' IJAZ AHMAD CHAUDHRY, C.J.---This is a classical case wherein the plight of the petitioner which started in the year 1998 when her young son was lynched has not come to an end till today as she has instituted the instant petition for the recovery of Diyat amount awarded by the learned trial Court and confirmed by this Court from Muhammad Anwar (convict)/respondent No,3.
2. Succinctly, the facts of the case, as spelt out in this petition, are that case F.I.R. No,322 of 1998 dated 25-11-1998 was registered regarding the murder of the petitioner's son at Police Station Ladhewala Warraich, District Gujranwala in respect of the offences under sections 302/364, P.P.C.
On conclusion of the trial of the said case, respondent No,3, being a minor at the relevant time, was convicted under section 308, P.P.C. By the learned trial Court vide judgment dated 7-6-2000 and was sentenced to 10 years' R.I. In addition to payment of Rs,2,60,000 to the legal heirs of the deceased. Against his conviction and sentence, respondent No,3 filed Criminal Appeal No,1060 of 2000 before this Court which came up for final hearing on 1-2-2002 when the same was dismissed and conviction and sentence, awarded to respondent No,3, was maintained. However, while considering the arguments of the learned counsel for respondent No,3 that he (respondent No,3) is not in a position to pay Diyat amount in lump sum, this Court ordered payment of Diyat amount in instalments spreading over three years subject to furnishing of security equal to the amount of Diyat to the satisfaction of the Sessions Judge, Gujranwala. The then Superintendent, Borstal Jail Faisalabad (respondent No,1) released respondent No,3 on completion of his substantive sentence on 11-3-2003 without taking any security for the payment of Diyat amount by respondent No,3 as observed by this Court while dismissing the appeal filed by respondent No,3. After his release in the year 2003 neither respondent No,3 has paid a single penny towards the payment of Diyat amount nor he was re-lodged in prison to get recover the amount of Diyat. Hence this petition.
3. Learned counsel for the petitioner contends that respondent No,1 illegally released respondent No,3 without taking any security for payment of Diyat amount within three years; that respondent No,1 acted in sheer contravention of the judgment while dismissing the appeal filed by respondent No,3 wherein this Court categorically observed that' the convict be released from jail upon completion of his substantive sentence subject to taking security for payment of Diyat amount in instalments within a period of three years; that Superintendent Jail concerned having connived with respondent No, 3 due to ulterior motive released him from jail; that no step has been taken by respondent No, 1 to re-lodge respondent No, 3 in prison for realization of Diyat amount; that the amount of Diyat is a sentence and that cannot be considered as compensation and at all cost the respondent was bound to pay the same to the legal heirs of the deceased and that the petitioner is wandering here and there for recovery of Diyat amount.
4. Insofar as respondent No,3 is concerned, notice was issued to him for today. According to the report of the Bailiff on the said notice, respondent No,3 has gone to Saudi Arabia and as a result he handed over copy of the notice to his brother Muhammad Afzal. In the said situation this petition, which is already pending since the year 2005, cannot be further lingered on. Consequently respondent. No, 3 is proceeded against ex parte.
5. The stance of Superintendent Jail/respondent No,1, as gathered from the report submitted by him to this petition, is that he released respondent No,3 pursuant to the judgment passed by this Court in the case reported as Abid Hussain and another v. Chairman Pakistan Baitul Mall and others (PLD 2002 Lahore 482) and requisite letters have been sent to the concerned District Officer (Revenue) for recovery of Diyat amount from respondent No,3 as arrears of land revenue.
6. I have heard the learned counsel for the petitioner and have also gone through the documents appended with this petition. During the said course, I have noted that prime grievance of the petitioner is that respondent No,3 was released from Jail by respondent No,1 without taking any security against Diyat amount as directed by this Court while dismissing the appeal filed by respondent No,3 and despite lapse of three years, granted by this Court in view of financial condition of respondent No,3 and his father at the relevant time, has also expired but no step has been taken for re-lodging of respondent No,3 in prison for recovery of Diyat amount. In my view, to resolve the controversy, a reference to section 331, P.P.C., which deals with the subject of payment of Diyat amount; would be conducive which is reproduced hereinbelow:- "331. Payment of diyat. ---(1) The diyat may be made payable in lump sum or in instalments spread over a period of (five) years from the date of the .Final judgment.
(2) Where a convict fails to pay diyat or any part thereof within the period specified in subsection (1), the convict may be kept in jail and dealt with in the same manner as if sentenced to simple imprisonment until the diyat is paid full or may be released on bail if he furnishes security (or surety) equivalent to the amount of diyat to the satisfaction of the Court (or may be released on parole as may be prescribed in the rules).
(3) Where a convict dies before the payment of diyat or any part thereof it shall be recovered from his estate".
According to the aforequoted provision, amount of Diyat can be paid by a convict in lump sum or instalment. In case if an accused is directed to pay amount of Diyat in instalment within a specified period and if he fails to pay the same he can be kept in jail and dealt with in the same manner as if was sentenced to simple imprisonment until the Diyat is paid full or convict provides security equal to the amount of Diyat. Even after the death of the convict, he cannot be absolved of his obligation of payment of Diyat rather the same can be recovered from his estate.
7. Insofar as the stance of respondent No,1 is concerned, I am of the view that there is no denying the fact that. This Court while dealing with the case of Abid Hussain supra directed all the Superintendents of Jails throughout the Province to release the convicts who were detained in Jail for six months after serving out of their substantive sentence on account of their failure to pay the Diyat amount but it is also settled principle of jurisprudence till the amendment of the relevant provision pursuant to the order passed by any Court of Law while declaring the same unlawful or repugnant to any provisions of law for the time being in force, the existing provisions of law would hold the field.
8. An other important aspect of the matter that while dismissing the appeal filed by respondent No,3, this Court in view of the provisions of section 331 quoted above and in view of the request of the convict that neither he nor his father is in a position to pay amount, of Diyat in lump sum observed inter alia as follows:-- "The appellant, according to learned counsel, is not in a position to pay Diyat. Therefore, it is prayed that appropriate order as envisaged under section 331, P.P.C. May be passed in this Appeal.
The prayer is reasonable and has not even been opposed by the learned counsel for the State.
The appellant after serving out the entire sentence of imprisonment would be liable to pay the amount of Diyat i,e, Rs,2,60,000. If the appellant is not in a position to pay the same, his father will have to make the payment because the appellant is minor. In case appellant or his father does not possess means to pay the Diyat amount, the same may be paid in instalments stretching on the period of three years. The appellant, therefore, may furnish security equal to the amount of Diyat to the satisfaction of learned Sessions Judge, Gujranwala who may divide the amount of Diyat in equal instalments to be paid within a period of three years. The appellant may be released from Jail on his serving out the entire sentence of imprisonment i,e, ten years and on furnishing the security equal to amount of Diyat i,e, Rs,2,60,000"..
As per judgment passed by this Court, it was incumbent upon respondent No,1 to get security equal to the Diyat amount from respondent No,3 prior to his release from Jail but he .Did not pay any heed to the said observation of this Court rather he took the shelter of a judgment passed by this Court in the case of Abid Hussain supra which till today has not matured into reality as the same subject is pending adjudication before the Hon'ble Supreme Court. It is astonishing to note that respondent No, 1 instead of abiding by the direction D of this Court in the case of respondent No,3 illegally released respondent No,3 without taking security. For payment of Diyat amount within period of three years.
9. The act of responded No,1 without taking any security for payment of amount of Diyat from respondent No,3 prior to his release from jail is also not tenable for the reason that in such situation it would not be possible to recover the requisite amount of Diyat. As respondent No,3 has gone abroad and there is no mechanism to effect recovery of Diyat amount from, every convict would try to avoid payment of Diyat amount. While dealing with such proposition, the Hon'ble Supreme Court in the case reported as Government of Punjab v. Abid Hussain and others (PLD 2007 SC 315) held inter alia as follows:-- "For the reasons to be recorded later, the appeals are disposed of in the following terms:
(i) Sections 331, 337-X and 337-Y, P. P.C. Are intra vires of the Constitution of the Islamic Republic of Pakistan, 1973.
(ii) the Federal Government is hereby directed to frame Rules under section 338-G, P. P. C. To give effect to these provisions of law, providing mechanism for creating the funds for the purpose of making payment of Diyat Arsh and Daman of the convicts, who on account of their weak financial position, are languishing in Jails for want of making the said payment, within a period of three months.
(iii) While framing the rules the possibility may also be examined as to whether out of the funds created, soft loans can be extended to the convicts, enabling them to satisfy the claim of the legal heirs of the deceased or victim. Simultaneously it would also be examined whether it would be possible for the Government to provide jobs to the convicts, other than the Government Departments through social organization or philanthropist, enabling the convicts to disburse the amount of loan, if extended to them.
(iv) A provision be also made available in the rules that in appropriate cases, the trial Court may examine the question of release of such prisoners on parole, who, after having served out the substantive sentence of imprisonment, if any, are confined in Jails on account of non-payment of Diyat, Arsh and Daman.
(v) As an interim arrangement, the convicts, who have already undergone substantive imprisonment but are in Jails all over the country due to non-payment of Diyat or Arsh, shall be released forthwith under sections 331(1) and 337-X, P.P.C., subject to furnishing security to the satisfaction of the District and Sessions Judge concerned for a period of three years, enabling them to make the payment of Diyat and Arsh at their own resources in lump sum or in equal instalments, or taking loans from the funds, created by the Government. Similarly, the convicts who are in jails only on account of non-payment of Diyat or Arsh, as no substantive imprisonment was awarded to them; in accordance With law, shall also be released forthwith in the same manner, as noted hereinabove.
' If the amount of Diyat and Arsh is not paid by a convict within the stipulated period, he shall be dealt with under sections 331(2) and 337-X(2), P.P.C.,
(vi) The Federal Government shall also evolve a mechanism to ensure that the rights of the victims i,e, heirs of deceased and the injured for the purpose of Diyat, Arsh and Daman are equally protected by making specific provision in the Rules.
(vii) The Federal Government shall also examine whether the period of three years under sections 331 and 337-X, P.P. C. Can "be enlarged up to seven years. Similarly, in section 337-Y, P.P. C., relating to payment of Daman, same provision will be incorporated as previously no such period was provided perhaps on account of some omission.
(viii) The above arrangements shall continue till the framing of the Rules by the Federal Government. Thereafter the cases of such convicts shall be dealt with accordingly, under the said Rules."
' According to the aforementioned judgment of the Hon'ble Supreme Court, if the amount of Diyat is not paid by a convict within the stipulated period, he shall be dealt with under sections 331(2) and 337-X(2), P.P.C. According to the procedure prescribed under the said sections, if a convict fails to pay the Diyat amount within the stipulated period, he be kept in civil prison until the Diyat is paid in full or may be released if he furnishes security or surety equivalent to the amount of Diyat to the satisfaction of the Court. In the instant case neither respondent No,1 took any security as per the judgment of this Court wherein period of three years was granted to respondent No,3 to pay Diyat amount in instalments nor he has made any effort to re-lodge him in imprisonment for recovery of Diyat amount rather he has taken the stance that he has already written several letters to the District Officer (Revenue) for recovery of Diyat amount from respondent No,3 as arrears of land revenue in view of the judgment passed by this Court in the case of Abid Hussain supra. The said approach of respondent No,1 cannot be approved as he was bound by the judgment passed by this Court while dismissing the appeal filed by respondent No,3.
10. As a necessary corollary to the discussion made in the foregoing paragraphs, I have no doubt in my mind to hold that the Superintendent Jail illegally released respondent No,3 from Jail without taking security from him equal to the amount of Diyat. Consequently, this petition is accepted and respondent No,1 is directed to take all possible measures, including detaining of respondent No,3 in civil prison for recovery of Diyat amount from respondent No,3 and then its payment to the legal heirs of the deceased.
11. Before parting with the order, it is observed that conduct of the then Superintendent Jail, who released respondent No,3 in sheer violation of the observation of this Court on the appeal filed by him against the conviction and sentence, invites serious objections. Consequently, Inspector- General (Prisons) Punjab, Lahore is directed to hold discrete inquiry into the matter and if the Superintendent concerned is found at fault he be taken to task in accordance with law under intimation to this court through the Deputy Registrar (Judicial).