According to the appellant, his uncle Abdul Latif alongwith six other co-accused was convicted and sentenced on 15.6.1993 by the learned District and Sessions Judge, Faisalabad. The said Abdul Latif was convicted and sentenced under Sections 302, 149, P.P.C. On three counts to undergo imprisonment for life. He was also sentenced to fine Rs. 50,000/- on each count. Similarly, he was directed to pay compensation Rs. 1,00,000/- on each count. In default of payment of fine, he would undergo two years' R.I. On each count. In default of payment of compensation, he would undergo six months' R.I. On each count.
2. The said convict was also sentenced under Section 307 read with Section 149, P.P.C. To undergo 10 years'-R.I. On six counts and to pay Rs. 20,000/- on each count as fine. Compensation was also awarded of Rs. 30,000/- to each of the six injured PWs. In default of payment of compensation to further suffer six months' R.I. On six counts. Total sentence in default of payment of fine becomes 9 years, 6 years under Section 302, P.P.C. And 3 years under Section 307, P.P.C. Total sentence or imprisonment in default of compensation becomes 414 years, 18 months under Section 302, P.P.C.
And 36 months under Section 307, P.P.C. Grand total becomes 13 years and 6 months.
3. Crl. Appeals Nos. 437, 441 and 530 of 1993 were preferred from the judgment of the learned Trial Court, which were dismissed alongwith Crl. Revision No. 414 of 1993. The Murder Reference was answered in affirmative.
4. Subsequently, Crl. Petitions Nos. 81 and 170:L of 1998 and Jail Petitions Nos. 104 and 175 of 1998 were filed in the Honourable Supreme Court of Pakistan. The leave was granted. The relevant portion of the ing order of the Honourable Supreme Court is reproduced as under:- "However, considering the case in all aspects, we are of the view that no body can safely be burdened with the liability to death and, therefore, quantum of sentence awarded in this case requires reexamination. Accordingly, we grant leave to appeal to consider the quantum of sentence in these cases. Leave is, therefore, granted in Crl. Petition No. 170-L of 1998, Jail Petitions Nos. 175 of 1998 and 104 of 1998, Crl. Petition No. 81-L of 1998 assailing acquittal of Altaf Hussain and Muhammad Yaqoob is dismissed."
According to the learned counsel for the appellant, appeal (Crl. Appeal No. 603 of 2000) arising out of Crl. Petition No. 170-L of 1998 has not, so far been disposed of and as such is still pending adjudication in the apex Court. Resultantly, appellant's uncle Abdul Latif and many other convict persons in the case, in the meanwhile, have already undergone the substantive sentences awarded to them but are being confined in Jail to complete imprisonment in lieu of payment of the fine and compensation.
5. According to the learned counsel, Writ Petition No. 989/2005 titled "Altaf Hussain v.
Superintendent, Central Jail, Faisalabad and others" was filed on behalf of one of the convicts namely Naveed Iqbal. The writ petition was disposed of on 2.2.2005. The relevant portion of the judgment rendered by the learned Single Bench is reproduced as under:- "The contentions of the petitioner is that all the sentences awarded to the petitioner in lieu of nonpayment of the fine and compensation would run- concurrently and in this regard the petitioner relies upon a advice No. SO(MP), 14-12/98, Government of Punjab, Home Department dated 6.2.1999, to the Superintendent Central Jail, Faisalabad, which stipulated, that the sentences in lieu of non-payment of fine would run concurrently in respect of lifer convicts. Therefore, in view of the said policy advice of the Government of the Punjab, Home Department, the sentences awarded to the petitioner in lieu of nonpayment of fine and compensation would also run concurrently.
The Superintendent Central Jail, Faisalabad, will therefore', work out the sentence to the undergone by the petitioner in lieu of non-payment of fine and compensation in the light of the said advice of the Home Department and the same as such would run concurrently and on completion of 2 years, the petitioner would be realized from Jail."
6. Following the above judgment, another Writ Petition No. 10735/2005, titled "Nazir Ahmad v.
Superintendent of Central Jail, Faisalabad and another1' was filed on behalf of convict Muhammad Ashraf. The said writ petition was disposed of on 21.10.2005 and the same relief was given by this Court ruling as under:- "The petitioner's case will be treated at par with the case of his convict co-accused Naveed Iqbal and the petitioner will be entitled to the same remissions after conviction, which had been made available to the convict co-accused. The petitioner will undergo 2 years' sentence in lieu of non- payment of fine and compensation. The petition stands disposed of."
7. The present appellant also filed a Writ Petition No. 16188/2005, "Shaheen Tahir v. Superintendent Central Jail, Faisalabad" but the same was deposed of by the order of the learned Single Bench of this Court on 4.9.2007 oh the ground that all these points can be raised before the Honourable Supreme Court of Pakistan, where Crl. Appeal No. 603 of 2000 (as mentioned supra) is pending.
8. The Jail authorities took a plea before the learned Single Bench that in view of the provisions of Section 64; P.P.C. And also referring to 1991 P.Cr.L.J. 257 (Karachi) sentences in lieu of fine are to run consecutively and not concurrently. According to the Jail Authorities the learned Trial Court had ordered that substantive sentences would run concurrently and no such order was passed regarding sentences in case of default of payment of fine and compensation.
9. The learned counsel for the appellant has prayed that order of the learned Single Bench dated 4.9.2007 may be set aside and the direction claimed in the said writ petition may be issued. The prayer in the said writ petition is as under:- "It is, therefore, humbly prayed that the detention of Muhammad Latif (Abdul Latif) petitioner's uncle in Central Jail, Faisalabad by respondent No. 1 may very graciously be declared to be without lawful - authority and may be ordered to be set at liberty."
10. The main emphasis of the learned counsel for ~~ the appellant is that since substantive sentences of life imprisonment (25 years' R.j.) were ordered to run concurrently, the sentences awarded in lieu of fine and compensation should also be treated as concurrent instead of consecutive. In this context the learned counsel heavily relies upon "Mian Khan v. Government of the Punjab and - others" (2005 P.Cr.L.J. 627). He also pointed out that the learned Single Bench whose order has been called in question in this appeal was one of the members of the learned Division Bench who delivered .The above-said judgment. The relevant portion of the above- referred D.B. Judgment is as under:- "The question, which arises now, is whether the sentence of imprisonment, awarded in lieu of default in payment of fine on each count after petitioner had served out his substantial sentence of life imprisonment has to run concurrently or concurrently or consecutively. If worked out on consecutive basis the petitioner's sentence in lieu of default in payment ' of fine on all counts come1 to 28 years and if the petitioner is made to suffer the said 28 years and if petition is. Made to suffer the said 28 years of sentence then it will be violative of Section 65 of the P.P.C., which stipulates that the term of imprisonment in default in the payment of fine shall not exceed 1/4th of the term of imprisonment, 1/4th of the term of imprisonment, which is minimum fixed for the offences." (underlining is by me).
According to the learned counsel for the appellant, in this case the appellant was awarded concurrent life imprisonments i.e. Maximum sentence of 25 years' R.I. And- in lieu of default in payment of fine and compensation together, cannot exceed, 1/4 of 25 years.
11. At the same time the learned counsel for the appellant also contends that different terms of imprisonment in lieu of default in payment of fine and compensation treated and directed to run concurrently with substantive sentences. In our view the above contention are untenable for different reasons:-
(i) It may be pointed out at the very of the learned D.B. Of this Court i.e. 2005 P.Cr.L.J. 627, does not deal on the point of sentence in lieu of default in payment of compensation, in lieu of non-payment of fine, therefore, we can safely say the facts and circumstances in the above case and in the present appeal are not entirely similar. Only on this ground we can safely hold that 2005 P.Cr.L.J.
627 is not attracted in the facts and circumstances of the instant appeal.
(ii) We also hold that Section 65, P.P.C. Does not provide discretionary power to the Court to pass an order of running sentences concurrently in default of payment of fine. Section 65, P.P.C. Only enjoins the Court that it will not pass the term of sentence in default of payment of a fine more than 1/4 of the term of imprisonment (underlining is by me) which is the maximum fixed for the offence. Therefore, the question of a sentence whether to run consecutively or concurrently is not relevant as far as application of Section 65, P.P.C. Is concerned. This question is only relevant to the application of Section 35, Cr-P.C. No Court has power under Section 65, P.P.C. To order that sentence in lieu of default of payment of fine shall run. Concurrently with substantive sentence or sentences. Moreover, we respectfully disagree with 2005 P.Cr.L.J. 627 on the point that 1/4th shall be of the term of imprisonment, which is the maximum fixed for "sentences", Section 65, P.P.C. Refers "sentence" and not "sentences".
12. We also hold, as provided under Section 68, P.P.C. That imprisonment in lieu of non-payment of fine is in excess of any other imprisonment i.e. Substantive sentence. Thus this sentence of imprisonment in lieu of fine runs in addition to the substantive sentence after substantive sentences is completed, thus for this reason also sentence in lieu of non-payment of fine cannot run concurrently.
13. At this stage a brief reference may be made to Sections 66, 67, 68 and 69, P.P.C. According to Section 66 the imprisonment, which the Court imposes in default of payment of fine may be of any description i.e. Rigorous or simple. Section 67, P.P.C. Deals with the imprisonment for non-payment of fine when offence is punishable with fine only. In the above situation the imprisonment shall be simple and terms of sentence shall not exceeding two months when the amount of fine shall not exceed fifty rupees, and for any terms not exceeding four months when the amount shall not exceed one hundred and for any term not exceeding six months in any other case. One may take a pause to realize that no such scale of maximum or minimum is provided under Section 65, P.P.C.
14. According to Section 68, P.P.C. The imprisonment, which is imposed in default of payment of a fine shall terminate wherever that fire is either paid or levied by process of law. Section 69, P.P.C. If, before the expiration of the term of imprisonment fixed in default of payment, such a proportion of the fine be paid or levied that the term of imprisonment suffered in default of payment is not less than proportional to the part of the fine still, unpaid, the imprisonment shall terminate. At this stage, it is very important to clarify, that sentence of fine is different and distinct from the punishment of imprisonment for life or liability to pay compensation. Section-53, P.P.C. Enumerates different punishments, which Court may inflict, which reads as under:- The, punishments to which offenders are liable under the provisions of this Code are:- Firstly, Qisas; Secondly Diyat; Thirdly Arsh; Fourthly Daman; Fifthly Tazir; Sixthly Death; Seventhly Imprisonment for life; Eighthly Imprisonment which is of two descriptions namely: (i) Rigorous i.e., with hard labour; (ii) Simple.
Ninthly Forfeiture of property.
Tenthly Fine.
We are mainly dealing in this appeal with the punishment of fine, which is separately provided in Section 53, P'P.C. And may be read with Section 63 to 70, P.P.C. In the facts of the present case.
Mixing up these above-mentioned punishments with each other creates the confusion. The emphasis of the learned ^counsel for the appellant that since sentence of imprisonment for the life (Seventhly) was directed by the learned Trial Court to run concurrently, therefore, under Section 65, P.P.C. Sentence in lieu of nonpayment of fine and compensation should be counted as 1/4th of life imprisonment i.e. 25 years. This view is not correct as we observed earlier sentence of fine is distinct, separate and in addition to the punishment of imprisonment for life. The punishment of fine or in lieu of non-payment of fine is not part of punishment for imprisonment for life and cannot run concurrently with it. In addition to above, 1/4th shall be counted of maximum sentence of each offence.
15. At this' stage, it may be pointed that the representative of the Home Department has informed this Court that the advice No. SO(MP)14-12/98, dated 6.2.1999 was withdrawn. Another mistake which the learned .Counsel for the appellant has not realized is that he is also mixing up question of liability of compensation or sentence in lieu of non-payment of compensation with punishment of fine. Punishment of fine is awarded under Pakistan Penal Code, whereas compensation is awarded under Section 544-A, Cr.P.C. And this section was added in the Criminal Procedure Code, by the Law Reforms Ordinance, 1972. We would like to refer sub-sections (2) and (3) of Section 544-A,.
Cr.P.C. As under:- (1)
(2) The compensation under sub-section (1) shall be recoverable as arrears of land revenue and the Court may further order that, in default of payment or of 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.
The above-mentioned sub-section (3) of Section 544-A, Cr.P.C. Clearly mentions that compensation shall be in addition to any sentence which the Court may impose for the offence of which thd person directed to pay compensation has been convicted. Thus, payment of compensation shall be treated separately from the punishment of imprisonment for life for punishment of fine. The payment of compensation is a third separate liability on the appellant, it can neither be treated as part of punishment of fine nor with punishment of life imprisonment.
Thus, sentence in lieu Of non-payment of compensation under Section 544-A, Cr.P.C. Is separate and in addition to the punishments of 25 years' R.I. And punishment in lieu of non-payment of fine.
As noted above, this point was not discussed in the judgment relied upon by the learned counsel for the appellant i.e. 2005 P.Cr.L.J. 627.
16. We would like to discuss a few judgments from our jurisdiction as- well as Indian jurisdiction, which are relevant to the facts and circumstances of the instant appeal. A learned Division Bench of the Baluchistan High Court was confronted with a similar case. The petitioner was awarded different sentences by a Special Judge (Offences in Respect of Banks) Baluchistan, his appeal was dismissed by the Baluchistan High Court. Thereafter, a petition under Section 561-A, Cr.P.C. Was filed and heard by two learned Judges. It was contended by the learned counsel for the petitioner before the Baluchistan High Court that at the time of pronouncement of judgment the learned Trial Court directed imprisonments awarded in various sections of the statute to run concurrently which also, in view Section 71, P.P.C., include the imprisonments in default of payment of fine and he (convict) had to undergo only two years' R.I. In default and not six years. The learned High Court observed as under:- "It may be observed that Section 64, P.P.C., which has also been made applicable to the offences under local and special law by virtue of Section 25 of General Clauses Act, 1897, provides that in default of payment of fine the offender shall suffer imprisonment for a certain term which imprisonment shall be in excess of any other imprisonment to which , an accused may have been sentenced, as such; a sentence of imprisonment within the meaning of Section 35, Criminal Procedure Code or 397, Cr.P.C. And a Court has no power to direct sentences of imprisonment in ^default of payment of fine to run concurrently. Abdul Majeed v. The State and another" (2005 YLR 1551)."
To reach the above conclusion, the learned Baluchistan High Court also referred to some judgments from the A.I.R. For example, AIR 1940 Lahore 388, AIR 1941 Lahore 209, and AIR 1944 Madras 448. The learned Baluchistan High Court also referred to a judgment from Sindh High Court in the following wards:- "The Honorables Sindh High Court after considering the application and object of Section 64, P.P.C.
Observed in the judgment reported in 1991 P-.Cr.L.J. 255 as under:- "The learned Sessions Judge should have also known that in view of Section 64, P.P.C. The sentence of imprisonment in default of payment of fine cannot be made to run concurrently. The manner in which the case was dealt with by him has left a bad taste in the mouth. (2005 YLR 1551)."
17. On Section 65, P.P.C. Learned Dacca High Court held as under- As the provisions of these two sections stand, a Judge or a Magistrate, however wide his. Power otherwise may be, cannot award sentence of imprisonment for more than one-fourth of the maximum (three months) prescribed for. An offence under Section 447 of the Pakistan Penal Code but here in the present case, as already pointed out, the Magistrate awarded sentence of imprisonment for one month in default of payment of fine. Evidently, the sentence of imprisonment exceeds the limit prescribed for the offence. Abdul Hakim Bhuiya v. Golabdi and others (PLD 1956 Dacca 108).
18. A Division Bench of the learned Singh High Court while discussing efficacy of Sections 64, 65/and 69, P.P.C. Held as under:- "But the sentence of two months' R.I. In default uf flue should run after the sentence of imprisonment. The Sessions Judge was in error in ordering the sentence of two months' R.I. In lieu of fine .To run concurrently with the sentence of imprisonment. Section 64 of the P.P. Code permits two substantive sentences to run concurrently,, but the sentence of imprisonment in lieu of fine has to be served out separately. That sentence cannot run concurrently with any other sentence of imprisonment. This is clear 'from the language of Section 64, P.P.C. There are also decided cases in support of that view- They are Emperor v. Ibrahim (AIR 1931 Rang. 51 )t and Emperor v. Subaro Sesharao (AIR 1926 Bom. 6). If that had been permissible the penalty attached to non-payment could be rendered sterile. In that event the convicted accused would in effect suffer no imprisonment in lieu of fine and no punishment for his failure to pay the money due from him. The intention of Section 64, P.P.C. Is that punishment in lieu pf fine must be borne so that the convict may be under compulsion to by the fine and there may be some deterrent to default. Apart from the above, if a sentence in lieu of fine is allowed to run alongwith the sentence on another charge, adjustment of imprisonment on part payment of fine-contemplated by Section 69 of the Pakistan Penal Code would become impossible. For these reasons, sentence in lieu of fine should be served separately." Qutab v. The State (PLD 1958 (W.P.) Karachi 634).
Similar view was held by the learned Karachi High Court in another judgment:- "It is an error to make the sentence of imprisonment in lieu of fine to run concurrently with the main sentence of imprisonment imposed for the offence. Section 64 of the Penal Code requires that sentence of imprisonment in lieu of fine should run in addition to the sentence of imprisonment imposed for the offence." Ali Abbas v. The State (PLD 1959 (W.P.) Karachi 56)."
According to the learned Lahore High Court:-- "Section 65 of the Penal Code, 1860 lays down that the term for which the Court directs the offender to be imprisoned in default of payment of fine shall not exceed 1 /4th of the .Terms of imprisonment which is the maximum fixed for the offence." Shafiq Ahmad v. The State (PLD 1959 (W.P.) Lahore 851)."
In another celebrated judgment, the learned Lahore High Court inflicted two separate sentences of fine only and expressly directed that in lieu of default, sentences of imprisonment shall run consecutively. According to the judgment:- "Weighing all the relevant facts, I have come to the conclusion that the sentence should not be one of imprisonment but one of heavy fine. Consequently, I sentence the accused to a fine of Rs.
12,500/- for the offence under Section 497 of the Pakistan Penal Code, default of payment of which shall entail rigorous imprisonment for one year, and to a fine of Rs.7,500/- for the offence under Section 498 of the Pakistan Penal Code, in default of payment of which he shall suffer rigorous imprisonment for six months. I need hardly to say that imprisonment for default of payment of fine for one offence shall run consecutively with the imprisonment that has to be suffered for default in payment of the fine imposed for the other." Syed Ali Nawaz Shah Gardezi v. It. Col. Muhammad Yusuf Khan, Commissioner Quetta Division (PLD 1962 (W.P.) Lahore 558)."
19. Provisions in the Indian Penal Code are similar With some variations. However Sections 64 and 65 in Indian Penal Code are exactly similar like Sections 64 and 65 in the Pakistan Penal Code. To save the time and space I would avoid reproducing. The same is true about some other sections on the subject of sentence of fine, therefore, some brief references of latest judgments from the Indian jurisdiction would not be considered out of place. The sentence of fine carries with it the consequences of imprisonment in case the accused fails to pay the fine. (AIR 1972 S.C. 1295). In default of payment of fine the sentence of imprisonment should run consecutively with substantive sentence. (AIR 1958 Pat. 35). According to another judgment of Indian jurisdiction, imprisonment in default of payment of fine is a penalty which is incurred for nonpayment of fine. P. Bala Raman v.
The State (1991 Cr.L.J. 166 (M.P.).
20. According to the above discussion of different case-law from both the jurisdiction, we are clear in our mind that sentence of imprisonment in lieu of default of payment of fine is a separate and distinct punishment. In other words, it is in addition to the main sentence or substantive sentence.
Section 65, P.P.C. Does not provide minimum but contemplates maximum i.e. Not more than 1/4th of a sentence which is actually passed by the Trial Court. Section 35, Cr.P.C. Empowers Trial Court to allow substantive sentences to run concurrently but this power is not conferred upon him in case of sentence or sentences provided in lieu of default of payment of fine. As a matter of fact, no Court has power to direct that sentence shall run concurrently in default of payment of fine with substantive sentences or even when sentences of fine are awarded for more than one offences. It is further clarified that only Section 65, P.P.C. Governs the question of sentence in lieu of default in payment of fine and Section 35, Cr.P.C. Only deals with the substantive punishments. In addition to the above, it is also made clear that Section 65, P.P.C. Refers to 1/4th of a "sentence" and not of "sentences".
21. It is reiterated that Section 544-A, Cr.P.C. Is a new addition to the law and it clearly lays down that compensation shall be in addition to any sentence which the Court may impose for the offences of which the person directed to pay compensation has been convicted. This is a separate liability and has to be dealt separately. Therefore, the sentence which is inflicted in lieu of non- payment of compensation shall also not run concurrently, it shall be counted separately as well as run separately consecutively.
22. The upshot of the above is that the total sentence which is counted with reference to punishment in lieu of default in payment of fine under Sections 3Q2s and 307, P.P.C. Is 9 years, 2 years' R. Leach on three count and six months' R.I. On six counts respectively. And sentence in lieu of default of payment of compensation is~41/z-years, 18 months under Section 302, P.P.C., six months'
R.I. On three counts; under Section 307, P.P.C. 36 months; six months' R.I. Each on six counts. The grand total is 13 years and six' months. Sentence, as pointed out above, in default of payment of fine sentence in default of payment of compensation, if paid, shall run consecutively, ope after another. It hardly needs to explain that these two sentences have no nexus with substantive sentences which were ordered by the learned Trial Court to run concurrently* under Section 35, Cr.P.C.
23. The feelings of the learned counsel for the appellant are. Appreciated that in the facts and circumstances of the present case this period seems excessive particularly, when the appellant has already completed his substantive punishment of 25 years but the difficulty, which the learned counsel must appreciate, is that these sentences were awarded by a competent Court which can only be reversed by ah Appellant Court or a Court of competent jurisdiction Under Section 561-A, Cr.P.C.. But not under the Constitutional jurisdiction. In the instant I.C.A. We can only interpret the relevant provisions of law and ensure that respondents act as required under the law. The learned counsel for the appellant still has remedy before the Honourable Supreme Court of Pakistan as Crl.
Appeal No. 603 of 2000 arising out of Crl. Petition No. 170-L of 1998 is pending before the Honurable Supreme Court of Pakistan.
We may, at this juncture of time hint at the provisions of Section 63 of P.P.C. Which reads as under:- "Where no sum is expressed to which a fine may extend, the amount of fine to which the offender is liable is unlimited, but shall not be excessive."
Similarly, Section 544-A, Cr.P.C. Requires from a Court that the compensation shall be determined having regard to the circumstances of the case. The learned counsel for the appellant may take advantage of these provisions from the appropriate forum i.e. From Honorables Supreme Court by filing a C.M. The ing order itself says that leave was granted to consider quantum of sentences.
24. With the above observations, following our discussion and reasons in the proceeding paras, this appeal is dismissed. Order of the learned Single Bench, dated 4.9.2007, in Writ Petition No. 16188/2005, is upheld.