' A material and important proposition with regard to interpretation of section 337-D of the P.P.C., has been raised in the instant petition. Before adverting to it, the grasp of facts is necessary for its adjudication.
2. The facts narrated by learned counsel, entered into the petition, recorded in the judgment and noted from the record, are that Mst. Khurshid Bibi, respondent No.2 was a married lady, whose husband's name was 'Abdul Karim. The aforesaid lady Mst. Khurshid Bibi lodged an F.I.R. Which was registered at No.313 on 7-9-1998, by Police Station Musafir Khana, under section 324, P.P.C., against the brother of her husband, namely Abdul Majeed son of Rasool Bakhsh (the present petitioner) with an accusation of an attempted murder upon her life by firing shots of pistol. The case was tried by learned Magistrate Section 30, Bahawalpur, who through his judgment dated 11-12-2001, passed sentence of two years' rigorous imprisonment plus a fine of Rs.500 under section 324/337-D of the P.P.C. In default of payment of fine, Abdul Majeed, accused-convict was ordered to suffer simple imprisonment for one month. Benefit of section 382-B of the Cr.P.C. Was also extended to the aforesaid accused. Correctness of the quantum of sentence, passed by the learned Magistrate was challenged by Mst. Khurshid Bibi through criminal revision, filed by her before learned Additional Sessions Judge, Bahawalpur, wherein she had prayed for the enhancement of sentence and issuance of an order to convict to pay the 'Arsh' to extent of 1/3rd of 'Diyat'. The learned Additional Sessions Judge, through his judgment, dated 20-4-2002, declined to enhance the sentence of imprisonment but the prayer to impose the payment of Arsh' amounting to Rs.65,000 was ordered, and Abdul Majeed, convict was commanded to pay 'Arsh' to Mst. Khurshid Bibi. This direction and imposition of 'Arsh' has been assailed through the instant petition by Abdul Majeed, convict.
3. Petitioner's learned counsel has raised the following objections against this imposition of "Arsh":--
(i) Learned Additional Sessions Judge had decided the case without keeping in view the facts of the case.
(ii) The motive entered in the F.I.R. Was not proved and sentence was imposed upon the accused- convict upon his own statement, which must have been accepted in toto.
(iii) The imposition of 'Arsh' was not mandatory and cannot be 'considered as an integral part of sentence. Provision of section 337-D, P.P.C. Has wrongly been interpreted by the learned Additional Sessions Judge.
(iv) When a punishment has been ordered under 'Tazir', then the provision of section 544-A of the Cr.P.C. Would become applicable in which case the Court would be at liberty to decide the quantum of compensation. In other words, determination of the extent of 1/3rd of 'Diyat' was not necessary.
(v) ' Arsh' or 'Daman' can be imposed when there was 'Tazkatushahood' in case of evidence of witnesses.
(vi) Mst. Khurshid Bibi, informant was a woman of immoral character and was found in a provocating condition, therefore, in case of 'Ghairat', lesser imposition of fine was to be ordered.
Which was rightly passed by the learned Magistrate.
4. Learned, counsel has referred to the following decisions to support his contentions:-- ' PLD 1994 Lahore 392 (Ghulam Yasin and 2 others v. The State); ' PLD 1987 Lah. 312 (Muhammad Sharif v. The State); 1983 PCr.LJ 2236 (Maqsood Ahmad v. The State); ' 1975 P.Cr.LJ 652 (Riaz Ahmed v. The State), and KLR 1992 Criminal Cases 49 (Muhammad Sadiq and others, v. The State).
5. On the other hand, learned counsel for respondent No.2, Mst. Khurshid Bibi has replied that the petitioner was convicted under section 337-D of the P.P.C., which had mandatorily provided for the Court to pass the sentence of 'Arsh'. Therefore, there was no illegality committed by the learned Additional Sessions Judge. As per learned counsel, there was no question of 'Ghairat'. It was rather the case of informant that accused wanted to establish illicit relations with her. Upon her refusal and not to yield and accede to such a request, he had become revengeful r as he had considered it to be his insult. The accused had, therefore, tried to commit the murder of her by firing four pistol shots upon her. Therefore, the judgment was correctly passed by the learned Additional Sessions Judge.
6. Before resolving the agitated questions, raised and replied by the learned counsel, it is necessary that the wordings of proiisio'n of section 337-D of the' P.P.C. Be reproduced for ready reference:-- "337-D. Punishment for jaifah.---Whoever by doing any act with the intention of causing hurt to a person or with the knowledge that he is likely to cause hurt to such person, causes jaifah to such person, shall be liable to arsh which shall be one-third of the diyat and may also be punished with imprisonment of either description for a term which may extend to ten years as tazir."
7. From the above section, a person who does any act with the intention of causing hurt to a person or with the knowledge that he is likely to cause hurt to such person, and causes jaifah to such person, for that accused two punishments have been provided by the section, which are as under:- -
(i) Imposition of 'Arsh' to the extent of 1/3rd of 'Diyat'.
(ii) Imprisonment up to 10 years.
First part of the punishment from its wordings appears to be mandatory, in which upon the proof of a case and while sentencing under that section, accused has to be imposed with liability to pay 'Arsh'. The amount of 'Arsh' has also been specified and determined as 1/3rd of Diyat' in the section itself. Liability to pay 'Arsh' and the amount are mandatory conditions, for which the Court passing the sentence, in my considered view, has not been granted any discretion to remit the imposition of "Arsh" or to direct the payment of amount less than 1/3rd of "Diyat". As to the second part of the sentence, the words used in the section, are "may also be punished with imprisonment". From these wordings, it is evident that in case of passing of sentence of punishment of imprisonment, the Court has got discretionary powers to impose imprisonment or not to pass the sentence or to award the sentence up to the extent of ten years.
8. Conviction of petitioner has not been challenged. As noted above, no discretion has been left with the Court to reduce the quantum of amount of "Arsh" or not to impose the 'Arsh', The Court has been conferred discretion in the matter of punishment of imprisonment only. Therefore, the impugned judgment passed by the learned Additional Sessions Judge is not liable to be upset or reversed.
9. As regards the decisions referred to by the learned counsel for the petitioner, I have examined all those decisions, PLD 1994 Lahore 392 (Ghulam Yasin and 2 others v. The State) has discussed the provisions of section 338-F of the P.P.C. That was a case under section 302(c)/34, P.P.C., which has got no nexus to the present case. To consider PLD 1987 Lah. 312 (Muhammad Sharif v. The State), it would be sufficient to notelhat it has dealt with grant of compensation to be paid under section 544-A, Cr.P.C. In case of sections 302 and 304 (1) of the P.P.C., 1983 PCr.LJ 2236 (Maqsood Ahmad v. The State) is also a decision taken under section 304 (1) of the P.P.C. And has taken note of the awarding of compensation to immoral woman under section 544A, of the Cr.P.C. The same is the case of 1975 PCr.LJ 652 (Riaz Ahmad v. The State. In the judgment of KLR 1992 Criminal Cases 49. (Muhammad Sadiq and others v. The State), interpretation of section 544-A, Cr.P.C. Was involved.
10. Therefore, all the above-noted rulings are not applicable to the facts of the present case, because in the instant case, provision of section 337-D, P.P.C. Has been applied which section itself contains the mandate of imposition of 'Arsh', to the extent of 1/3rd amount of Diyat', and the conferment of discretion up to the extent of imposition of the punishment. As the wordings of section itself are clear, therefore, no other interpretation of any other section can be needed or brought into service to change its meanings or the instent of letter and spirit of the section.
Therefore, I have not found any merit in this petition, hence, it is dismissed.