1. ' NAIMUDDIN, J.--Leave to appeal was granted to consider the following questions:
(1) Whether under the provisions of section 70 of the P.P.C. The amount of fine imposed on the appellant could not be realised after he had served out his substantive sentence as well as that awarded to him in lieu of payment of fine, specially when it was more than the period of six years provided in section 70, P.P.C.
(2) Whether in view of the proviso to subsection (1) of section 386, Cr.P.C. Warrant under clauses (a) and (b) of the said subsection could issue against the appellant.
(3) Whether the fine could be realised in any other manner.
2. ' The relevant facts giving rise to this appeal are that on 12th October, 1959, the appellant was sentenced to 10 years' R.I. Under section 120-B, P.P.C., 3 years' R.I. Under section 379, P.P.C., 7 years' R.I.
3. Under section 420, P.P.C., 10 years' R.I. Under section 467, P.P.C., 7 years' R.I. Under section 477, P.P.C.
4. And to pay a fine Rs,50,000 under section 420, P.P.C. Or in default of payment of fine to undergo R.I.
5. For one year and 9 months. The substantive sentences of imprisonment were to run concurrently.
6. The appellant did not pay the fine. He was released on 6th August, 1966.
7. ' Sometime after release the appellant was caught by the police in another case. A sum of Rs,3,29,500 and some gold ornaments worth about Rs,10,000 were recovered from the appellant's possession during the course of investigation but later on the property recovered from him was ordered to be entrusted to him on `Sepurdari'. Out of the cash amount then lying with the Treasury Officer, Lahore, the Sessions Judge, Sargodha, issued on 7th March, 1968, a direction for attachment of Rs,50,000 on an application made by Central Cooperative Bank Limited, Sargodha, for recovery of Rs,50,000 being the amount of fine imposed on the appellant which was not paid by him. The appellant objected to this application. The Sessions Judge, however, by the order dated 7th March, 1968, allowed the application and ordered as follows: "The cash has already been attached as interim measure. This attachment is made absolute. A warrant may be issued for the attachment of the cash. This amount shall be paid to the petitioner as ordered by the order of sentence passed at the time of the conviction of the respondent (appellant herein)."
8. ' Aggrieved by this order the appellant filed a criminal revision application, being 320/1968, in the Lahore High Court, which was dismissed by the order dated 22nd October, 1988, leading to the filing of the appeal by leave for consideration of the aforementioned questions.
9. ' Before the High Court it was contended that the fine imposed on the appellant by the order dated 12th October, 1959, could not be recovered, after his release, on 7th March, 1968, in view of the provision of section 70, P.P.C. As the fine could be recovered either within the six years of the passing of the sentences or at any time before the expiration of the sentence of imprisonment if the offender is sentenced to imprisonment for a term longer than six years and in the present case he had suffered the sentences.
10. ' It was further contended on behalf of the appellant that section 386, Cr.P.C., prohibits the recovery of fine after the appellant has undergone the sentence of imprisonment in lieu of fine.
11. ' The High Court found that in the present case the appellant had been sentenced for a longer period than six years and his liability to pay the fine continued till the expiration of the period for which he was sentenced. They further observed that "the period for which the offender remains in the jail and undergoes the sentence of imprisonment is not relevant for determining the period of limitation for recovery of fine under section 70, P.P.C., but on the other hand it is the expiry of the period for which he has been sentenced to imprisonment which is relevant for the above purpose."
12. ' Regarding the prohibition of recovery of fine after the appellant has undergone the sentence of imprisonment in lieu of fine the High Court observed that section 386, Cr.P.C. Deals with the mode of levy of fine and proviso to subsection (1) of section 386. Cr.P.C. Which prohibits a Court from issuing warrant for levy of fine deals with only such cases where the period of limitation i.e, six years prescribed under section 70, P.P.C. For levy of fine has not expired but at the same time the offender has undergone the entire sentence of imprisonment including the sentence of imprisonment awarded to him in default of payment of fine. They further observed in a case where the offender is sentenced to imprisonment for a longer period than six years his liability to pay fine continues till the expiration of that period and the proviso to subsection (1) of section 386 Cr.P.C., does not cover his case.
13. ' It may be convenient for ready reference if the provisions of section 70, P.P.C. And section 386, Cr.P.C. Before its amendment by the Law Reforms Ordinance, 1972, are quoted herein below. Section 70, P.P.C. Reads as follows: "Section 70.--Fine leviable within six years, or during imprisonment, death not to discharge property from liability: The fine, or any part thereof which remains unpaid, may be levied at any time within six years after the passing of the sentence, and if, under the sentence, the offender be liable to imprisonment for a longer period than six years, then at any time previous to the expiration of that period; and the death of the offender does not discharge from the liability any property which would, after his death, be legally liable for his debts."
14. Section 386 Cr.P.C. Before its amendment as aforesaid, read as follows: "Section 386.--(1) Whenever an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may--
(a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender;
(b) issue a warrant to the Collector of the District authorizing him to realize the amount by execution according to civil process against the movable or immovable property, or both, of the defaulter: ' Provided that, if the sentence directs that in default of payment of the fine the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue warrant unless for special reasons to be recorded in writing it considers it necessary to do so.
(2) The Provincial Government may make rules regulating the manner in which warrants under subsection (1), clause (a), are to be executed and for the summary determination of any claims made by any person other than the offender in respect of any property attached in execution of such warrant.
(3) Where the Courts issue a warrant to the Collector under subsection (1), clause (b), such warrant shall be deemed to be a decree, and the Collector to be the decree-holder, within the meaning of the Code of Civil Procedure, 1908, and the nearest Civil Court by which any decree for a like amount could be executed shall, for the purposes of the said Code, be deemed to be the Court which passed the decree, and all the provisions of that Code as to execution of decrees shall apply accordingly: ' Provided that no such warrant shall be executed by the arrest or detention in prison of the offender."
15. ' From the narration of the above facts it is clear that on 12-10-1959, he was sentenced, inter alia, under section 120-B, P.P.C. For 10 years and under section 420, P.P.C. For 7 years' R.I. And was released on 6-8-1966, i.e, after six years 9 months 25 days after the grant of remission.
16. It is, therefore, clear that the order of attachment dated 7-3-1968, was passed before the expiry of the maximum period of 10 years for which he was sentenced under section 120-B, P.P.C.
17. Accordingly, the order of levying fine was in conformity with the provisions of section 70, P.P.C. It may be noted here that for the purpose of section 70, P.P.C. The period of remission of sentence granted to a prisoner is not to be counted and it was not claimed that it should be counted.
18. Taking up the second question whether in view of the proviso to subsection (1) of section 386 Cr.P.C. Warrant under the clauses (a) and (b) of the subsection could be issued against the appellant, it may be stated that section 386, Cr.P.C. Relates to procedure of recovery of fine and it is a general rule relating to construction of statutes that in the absence of express provision an adjective law cannot control the provisions of a substantive law. Therefore, the substantive law contained in section 70, P.P.C. Is not to be affected (See Collector of Broach and Panch Mahala v.
19. Ochhavlal Bhikalal AIR 1941 Bom.
20. 158.
21. In the present case firstly, it is not clear from the record that the appellant had fully served out the sentence of imprisonment in default of payment of the fine. Even if he had warrant for recovery of fine could still be issued if there were special reasons for doing so and in this case special reason was that he had means to pay the fine as is evident from the fact that a sum of Rs,3,29,500 and some gold ornaments worth Rs,10,000 were recovered from his possession which property was later on ordered to be entrusted to him on Supardari.
22. ' It is settled that where an offender having the means of paying a fine chooses to undergo imprisonment rather than pay the fine, it is a sufficient special reason which will enable the Court, in its discretion, to order that the fine may be levied, notwithstanding that the offender has served the full term of imprisonment ordered for default of payment of fine. (See statement of Objects and Reasons, 1921). It was observed in Siddappa v. State of Mysore AIR 1957 Mysore 52 that it is wrong to think that serving the full term of imprisonment fixed for default in payment of fine should not be taken as a discharge of liability but only as a reasonable punishment for non-payment of fine.
23. ' In view of the discussion on first two questions, the third question need not be considered.
24. ' In the result we dismiss this appeal.