' SYED MUHAMMAD FAROOQ SHAH, J.---Through this application, it has been prayed on behalf of the appellant/accused that the sentence which he has already undergone from the date of his arrest (26-2-2007) till date may be treated as the sentence he has already suffered with benefit of section 382-B, Cr.P.C. As far as payment of "Daman" is concerned it is submitted that it may he reduced to a nominal extent and thereafter such may be calculated/adjusted as being suffered by the appellant against non-payment thereof and/or it be adjusted towards the sentence the appellant has already suffered from the date of his arrest till date and the commutation he has earned under the present rules and Constitution of Islamic Republic of Pakistan for which purpose jail roll from the authorities/jail concerned may be called and this appeal may be disposed of.
2. Succinct facts of the captioned appeal filed by the appellant are that the parents, of accused Waqas came to the parents of victim for her hand for accused but parents of victim refused. The appellant/accused being annoyed thrown acid on her face and body. Her mother took the injured daughter to the hospital where she was admitted and treated and later on the accused was arrested. During trial the accused has denied the allegations levelled in the charge framed by the trial Court and on conclusion of evidence, by judgment pronounced on 31-7-2012, learned VIIIth Assistant Sessions Judge, Karachi East in Sessions Case No,189 of 2007 convicted the appellant Waqas Ali under section 324, P.P.C. And sentenced him to suffer R.I. For seven years and to pay fine of Rs.50,000 and in case of default of payment of fine to undergo six months' S.I. And also convicted him under section 337-L(1), P.P.C. And sentenced him to suffer seven years' R.I. And to pay "Daman" of Rs.5,00,000 to the complainant or in default of payment thereof to remain in jail till realization of the same. All the above sentences were directed to run concurrently. However, benefit of section 382-B, Cr.P.C. Was not extended to the appellant/accused.
3. By an order dated 9-7-2012, the jail authorities were directed to submit fresh jail roll calculating the remission of appellant/accused from the date of his arrest by applying the benefit of section 382-B, Cr.P.C. Superintendent Central Prison, Karachi vide his Report No,JB/13729/30 dated 14-7- 2012 has, submitted that as per fresh jail roll in respect of above named convicted prisoner .
(Appellant), after calculating the remissions from the date of his arrest with the benefit of section 382-B., Cr.P.C., the sentence has been expired but he is detained for want of "Daman" amount Rs.5,00,000. Perusal of the jail roll depicts that the appellant/accused has served the sentence of 9 years, 3 months and 8 days (including remission) with benefit of section 382-B, Cr.P.C.
4. Mr. Salman Hamid Advocate represented the appellant/acdused and at the very outset contended that the appellant is in jail continuously after his arrest on 26-2-2007 and that he was convicted on 31-7-2012 in terms of the judgment without benefit of section 382-B, Cr.P.C. Which, it is submitted, is not only a harsh sentence but against the evidence that was brought on record and that section 337-L(1), P.P.C. Was not included in the F.I.R. ,Moreover, the delay in conclusion of trial of sessions case was not attributed with the appellant and it was delayed for reasons not in his control and power.
5. On the other hand, Ms. Rahat Ahsan, D.P.-G. Vehemently oppOses the application on the ground that the appellant has been convicted in a heinous offence, therefore, he is not entitled for any leniency and the benefit of section 382-B, Cr.P.C. Has rightly been declined by the trial Court. In support of her contention, the learned D.P.-G. Placed reliance on the case of ABID HUSSAIN and ANOTHER v. CHAIRMAN, -PAKISTAN BAIT-UL-MAAL, reported as PLD 2002 Lahore 482. Astonishingly, Mr. Salman Hamid, Advocate for the appellant has also placed reliance on the same aforementioned ruling.
6. In this reported judgment the principles pertaining to the mode of payment and recovery of Diyat, Arsh and Daman and treatment of convicts for the same have been formulated, particularly in the light of Quranic Verses. While discussing applicability of Articles 4 and 9 of the Constitution of Pakistan 1973, it has been observed that no person shall be deprived of his life or liberty save in accordance with law. A law governing crime and punishment and dealing with lives and liberty of the citizen cannot be allowed to hold the field if such law is not only unreasonable, obscure and, a times, absorts but also capable of working as an engine of unjustifiable oppression. In the cited case the Court thus, been found the provision of section 331, 337-X and 337-Y, P.P.C. To be violative of the fundamental rights guaranteed by Articles 9 and 14 of the Constitution regarding life and liberty of citizen and dignity of man and liberty of citizens under the provision of Article 4 of the Constitution of Pakistan. The provision of sections 331, 337-X and 337-Y, P.P.C. Insofar as they prescribed the mode of payment and recovery of Diyat Arsh and daman and treatment of the convicts for the same or, therefore, declared to be void on account of their inconsistency with the fundamental and constitutional rights. Para 31 of the judgment, delivered by the Hon'ble Lahore High Court, reads as under:-- "31. As a consequence of the declaration made above the general law relating to Diyat, Arsh and Daman contained in the ,Pakistan Penal Code shall remain intact but the provisions of sections 331, 337-X and 337-V, P.P. C. Insofar as they prescribe the mode of payment and recovery of Diyat, Arsh and Daman and treatment of the convicts for the same shall forthwith cease to exiSt. In the case of Muhammad Kamal v. The State (1998 PCr.LJ 1781) the Hon'ble Peshawar High Court had made a recommendation to the Federal Ministry of Law to remove the anomalies and confusions created by the said provisions and on 27-11-2000, while deciding a Constitutional ,Petition of one Muhammad Amjid under Article 184(3) of the Constitution, the Hon'ble Supreme Court of Pakistan had suggested to the Federal Government to refer the matter of these provisions to the Council of Islamic Ideology to find a solution to the problems created by these provisions. Unfortunately despite such highest judicial recognition of the obscurities in the said provision of the Pakistan Penal Code the recommendations made by the Hon 'ble Peshawar High Court in the year 1998 and by the Hon'ble Supreme Court of Pakistan in the year 2000 have not been attended to so far either by the Federal Government or by the Council of Islamic Ideology and nothing has been done to date to solve the problems created by the said provisions. The Federal Government has even failed to frame the Rules in this regard- contemplated by section 338-G, P. P. C. So as to inject some rationality into the relevant provisions. In this backdrop of apathy on the part of the concerned quarters this Court cannot leave the affected citizens in the lurch and allow them to keep on suffering on the basis of laws which are themselves defective. I am conscious that the declaration made by this Court in the preceding paragraph may create a vacuum in the Pakistan Penal Code regarding the mode of payment and recovery of Diyat, Arsh and Daman and treatment of the convicts for the same but such a vacuum is quite capable of being adequately filled by the provision of section 544-A, Cr. P. C. Which not only deals with similar matters but the same are quite just, fair and reasonable besides being in accord with the remaining body of laws dealing with similar matters, In the case of Maqsood v. All Muhammad and another (1971 SCMR 657) the Hon'ble Supreme Court of Pakistan had held that if a statute contains two provisions dealing with somewhat similar situations then the Court can usefully utilize and apply the principles contained in one such provision while dealing 'with the other. The Pakistan Penal Code and the Code of Criminal Procedure are even otherwise statutes which complement and supplement each other in most respects and are generally perceived as counterparts in our system of criminal justice. Thus: if we have a makeshift substitute available in the Code of Criminal Procedure for the provisions of the Pakistan Penal Code struck down by this judgment then I see no reason why the said substitute-available in the Code of Criminal Procedure may not be utilized for temporarily filling up the vacuum. It is, therefore, declared that till such time the relevant.
Legislature enacts any provision or provision to substitute for the provisions of the Pakistan Penal Code struck down by this Court through the present judgment matters regarding the mode of payment and recovery of Diyat, Arsh and Daman and treatment of the convicts for the same shall be , dealt with' had handled by the concerned Courts and authorities in accordance with the provisions of section 544-A,Cr. P. C. With necessary adaptations, if required."
7. Though, learned D.P.-O. Relied on this cited ruling but conversely Mr. Salman Hamid Advocate for the appellant read out the relevant paragraphs of the judgment, particularly pars 32 of the citation that in case a convict's failure to pay compensation to the victim or' his heirs to pay Diyat, Arsh and Daman, shall immediately released from the prison if he had already undergone imprisonment for a period of six months on account of non-payment of Diyat, Arsh and Daman. However, it has been clarified that, in view of the provisions of section 544-A, Cr.P.C. Despite their release from prisons, the liability of the convict regarding payment of Diyat Arsh and Daman shall remain intact and the amount due from him shall be recoverable as arrears of land revenue and it is further clarified that at any stage of the matter destitute convicts shall be entitled to apply before the concerned authority for assistance from the Zakat Fund or Bait-ul-Maal towards payment of Diyat and Daman or fine and the concerned authorities shall be obliged to consider and take decisions on all such requests in accordance with the relevant law and procedure.
8. By amendment in P.P.C. Vide Ordinance No, VI of 2007 new subsection viz section 4(ii) for subsection (ii) has been substituted in the following words:- "(2) Where a convict fails to pay daman or any part thereof within the period specified in subsection (la), the convict may be kept in jail and dealt with in the same manner as if sentenced to, simple imprisonment until daman is paid in full or may be released on bail if he furnishes security or surety equivalent to the amount of daman to the satisfaction of the Court or may be released on parole as may be prescribed in the rules."
9. With regard to not extending the relief provided by section 382-B, Cr.P.C. No specific sufficient and convincing reason or cause has been shown in the impugned order, excepting that the accused has destroyed the life of the victim. The learned trial Court has seriously erred not to follow the object of section 382-B, Cr.P.C., the purpose of this provision is to compensate accused for the delay in conclusion of trial. First of all, for the sake of convenience section 382- Cr.P.C. Is reproduced hereinbelow:-- "382-B. Period of detention to the considered while awarding sentence of imprisonment.--- Where a Court decides to pass a sentence of imprisonment on an accused for an offence, it shall take into consideration the period, if any, during which such accused was detained in custody for such offence.
10. A bare reading of the provision i.e, section 382-B, Cr.P.C. Transpires that it is mandatory and ordinarily its benefit is to be extended to the accused for the period he remained or detained in custody as an under-trial prisoner at the time of awarding him sentence of imprisonment by the trial. Court in the normal course, unless the case is of exceptional facts and circumstances or the conduct or accused warrants denial of such benefit to him. It is settled that the Courts while passing sentence of imprisonment must state in the order/judgment whether benefit of section 382-B,'Cr.P.C. Is extended to the accused or not and if accused does not deserve the said concession, the court must record reasons, in brief, for refusing to extend benefit of this section.
Judicious discretion is always to be exercised in favour of convict unless it is unjustified or cause harm to any other party.
11. It seems that the spirit which inspired the enactment of section 382-B of the Code is recognition by the law makers of a more rational treatment of the pre-sentence period in jail. As the accused was put in jail for the very offence for which he was convicted and sentenced to imprisonment and fine including payment of Daman, the pre-sentence period spent by him in jail was not in vain and must, therefore, be taken into account despite of the fact as to whether his detention in jail was punitive or otherwise, the consequences, as regard the appellant/accused detained was the same, namely deprivation of liberty and that is certainly punishment. Since no reasonable cause being available for denial of benefit of section 382-B to the accused, benefit should not be declined.
Reliance in this respect may be placed on Hon'ble Supreme Court judgments reported as ALOO v.
THE STATE (2000 SCMR 1655), SULTAN AND ANOTHER v. THE STATE (2000 SCMR 1818), JAVED IQBAL v.
THE STATE (1998 SCMR 1539). In the reported judgment as MUHAMMAD RAFIQ v. THE STATE (1995 SCMR 1525), the Hon'ble Supreme Court held that the English and the Indian Acts do not, therefore, leave, as regards the pre-sentence period spent in jail and that the period so spent in jail shall automatically count towards the sentence of imprisonment imposed by the Court and the sentence of imprisonment shall reduce, accordingly. In the result, by not extending the benefit of this mandatory provision, the trial court rather committed gross irregularity and infirmity, which part of judgment cannot be sustained, therefore, the impugned order to such an extent is set aside.
12. Crux of the aforementioned discussion is that sufficient material has brought on the record including jail roll showing that the appellant/accused served out his entire sentence of imprisonment but being detained in jail only on account of non-payment of Daman. Keeping in view the nature of heinous offence and brutal act on the part of the accused, I reached at the irresistible conclusion that the liability of B appellant/accused to pay Daman, however, would remain intact and the relevant amount would be recovered in the manner provided under the law.
Need arises to clarify that the appellant/accused may apply for assistance from the Zakat fund or Bait-ul-Maal or from NGOs etc., who may consider and take decision on his request in accordance with the relevant law and procedure.
13. Admittedly, the applicant/accused has already undergone the awarded sentence, the concerned jail authority is, therefore, directed to release him on realization of Daman amount, or alternatively, the appellant/accused, if so like, be released on his furnishing surety/security of an equal amount to Daman to the satisfaction of Nazir of this Court.
' Application along with appeal is disposed of in the manner indicated above.