Hamid Ali Mirza, J.--This civil petition for leave to appeal is directed against the judgment dated 25.4.2003 in Writ Petition No, 1038 of 2003 passed by learned Judge in Chambers of the Lahore High Court, Rawalpindi Bench, Rawalpindi whereby the said petition was dismissed.
2. Brief facts of the case are that the petitioner was convicted under Section 324 PPC and sentenced in a criminal case for his murderous assault upon Muhammad Irfan Respondent No, 3 by the trial Court against which judgment of conviction and sentence, the petitioner preferred an appeal before the Sessions Judge Attock who dismissed the same but reduced amount of compensation from Rs, One lac to Rs, Fifty thousand. The petitioner then filed Criminal Revision No, 149 of 2002 in the High Court which petition was also dismissed maintaining the conviction and sentence. The petitioner served out the substantive sentence and simple imprisonment in lieu of the fine and compensation. However, the compensation amount of Rs, Fifty thousand was not paid by the petitioner to Respondent No, 3, therefore the latter filed an application before the trial Court for recovery of the same which application was dismissed on 4.2.2003 against which decision the Respondent No, 3 filed criminal revision before the Sessions Judge Attock who allowed the same vide his order dated 8.4.2003. The petitioner preferred writ petition against the said order before the High Court which was dismissed as per impugned judgment, hence this petition.
3. We have heard-learned counsel for the petitioner and perused the record.
4. The only contention of the learned counsel for the petitioner is that as the petitioner has served out the substantive sentence as well as simple imprisonment in lieu of the fine and compensation, therefore, he was not liable to pay the compensation awarded by the Court to the Respondent No, 3.
5. We do not find merit and substance in the said contention of the learned counsel for the petitioner.
6. Provisions of Section 544-A, Cr.P.C. reads as under :-- "544-A. Compensation to the heirs of the person killed, etc. (1) Whenever a person is convicted of an offence in the commission whereof the death of, or hurt, injury, or mental anguish or psychological damage to, any person is caused, or damage to or loss or destruction of any property is caused, the Court shall, when convicting such person, unless for reasons to be recorded in writing it otherwise directs, order the person convicted to pay to the heirs of person whose death has been caused, or to the person hurt or injured or to the person to whom mental anguish or psychological damage has been caused, or to the owner of the property damaged, lost or destroyed, as the case may be, such compensation as the Court may determine having regard to the circumstances of the case.
(2) The compensation payable under sub-section (1) shall be recoverable as if it were an arrear of land revenue and the Court may further order that, in default of payment or recovery as aforesaid the person ordered to pay such compensation shall suffer imprisonment for a period not exceeding six months, or if it be a Court of the Magistrate of the third class, for a period not exceeding thirty days.
(3) The compensation payable under sub-section (1) shall be in addition to any sentence which the Court may impose for the offence of which the person directed to pay compensation has been convicted.
(4) The provisions of sub-section (2-B), (2-C), (3) and (4) of Section 250 shall, as far as may be, apply to payment of compensation under this section.
(5) An order under this section may also be made by an appellate Court or by a Court when exercising its powers of revision."
Provisions of Section 386 of the Criminal Procedure Code runs as follows:-- "386, Warrant for levy of fine. (1) Whenever an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following: ways, that is to say, it may--
(a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender
(b) issue a warrant to the Collector of the District authorising him to realise the amount by execution according to civil process against the movable or immovable property, or both, of the defaulter: Provided that, if the sentence directs that in default of payment of the fine the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant.
(2) The Provincial Government may make rules regulating the manner in which warrants under sub-section (1), Clause (a), are to be executed, and for the summary determination of any claims made by any person other than the offender in respect of any property attached in execution of such warrant.
(3) Where the Courts issue a warrant to the Collector under Subsection (1), Clause (b), such warrant shall be deemed to be a decree, and the Collector to be the decree-holder, within the meaning of the Code of Civil Procedure, 1908, and the nearest Civil Court by which any decree for a like amount could be executed shall, for the purposes of the said Code, be deemed to be the Court which passed the decree, and all the provisions of that Code as to execution of decree shall apply accordingly Provided that no such warrant shall be executed by the arrest or detention in prison of the offender.
After reading the above provisions of law, it is evident from sub-section (2) of Section 544-A Cr.P.C., that amount of compensation shall be recoverable as an arrear of land revenue and in case of default of payment of recovery, the said convict shall suffer imprisonment for a period of not exceeding six months. Sub-section (3) of Section 544-A, Cr.P.C. further provides that compensation payable under subsection (1) shall be in addition to any sentence which Court may impose for the offence upon the convict. One could find difference when the provisions of Sections 544-A and 386 of the Criminal Procedure Code are read in juxtaposition. In case of proviso I of sub-section (1) of Section 386, if convict has undergone whole of such imprisonment in default of payment of fine, no Court shall issue warrant for the recovery of fine. Under the said proviso option has been given to the convict either to pay fine or in default of said payment of fine to undergo imprisonment. In case, the convict opts to undergo imprisonment in default to payment of fine then the fine could not be recovered by issuance of warrants of attachment or issuance of warrants to the Collector of the District. Whereas, under Section 544-A, Cr.P.C. there is no such proviso whereby such recovery in respect of compensation when awarded could be written of or waived, even if substantive sentences are served out Provisions of Section 544-A, Cr.P.C. are mandatory. Under the said provisions even if convict undergoes imprisonment in default of payment of compensation then also the said amount of compensation would be recovered as an arrear of land revenue.
Reference may be made to Muhammad Nawaz v. The State (1984 P.Cr.L.J. 1696) wherein learned Judge in Chambers at page 1702 has observed:-- "It has been held in a large number of cases by the Supreme Court of Pakistan that the provisions of Section 544-A, Cr.P.C. are mandatory. Under this section even if the convict undergoes imprisonment in default of payment of compensation, then also the said amount could be recovered as arrears of land revenue."
(ii)Farid Bakhsh v. Saeed Ahmad and others (1992 SCM R 549) in para-9 this Court has held as under :-- "In the circumstances, we accept the appeal, set aside the amount of fine imposed by the Courts and enhance it to Rs, 10,000/- each in case of Saeed Ahmed and Ghulam Qadir Respondents Nos, 1 and 2, keeping the imprisonment in default to be same i,e, one year R.I. The entire amount of fine on recovery shall be paid as compensation to the victim. The two respondents are allowed a period of two months within which they are to pay the fine, failing which they shall be required to undergo the sentence awarded. The amount of fine being compensatory in nature shall be recoverable as arrears of land revenue under Section 544-A of the Criminal Procedure Code, if its recovery otherwise is not secured."
(iii)Umar Hayat v. The State (1990 P.Cr.L.J. 125 at 130 D.B) wherein learned Division Bench has observed as under: "A reference to Section 544(A), Cr.P.C. would reveal that as per its sub-section (3) the compensation payable 'shall be in addition to any sentence which the Court may impose for the offence of which the person directed to pay compensation has been convicted'. It is thus clear that the order of the Additional Sessions Judge relating to the payment of the compensation out of the fine, if realized, is not consistent with the provisions as embodied in subsection (3) of Section 544(A), Cr.P.C. arid as such cannot be sustained. It may be borne in mind that a bare reading of Section 544(a), Cr.P.C. would indicate that the compensation to be paid to the victim of aggression by a convict is in the form of an additional burden on him to any sentence which he is visited with and needs to be assessed and imposed independently of the sentence of fine so levied. This view of ours is further supported from the fact that as per sub-section (2) of Section 544(A), Cr.P.C., the compensation so awarded is to be realized as arrears of land revenue meaning thereby that the payment thereof is rather ensured by the Legislature."
(iv) Mst. Sarwar Jan v. Ayub and another (1995 SCM R 1679 at 1689), wherein this Court has observed asunder: "36. Facing embarrassing 'situation the learned counsel for the respondents pleaded that his clients have already undergone their sentences. They are out. It would be harsh if their sentences of imprisonment are enhanced. They are re-arrested and remanded to custody. However, there was consensus at the bar that it would in the interest of justice and interest of victim that if adequate compensation under Section 544-A, Cr.P.C. is paid to the victim. We are impressed by such consensus.
37. We are, therefore, inclined to maintain the conviction and sentences awarded to the respondents by the Judicial Magistrate but additionally award compensation under Section 544-A Cr.P.C. to the victim. The respondents are directed to pay compensation of Rs, 25,000/- each to the victim Muhammad Iqbal. They shall deposit it in the Court of Judicial Magistrate Haripur within a period of one month. If fine has already been deposited as directed by the judicial Magistrate by the respondents and paid to the victim the same shall be deducted from the compensation of Rs, 25,000/-. In failure Whereof they shall suffer R.I. for six months in jail. The Judicial Magistrate shall issue coercive process for their arrest and remand them to custody in that event. Besides the Magistrate, to recover the compensation as arrears of Land Revenue from the respondents."
7. In the circumstances, we do not find merit and substance in the contention so also in this petition, therefore leave to appeal is declined and the petition is dismissed.