' The necessary facts giving rise to this petition are that Falak Sher petitioner's uncle Amjad Ehsan son of Khurshid Ahmed, hereinafter called the detenu, and his other co-accused were convicted by the learned Judge, Punjab Special Court for Speedy Trial No,5, Multan vide judgment, dated 4-1- 1988. The following sentences were passed against the detenu and his co-accused by the learned trial Court:-- ' Section 148, P.P.C.: Two years' R.I. Each; ' Section 302/149, P.P.C.: Death sentence to each on four counts plus a fine of Rs,10,000 each on each count or each to suffer two years' R.I. In default of payment of fine; ' Section 307/149, P.P.C.: 10 years' R.I. Each plus a fine of Rs,5,000 each or each to suffer one year R.I.
In default; ' Section 440/149, P.P.C.: Three years' R.I. Each plus a fine of Rs,5,000 each or each to suffer one year R.I. In default; ' Section 295/149, P.P.C.: Two years' R.I. Each plus a fine of Rs,2,000 each or each to suffer six months R.I. In default; ' Section 379/149, P.P.C.: Two years' R.I. Each plus a fine of Rs,1,000 each or each to suffer six months R.I. In default.
' Each convict was further ordered to pay Rs,25,000 as compensation under section 544-A, Cr.P.C.
To Mst. Ghulam Fatima complainant. It was further directed that in case the sentences of death were not maintained and/or altered then all the sentences were to run concurrently.
2. The detenu challenged his convictions and sentences before this Court through an appeal but the same was dismissed by a learned Division Bench of this Court vide judgment, dated 1-11-1988 maintaining and upholding all the convictions and sentences awarded against the detenu by the learned trial Court. On 7-12-1988, through a general amnesty granted by the President of Pakistan, the sentences of death passed against the detenu were substituted by those of imprisonments for life. As already ordered by the learned trial Court such sentences for imprisonment for life were to run concurrently. The detenu never challenged his convictions and sentences any further and, thus, the same attained finality. Through the present petition the detenu nephew Falak Sher petitioner has maintained that the detenu has already served out all his sentences of imprisonment as well as the sentences passed Against him in lieu of payment of fine and compensation. It has also been maintained by the petitioner that the entire fine has also been deposited by the detenu. Thus, according to the petitioner the detenu is entitled to be released from jail as there is no other outstanding sentence of imprisonment to be undergone by him.
3. A notice was issued to the Superintendent of New Central Jail, Bahawalpur in connection with this petition wlio has submitted a report before this Court giving the details of the sentences passed against and undergone by the detenu in this case. The Deputy Superintendent of the said jail has also entered appearance in person in this case and has been heard with reference to the record maintained in the jail with regard to the detenu.
4. After hearing the learned counsel for the parties and going through the relevant record it has emerged as an admitted position that all the sentences of imprisonment passed against the detenu have already been undergone by him by now. The entire fine imposed against the detenu has also admittedly been deposited by him. The sentence of imprisonment passed in default of payment of compensation by the detenu has also admittedly been undergone by him by now.
Thus, the only reason why the detenu is not being released from jail is that he has not paid the amount of compensating so far. I am convinced that continued detention/custody of the detenu in jail is unwarranted as he cannot be kept in custody or detention simply for the reason of non- payment of the amount of compensation especially when he has already undergone the sentence of imprisonment passed against him in default of payment o, compensation.
5. It has been provided by the Legislature in section 544-A, Cr.P.C.: "544-A. Compensation to the heirs of the person killed, etc.--- (1) Whenever a person is convicted of an offence in the commission whereof the death of, or hurt, injury, or mental anguish or psychological damage to, any person is caused, or damage to or loss or destruction of any property is caused, the Court shall when convicting such person unless for reasons to be recorded in writing it otherwise directs, order the person convicted to pay to the heirs of the person whose death has been caused or to the person hurt or injured, or to the person to whom mental anguish or psychological damage has been caused, or to the owner of the property damaged, lost or destroyed, as the case may be, such compensation as the Court may determine having regard to the circumstances of the case.
(2) The compensation payable under subsection (1) shall be recoverable as an arrear of land revenue and the Court may further order that, in default of payment or of recovery as aforesaid the person ordered to pay such compensation shall suffer imprisonment for a period not exceeding six months, or if it be a Court of the Magistrate of the third class, for a period nor exceeding thirty days.
(3) The compensation payable under subsection (1) shall be in addition to any sentence which the Court may impose for the offence of which the person directed to pay compensation has been convicted.
(4) The provisions of subsections (2-B), (3) and (4) of section 250, shall, as far as may be, apply to payment of compensation under this section.
(5) An order under this section may also be made by an Appellate Court or by a Court when exercising its powers of revision."
' A bare reading of subsection (2) of section 544-A, Cr.P.C. Shows that the compensation ordered against a convict is recoverable as an arrear of land revenue and a Court may further order that in default of payment or of recovery of aforesaid amount the person ordered to pay such compensation is to suffer imprisonment for a period not exceeding six months. Thus, the first resort can be had to recovery of such an amount of compensation as an arrear of land revenue and as an additional resort a Court can order that in default of payment or of recovery of the said amount a convict can be ordered to suffer imprisonment for a period not exceeding six months. It goes without saying that the essence and spirit of payment of compensation is to compensate the victim or his heirs and the sentence of imprisonment in default of payment is provided by way of punishing such a convict for not obeying the order of the Court. A punishment for disobeying the order of the Court in that regard can hardly compensate the victim or his heirs and this is why even if a convict undergoes the sentence of imprisonment in default of payment of compensation he still has to pay compensation to the victim or his heirs and in such an eventuality such an amount can still be recovered from him as an arrear of land revenue. A similar intention of the Legislature is manifest from the provisions of section 386, Cr.P.C. Which deal with payment of fine and a sentence of imprisonment in default of payment thereof. The cases of Afimad Ali SiddiqUi v.
Sargodha General Cooperative Bank 'Limited and another (1989 SCM R 824) and Farid Bakhsh v.
Saeed Ahmed and 4 others (1992 SCM R 549) throw sufficient light on the subject and explain the spirit of the relevant legislation on these issues.
6. In view of what has been discussed above it has been clearly felt by this Court that there does not appear to be any justification for keeping Amjad Ehsan detenu confined in jail any more. His continued custody thereat is, therefore, declared to be illegal and improper. He shall be set at liberty forthwith if not required in any .Other case. This petition, therefore, succeeds and the same is disposed of in these terms.
7. Before parting with this order it may, however, be clarified that in view of the provisions of subsection (2) of section 544-A, Cr.P.C. Mst. Ghulam Fatima complainant shall be at liberty to take all permissible steps to get the amount of compensation payable by Amjad Ehsan detenu recovered as an arrear of land revenue.