FAZAL SUBHAN, J.- Through the instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has prayed as following:- "in wake of the above submissions, it is, therefore, respectfully prayed that the diyat and other fine compensation amount may kindly be deposited from the petitioner in installments keeping in view the financial position of the petitioner/convict, and till the final payment of the diyat and compensation amount petitioner may kindly be released on bail in furtherance of justice".
2. Brief facts of the case are that the petitioner faced trial in case FIR No.472 dated 05.9.2010, registered under sections 302, 324, 449, 337- F(iii), 337-A(iii) PPC of Police Station Cantt: D.I.Khan.
The learned Additional Sessions Judge-IV, D.I.Khan, convicted the petitioner and sentenced him as following:- Under Section 302(b) PPC sentenced to death as Tazeer on three counts with payment of Rs.2,00,000/- to be paid to the legal heirs of each deceased under Section 544-A, Cr.P.C and in case of default in payment of compensation, the same shall be recoverable as arrears of land revenue.
Under Section 449/34 PPC, sentenced to undergo three years R.1 alongwith fine of Rs.20,000/- or in default of payment of fine to suffer further two months S.I.
Under Section 337-F(iii)/34 PPC for causing injuries to complainant, he was sentenced to deposit Rs.20,000/- as Daman to be paid in the Court to the injured Tasawar Hussain with simple imprisonment of three years. Under Sections 337-F(iii)/34 PPC, for causing injuries to minor Abubakar, he was sentenced to deposit Rs.20,000/- as Daman to be paid in the court to the injured with simple imprisonment of three years. Under Section 337-A(iii)/34 PPC for causing firearm injuries to the minor on his head, he was sentenced to deposit Rs.20,000/- as Daman to be paid in the court to the injured with simple imprisonment of three years. Under Section 324/34 PPC, sentenced to five years R.I. with fine of Rs.20,000/- or in default thereof to further undergo three months S.I.
All the sentences were ordered to run concurrently with benefit of Section 382-B, Cr.P.C. Murder Reference in terms of Section 374, Cr.P.C. was sent to this Court for its confirmation.
3. Against the aforesaid conviction, the petitioner field Cr.A.No.14-D of 2017 with M.R.No.02-D/20I7, before this Court, which was partially allowed vide judgment dated 14.11.2017, wherein judgment of conviction was upheld, however, keeping in view the weak motive with regard to the present petitioner, the sentence awarded to him was converted from death sentence to imprisonment for life with extension of benefit of Section 382-B, Cr.P.C, while rest of the sentences and fines were kept intact and to run concurrently. Now the petitioner has filed this petition seeking payment of diyat amount in installments.
4. Record shows that the petitioner after being charged in the above mentioned murder case, was tried and convicted by the learned Additional Sessions Judge-IV, D.I.Khan on 08.02.2017 and sentenced as mentioned in paragraph 2 of this judgment. The petitioner challenged his conviction before this Court in Criminal Appeal No.14-D/2017 and vide judgment dated 14.11.2017, his conviction was upheld, however, his sentence of death was reduced to imprisonment for life, whereas benefit of Section 382-B, Cr.P.C was extended to him, while rest of the sentences and fines were kept intact, and to run concurrently.
5. From the record, it is clear that after earning remissions, the petitioner has completed his substantive sentences and he is now languishing in prison for default in payments of compensation under Section 544-A, Cr.P.C, on three counts, payment of Daman u/s 337-F(iii) PPC, on two counts and Section 337-A(iii) and 34 PPC and fine of Rs.20,000/- and in default three months. The report of Superintendent Central Prison, D.I.Khan reveals that in default of fine, the petitioner is undergoing 2+3 months, total 5 months simple imprisonment, and to be completed on 18.7.2024. The petitioner, however, has approached this Court with instant petition, with the contention that he has completed all his sentences and as he is unable to pay diyat amount, hence requested for order of payment through installments, with further prayer for his release on surety bond.
6. Learned counsel for petitioner, in his arguments, in addition to the grounds raised in the petition, has further submitted that after award of sentences under the main offence as well as sentences of fine and in default thereto, the sentences of simple imprisonment were to run concurrently and not consecutively and that as petitioner has completed 3 months S.1 in default of payment for the sentence under section 324/34 PPC, therefore, it includes sentence of default of 2 months awarded to him under section 449/34 PPC, as these sentences have to run concurrently.
Learned A.A.G, on the other hand, submitted in his arguments that as far Section 35 read with Section 297, Cr.P.C, the sentences awarded in several/different offences in the same trial, the court passing the sentence can pass an order that such punishments shall run concurrently, however, in respect of imprisonment for default of fine (s), the Court has no such powers under the law and such sentences in the wake of default in payment (s) of fine (s), shall run one after another. In this respect, he made reliance on the case law reported in 2005 YLR 1551 and PLD 2015 S.0 15). As a rejoinder, learned counsel for petitioner submitted that if this Court arrives to the conclusion that the sentences in default of payments of fines shall run consecutively, then he is ready to deposit the entire amount i.e. compensation under section 544-A, Cr.P.C on 3 counts, Daman for three offences and fine amount under section 449/34 PPC, as he has already undergone three months simple imprisonment for conviction/sentences awarded under section 324/34 PPC.
8. Having heard the above arguments and considering the available record, needless to say that Section 53 of the Pakistan Penal Code, 1860, (Penal Code) has prescribed punishments for which an offender can be punished, which includes, Qisas, Diyat, Arsh, Daman, Tazir, Death, imprisonment for life, imprisonments which may be rigorous or simple, forfeiture of property and fine. From the above provided sentences, fine has been prescribed as a distinct and independent punishment and therefore, in addition to the main/substantive punishment, the Court can award a punishment of fine, wherever is provided under the Penal Code.
9. Careful perusal of Section 35 read with Section 397 of Cr.P.C would show that in the matter of awarding sentences for different offences in a criminal trial, the Court has been given discretion to order that sentences so awarded for different offences in the same trial may commence one after the other in such manner, as the Court directs. At the same time, the Courts have been given discretion to pass an order that such punishments shall commence simultaneously and to run concurrently, however, in the matter of punishments of fines, or in default to undergo simple imprisonment for certain terms, no such powers or discretion has been given to the Courts and in that case the simple imprisonment in default of payments of fines shall run one after another or consecutively. In this respect, I would like to refer the judgment in case of "Ali Abbas v. the State" reported in PLD 1959 (W.P.) Karachi 56, "Shaheen Tahir v. Superintendent, Central Jail, Faisalabad and another" reported in PLD 2008 Lahore 497, "Abdul Majid v. The State and another" reported in 2005 YLR 1551 [Quetta] and "Mst. Sliaista Bibi and another v.
Superintendent, Central Jail, Mach and 2 others" reported in PLD 2015 Supreme Court 15. In case of "Ali Abbas v. the State" reported in PLD 1959 (W.P.) Karachi 56, it was held that: "The trial Judge has committed an error in making 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. This mistake appears to be common in this part of the country and attention to it has been drawn in another case too".
Similarly, in case of "Shaheen Tahir v. Superintendent, Central Jail, Faisalabad and another" reported in PLD 2008 Lahore 497, it was held that: "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 % of a sentence which is actually passed by the trial Court. Section 35, Cr. P. C. empowers trial Court to allow substantive sentence 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".
10. For the aforesaid reasons, it is held that the sentences of fine and in default thereof, to undergo simple imprisonment for two and three months respectively, shall run consecutively, however, learned counsel for petitioner proposed, as a last resort, while concluding his arguments, that the petitioner is ready to pay not only the aforesaid fine of Rs.20,000/- in default of two months but also ready to pay compensation under Section 544-A, Cr.P.C. Rs.200,000/- to legal heirs of each deceased, total Rs.600,000/-, plus amount of Daman of Rs.60,000/- i.e. total amount Rs.680,000/-.
In this view of the matter, we direct the petitioner to deposit Rs.680,000/- and in light whereof, the Jail Authorities shall consider his release, as per law and rules. This petition is disposed of accordingly.
11. Above are the reasons of our short order of even date.