ANWAARUL HAQ PANNUN, J. By means of instant application under section 561-A, Cr.P.C. the petitioner has questioned the vires of order dated 24.11.2011 passed by respondent No.3/Additional Sessions Judge, D.G Khan, dismissing a criminal revision petition filed by him against the order dated 17.10.2011 passed by respondent No.2/Magistrate Section-30, D.G. Khan, whereby he ordered the petitioner to pay back/return the amount of Daman Rs.90,000/-, deposited by the convict and received by him being an injured witness in pursuance of the judgment dated 29.06.2011.
2. The shorn of unnecessary factual details of the matter, suffice it to state that on 11.07.2003 at about 2.30/3.00 p.m., while armed with deadly weapons, respondent No.5 along with his co- accused, in furtherance of their common intention, caused injuries on the bodies of Ghulam Haider, Faiz Muhammad PWs, consequently, on the complaint of the petitioner, a criminal case vide FIR No.106, dated 11.07.2003, offence under sections 324, 342, 427, 337-A(v), 337-A(i), 337-F(iii), 337-F(i), 34, P.P.C., was registered at Police Station Kot Mubarik, District Dera Ghazi Khan against the culprits.
The investigation was encapsulated into a report under section 173 of the Code of Criminal Procedure, 1898. On the conclusion of a thorough trial, respondent No.5 along with his co-accused Manzoor and Shamla were convicted and sentenced vide its judgment dated 29.06.2011, passed by learned trial Court as under:- "Accused Manzoor (Under section 337-L(1), P.P.C.)
Rigorous Imprisonment for two years and is liable to pay Daman Rs.50,000/- to legal heirs of Ghulam Haider deceased injured and in case of non-payment of Daman, he shall further undergo simple imprisonment till the payment of Daman.
(Under section 337-A(i), P.P.C.)
To pay Daman Rs.30,000/- to legal heirs of Ghulam Haider injured and in default thereof to further undergo simple imprisonment till the payment of Daman.
(Under section 337-L(2), P.P.C.)
To pay Daman Rs.20,000/- to legal heirs of injured Ghulam Haider and in case of non-payment of Daman, he shall further undergo simple imprisonment till the payment of Daman.
Accused Shamla (Under section 337-A(i), P.P.C.)
To pay daman Rs.30,000/- to injured Riaz Ahmad and in default, he shall undergo for simple imprisonment till the payment of Daman.
Accused Yasin (Under sections 337-A(i), 337-L(2) and 337-F(v), P.P.C.)
To pay daman total Rs.90,000/- to injured Riaz Ahmad and in default, he shall undergo for simple imprisonment till the payment of Daman.
All the Daman shall be paid in lump sum. The convict Manzoor was given benefit of section 382-B, Cr.P.C, if any."
It will be important to note that on pronouncement of judgment, respondent No.5 Ghulam Yasin and his co-convict Shamla after depositing the amount of Daman Rs.90,000/- and Rs.30,000/-, respectively, with the learned trial Court vide challan No.200 dated 29.6.2011, secured their release.
The amount of Daman, after it was ordered to be released by the Trial Court, was received by the petitioner, on 05.07.2011. Respondent No.5 and his other co-convict Manzoor Hussain challenged the aforesaid judgment of their conviction by filing an appeal under section 408, Cr.P.C on 02.07.2011 before the learned lower Appellate Court. Shamla, the co-convict, however did not prefer appeal against his conviction and sentence. While extending the benefit of doubt, the learned Addl.
Sessions Judge, D.G Khan, seized of the matter, proceeded to acquit respondent No.5 and his co- appellant of the charge, vide its judgment dated 23.08.2011. Thereafter, respondent No.5, after his acquittal, moved a miscellaneous application before the learned trial Court with the prayer that "the Daman amount, he deposited in pursuance of the judgment of his conviction and sentence, which since has been released to the petitioner by the court, may be ordered to be returned to him. The learned Illaqa Magistrate, D.G Khan, ordered the petitioner to reimburse the amount of Daman, vide its order dated 17.10.2011, which, in its verbatim is reproduced as under:- After submitting bail bonds in terms of above order, the petitioner was released from custody.
Thenceforth, he challenged the aforesaid order by filing a criminal revision petition, which was dismissed vide judgment dated 24.11.2011 by the learned Addl. Sessions Judge, D.G Khan. Hence this criminal miscellaneous petition.
3. Arguments heard. Record perused.
4. At the very outset, it may be observed that the Criminal Courts are established for dispensation of justice, under the law. Likewise the Special Courts or the Tribunals are also established in order to try certain offences under the provisions of their respective statutes. The proceedings before courts are regulated by the statutory provisions. Broadly speaking the trial can be divided into two kinds
(1) Summary trial (2) regular trial. For holding both kinds of trial, different procedures have been provided by law. Regular trial can be held under the law by more than one class of Court i.e. Court of Session and that of Magistrate. Holding a person, accused of an offence, [under general, local or special law], guilty of the charge for committing an offence either on pleading or making of confession of his guilt or on the conclusion of a thorough trial by a Court is known as conviction in the legal parlance. Concomitantly, the conviction is followed by imposition/awarding of the punishment prescribed under the relevant law for such offence or offences by a trial Court. It may be relevant to point out that while enacting "The Punjab Sentencing Act, 2019 (XXXIV of 2019)", the Provincial Legislature has enumerated various factors, which may be considered to improve consistency while sentencing by the courts. According to section 53, P.P.C., an offender, upon having been found guilty of the charge may be imposed upon any one or more, out of the following punishments i.e. Qisas, Diyat, Arsh, Daman, Death either as Qisas or Ta'zir, Imprisonment for life, (Imprisonment is of two descriptions, namely:-- (i) Rigorous, i.e., with hard labour (ii)
Simple), Forfeiture of property and Fine by a court of competent jurisdiction. Under the Hudood Laws, the punishment of whipping and flogging was also permissible. Furthermore, Chapter XVI, P.P.C., deals with the offences affecting human body, section 299(b), P.P.C. provides that "arsh" means the compensation specified in that Chapter to be paid to the victim or his heirs. Similarly under clause (d) of the ibid Section, "Daman" has been defined as the compensation determined by the Court to be paid by the offender to the victim for causing hurt not liable to arsh. Likewise under clause (e) of the same provision, definition of "Diyat" has also been given, as the compensation specified in section 323 [value of Diyat] payable to the legal heirs of the victim. It may also be beneficial to state that the term "Ta'zir" under clause (i) has been defined as a punishment other than Qisas, Diyat, Arsh or Daman.
5. In the above noted background, the reading of the provisions of sections 337-Y, P.P.C., 382-A, 404, 412 and 426, Cr.P.C in their befitting chronology seems to be necessary. For ready reference section 337-Y, P.P.C. is reproduced as under:- Value of daman. (1) The value of daman may be determined by the Court keeping in view:
(a) the expenses incurred on the treatment of the victim;
(b) loss or disability caused in the functioning or power of any organ; and
(c) the compensation for the anguish suffered by the victim.
[(1a) The daman may be made payable in lump sum or in installments spread over a period of five years from the date of the final judgment;] [(2) Where a convict fails to pay daman or any part thereof within the period specified in subsection (1a), 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.] Subsection (1) of the above narrated Provision points out the factors which may be considered while determining the value of daman. Perusal of subsection (la) of the above provision further indicates that the daman can either be paid in lump sum or in installments, spread over a period of five years from the date of final judgment by a convict. The term decision or judgment appears to be interchangeable because of their implication and effect. The Black's Law Dictionary 9th edition defines the term final judgment as under:- "A court's last action that settles the rights of the parties and disposes of all issues in controversy, except for the award of costs (and, sometimes, attorney's fees) and enforcement of the judgment.
Earlier in the case reported as "Abid Hussain and another v. Chairman, Pakistan Bait-ul-Mal and others" (PLD 2002 Lahore 482), it was held by this Court that "After the final judgment by the Court (presumably the trial Court) the convict is to be allowed a period not exceeding three years to pay Diyat or Arsh either in lumpsum or in installments." The said judgment was challenged before the august Supreme Court of Pakistan vide case reported as "Government of Punjab, Lahore v. Abid Hussain and others" (PLD 2007 Supreme Court 315), however, the same was not only upheld but the apex Court issued the directions to the Federal Government for framing the rules for payment of diyat, arsh and daman, resultantly, Federal Government framed the rules namely "The Diyat, Arsh and Daman Fund Rules, 2007, which hereinafter shall be called the "Rules 2007". Rule 11 being relevant is reproduced as under:-
11. Release of convict on parole. Where a convict has served out the substantive sentence of imprisonment and makes payment of diyat, arsh or daman, he may be released on such terms and conditions as may be determined by the Court for payment of remaining amount. The Court may pass an order for detention of the convict if he fails to fulfill the terms and conditions of release.
6. It is important to point out that the period of 03 years prescribed for the payment of diyat, arsh and daman, by the above referred judgment of this Court, had later-on been extended up to 05 years through an amendment i.e. Pakistan Penal Code (Amendment) Act, 2010 (Act XV of 2010 dated 22.06.2010). It is further observed that the moment, an order under section 337-Y, P.P.C. permitting the convict to pay the requisite amount either in installments or in lumpsum by the Court, is passed, by implications, the convict is barred from challenging his conviction by way of appeal as no-body can be allowed to approbate and reprobate in the same breath, rather he would be bound by his previous stance. Reliance is placed upon case reported as "Mst. Ubaida v.
Makhdoom Abrar Ahmad and 2 others" (1986 PCr.LJ 539), "Sakhawat Ali v. The State" (1999 PCr.LJ 450), "Faiz Muhammad v. A. Rauf and others" (1999 PCr.LJ 864), "The State v. Muhammad Umar alias Chotoo" (2003 PCr.LJ 216) and "Attaullah v. Abdur Razaq and another" (PLD 2002 Supreme Court 534). Furthermore, under section 412, Cr.P.C, except on the ground of its legality, no appeal is maintainable against a judgment of conviction, passed upon pleading guilty of the charge, by a convict. The seeking of a permission by a convict to pay Diyat, Arsh or Daman, while invoking the power of a court, which has passed the final judgment, in-fact amounts to accepting his conviction and sentence, foregoing his right of appeal. Upon passing an order by a court under section 337-Y(la), P.P.C., allowing prayer of the convict, the judgment of conviction attains finality.
The criminal Court after passing a final judgment becomes functus officio. Such court has been vested with the power under section 337-Y, P.P.C. read with Rule 11 of Rules 2007 to pass an order for giving effect to its own judgment.
7. A criminal Court may afford an opportunity of hearing to a victim or heirs of victim as the case may be, while passing the order on the request of a convict for payment of amount in installments to eliminate any possibility of maneuver, pretention or misrepresentation regarding financial status of an unscrupulous convict. Furthermore, section 337-Y(2), P.P.C. read with rule 11 of Rules 2007, manifest that in case 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 he has been sentenced to simple imprisonment until daman is paid in full or he may be released on bail upon furnishing his security or surety equivalent to the amount of daman to the satisfaction of the court or may be released on parole as prescribed in the rules.
8. In addition to above, it is a fundamental right of every person, accused of an offence under Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973 to have a fair trial to be held by a properly and legally constituted Court or Tribunal. The appeal is a statutory right of an aggrieved individual or authority and same cannot be exercised on any analogy unless expressly conferred upon under some law. The provision of section 404, Cr.P.C is an embodiment of this concept which reads as follows:- "No appeal shall lie from any judgment or order of a criminal court except as provided for by this code or by any other law for the time being in force".
9. For what has been discussed above, in the given circumstances, the question of maintainability of an appeal by a convict, yet can be looked into from another angle. After passing the sentence, the convict has to be taken into custody for execution of his sentence in terms of section 383, Cr.P.C, unless execution of his sentence is postponed in terms of section 382-A, Cr.P.C. For ready reference, section 382-A, Cr.P.C. is reproduced as under:- [382-A. Postponement of execution of sentence of imprisonment under Section 476 or for a period of less than one year. Notwithstanding anything contained in Section 383 or 391, where the accused:
(a) is awarded any sentence of imprisonment under section 476, or
(b) is sentenced in cases other than those provided for in section 381, to imprisonment whether with or without fine or whipping for a period of less than one year. the sentence shall not, if the accused furnishes bail to the satisfaction of the Court for his appearance at such time and place as the Court may direct, be executed, until the expiry of the period prescribed for making an appeal against such sentence, or, if an appeal is made within that time, until the sentence of imprisonment is confirmed by the appellate Court, but the sentence shall be executed as soon as practicable after the expiry of the period prescribed for making an appeal, or, in case of an appeal as soon as practicable after the receipt of order of the appellate Court confirming the sentence]."
Section 382-A, Cr.P.C makes it clear that a convict who is awarded a sentence of imprisonment less than one year, upon furnishing his bail bonds to the satisfaction of the trial Court for his appearance as the Court may direct, his sentence of imprisonment shall be postponed and shall not be executed until the expiry of period for making an appeal against such conviction and sentence and if an appeal is made within that time, until the sentence of imprisonment is confirmed by the appellate Court. The submission of bail bonds by a convict for the postponement of his sentence enabling him to file an appeal, in-fact amounts to surrendering before the Court.
The august Supreme Court of Pakistan has authoritatively held in the case reported as "Muhammad Adnan alias Dana v. The State and others" (2015 SCMR 1570) that without surrender, appeal against the conviction is not maintainable. Let's have a close look at the provision of section 426, Cr.P.C having nexus with the issue under determination, which is reproduced hereunder in its verbatim:- Section 426 Cr.P.C Suspension of sentence pending appeal: Release of appellant on bail. (1)
Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail or on his own bond.
[1-A] Omitted by Ordi. LIV of 2001, PLD 2002 Cent. St. 973, w.e.f. 10.10.2001.
[1-A] .........................
(a) ............................
(b) ............................
(c) ............................
(2) The power conferred by this section on an appellate Court may be exercised also by the High Court in the case of any appeal by a convicted person to a Court subordinate thereto.
[2-A) [Subject to the Provisions of section 382-A,] when any person other than a person accused of a non-bailable offence is sentenced to imprisonment by a Court, and an appeal lies from that sentence, the court may, if the convicted person satisfies the Court that he intends to present an appeal, order that he be released on bail for a period sufficient in the opinion of the court to enable him to present the appeal and obtain the orders of the Appellate Court under subsection
(1) and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.
(2-B) Where a High Court is satisfied that a convicted person has been granted special leave to appeal to the Supreme Court against any sentence which it has imposed or maintained, it may if it so thinks fit order that pending the appeal the sentence or order appealed against be suspended, and also, if said person is in confinement, that he be released on bail.
(3) When the appellant is ultimately sentenced to imprisonment, or [Imprisonment for Life], time during which he is so released shall be excluded in computing the term for which he is so sentenced.
The provision of section 426, Cr.P.C. clearly deals with a situation where the case of a convict is not covered by section 382-A, Cr.P.C. and the convict thus being in custody, pending his appeal, can be released on bail by way of suspension of his sentence. The above discussion leads this court to conclude that a convict either can file an appeal against his conviction and sentence being on bail under section 382-A, Cr.P.C or he can seek his release on bail under section 426, Cr.P.C during the pendency of his appeal, while being under custody. It is, therefore, held that unless convict is either on bail by way of postponement of his sentence in terms of section 382-A, Cr.P.C. or he is confined in terms of the provisions of Chapter XXVIII, Cr.P.C. (of execution), no appeal against the judgment of conviction can be entertained. Further, in absence of any express provision of law, it is not lawful for a Court to allow the convict to deposit such amount of "Diyat, Arsh and Daman" under protest for his release except as required under section 337-Y(1a), P.P.C. and any departure therefrom would amount to act without lawful authority, thus not sustained in the law.
10. So far as the argument of learned Prosecutor assisted by learned counsel for the complainant that after passing the judgment of acquittal of respondent No.5, since the petitioner had not challenged it by resorting to available remedy of appeal under section 417(2)(A), Cr.P.C. and as such acquittal judgment has attained finality, therefore, this court cannot examine the question of maintainability of appeal filed by respondent No.5 at this stage. I am afraid that in view of revisional jurisdiction, vested with this court, under section 439, Cr.P.C. above noted argument of learned Prosecutor has no legs to stand. For ready reference, section 439, Cr.P.C is reproduced as under:-
439. High Court's powers of revision. (1) In the case of any proceeding the record of which has been called for by itself, [....] or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 423, 426, 427 and 428 or on a Court by section 338, and may enhance the sentence; and when the Judges composing the Court of Revision are equally divided in opinion, the case shall be disposed of in manner provided by section 429.
(2) No order under this section shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defense.
(3) Where the sentence dealt with under this section has been passed by Magistrate [....], the Court shall not inflict a greater punishment for the offence which, in the opinion of such Court, the accused has committed, than might have been inflicted for such offence by Magistrate of the first class.
[(4) Nothing in this section shall be deemed to authorize a High Court:
(a) to convert a finding of acquittal into one of conviction; or
(b) to entertain any proceedings in revision with respect to an order made by the Sessions Judge under section 439-A.]
(5) Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed.
(6) Notwithstanding anything contained in this section any convicted person to whom an opportunity has been given under subsection (2) of showing cause why his sentence should not be enhanced, shall, in showing cause, be entitled also to show cause against his conviction."
11. It is pertinent to mention here that during hearing of instant application, vide order dated 12.10.2020, the record of learned appellate court had been requisitioned and after perusal thereof, the above noted factual and legal defects have been found in existence. It has been ruled by the august Supreme Court of Pakistan in case reported as "Dr. Waqar Hussain v. The State" (2000 SCMR 735) that:- "The intention of the law to confer suo motu powers of revision on the High Court is to ensure that the Courts subordinate to it act strictly within the legal bounds and do not transgress their jurisdiction and the findings, sentence or orders, recorded or passed by them are just and legal, but, nevertheless, in order to avoid any impression of arbitrariness in the exercise of this power the order of initiating suo motu proceedings by the High Court should mention the ostensible error or irregularity in the orders or proceedings of the subordinate Courts. This would help the parties in knowing the reasons for such an action. So far as the power of the High Court under section 439, Cr.P.C. are concerned, it may be stated that it is not a power only but a duty whenever facts for its jurisdiction are brought to the notice of the Court, or otherwise come to its knowledge because the revisional jurisdiction is in the nature of corrective jurisdiction. To see what types of orders the High Court can pass under section 439, Cr.P.C., the case of Emperor v. Varjivandas alias Kalidas Bhaidas (ILR 1903 (Bombay) Vol.XXVII, page 84) may be cited wherein it was observed as under:- "the fact that this particular power which is conferred by section 423 on Courts in the exercise of their appellate jurisdiction, is excluded in express terms in section 439 seems clearly to point to the conclusion that all the other powers not expressly excluded may be exercised by the High Court as a Court of Revision."
The following observations of this Court in Mushtaq Ahmad v. The State (PLD 1966 SC 126, at page 128) may also be advantageously quoted:-- "....Under section 439 of the Criminal Procedure Code the High Court has a power to interfere upon information in, whatever way received, as the section clearly says that it may do so in any case in which it has itself called for the record or which has been reported for orders or which otherwise comes to its knowledge. These are words of wide import. In the present case the record of the case was placed before the learned Judge in the course of his inspection and the facts of the case thus came to his knowledge. Under this section the High Court has also the right to exercise its power on its own initiative and there can be no warrant for the proposition that the High Court is debarred from examining the record suo motu."
Ramgopal Ganpatrai Ruia and another v. State of Bombay (PLD 1958 SC (Ind.) 293, at page 303) is another authority on this proposition. It was held therein:-- .....We have, therefore, to look into section 423 to find out not the cases in which the High Court can interfere but only the nature of the power that it can exercise in a case, in its revisional jurisdiction, that is to say, we have to incorporate only the several powers contained in section 423, into section 439 except the power to convert a finding of acquittal into one of conviction".
The case of Khatija v. The State and another (PLD 1978 Karachi 348, at page 356) may also be cited where it was held that:-- " ....Both under section 439 and under section 561-A(a) of the Criminal Procedure Code this Court can act suo motu and it is not necessary that it should have the application of any person before itself."
12. Epitome of above discussion is that respondent No.5 upon pronouncement of conviction and awarding the punishment of "Daman" by the learned Judicial Magistrate Section 30, D.G Khan, immediately deposited the amount of Rs.90,000/- and secured his release. Admittedly, his punishment was not postponed in the manners contemplated by section 382-A Cr.P.C, rather it stood executed, therefore, the appeal filed by respondent No.5 was incompetent. The learned lower appellate Court had failed to examine the aspect of maintainability of appeal, despite the fact that the Court was bound to examine the question of maintainability before passing any order thereon.
I have no hesitation in my mind to hold that order of acquittal is of no consequences being patently illegal, without jurisdiction and thus cannot sustain in the eye of law, consequently, while exercising inherent powers under section 561-A, Cr.P.C, which enables the High Court to make an order which is deemed appropriate for giving effect to any order passed under Code of Criminal Procedure or prevent abuse of process of any Court or otherwise to secure the ends of justice, the judgment of acquittal dated 23.08.2011 passed by lower appellate Court, the order dated 17.10.2011 passed by. learned Magistrate Section-30, directing the petitioner to reimburse the amount of "Daman" and the order of Revisional Court dated 24.11.2011 are set aside being patently illegal and this petition is allowed for giving effect to the order dated 29.06.2011 of learned Magistrate Section- 30, D.G Khan whereby respondent No.5 was allowed to deposit the amount of "Daman" imposed upon him.