applicant/surety Haji Abro through this criminal revision application has challenged the order dated 24-3-2011 passed by the learned V-Additional Sessions Judge, Larkana, in Sessions Case No.114 of 2002, re State v. Ghulam Asghar and others.
Concise facts leading to the filing of the instant criminal revision application are that applicant Haji Abro stood surety for accused Manzoor Junejo on 13-3-2006. Bail was granted to the accused by the trial Court on furnishing surety in the sum of Rs.300,000 (Three Lac) and P.R bond in the like amount in Crime No.16 of 2002, registered at Police Station Badeh, under sections 302, P.P.C.
After grant of bail to accused, applicant stood surety, accused was released on bail and thereafter absconded away. Surety could not produce the accused. Notice under section 514, Cr.P.C., was issued to the surety. Surety failed to produce the accused. Learned V-Additional Sessions Judge, Larkana forfeited the entire bond of surety and imposed full fine amount of Rs.300,000 (Three Lac), with direction to deposit the same within one month and in case of default the same shall be recovered according to law. Above order of trial Court is impugned before this Court.
At the very outset, learned counsel for the applicant/surety instead of arguing this revision application on merits requested for moderate reduction in the forfeiture amount of surety on the grounds that applicant had stood surety on humanitarian grounds and had gained no monetary benefit in this regard. Learned advocate for the applicant further submitted that all the possible efforts have been made by the surety to produce the accused, but accused has absconded away due to fear of his death on account of murderous enmity with his opponents. It is further submitted that surety is a poor person and has large family having no sufficient income source.
Mr. Naimatullah Bhurgri, learned State Counsel, recorded no objection if fine amount imposed upon surety by the trial Court is reduced to some reasonable extent.
I have carefully heard the learned Counsel for the parties and have gone through the impugned order.
In my considered opinion, imposing whole fine upon the surety without any proof of mala fide or personal gain was not justified in this case. No doubt, there is no legal embargo that amount of bail bond in full cannot be forfeited, but still approach of the Court should be dynamic and progressive oriented while imposing the entire fine upon the surety. Nature of the offence, efforts made by the surety to produce the accused and financial position of surety may be taken into consideration while passing orders. In this case the learned counsel has contended that the surety has made all possible efforts to produce the accused, who has absconded away due to murderous enmity. Balance should be kept between undue severity and undue leniency at the time of passing the order. Undue severity, which might lead to unwillingness on the part of neighbours and friends to come forward and give bail for persons under accusation. It has not been demonstrated in the present case as to what inquiry if any has been made before the trial Court in assessing the surety's laxity/carelessness or otherwise in his efforts to produce the accused.
Thus, keeping in view the above facts and circumstances, order of the trial Court dated 24-3-2011 is modified and fine of Rs.300,000 (Three Lac) is reduced to Rs.200,000 (Two Lac). This criminal revision application is disposed of in above terms. The surety shall deposit Rs.200,000 (Two Lac) before the trial court within the period of one month, else the same shall be recovered by the trial Court in accordance with law.
MWA/H-30/L Order accordingly.