Putting a human being, the best of Almighty Allah's creations (Al-Qur'an: Sura 95: Verse 4), in an iron cage for the rest of his life for no other reason than his abject poverty is an idea abhorrent to the 'dignity' bestowed upon him by the Creator (Sura 17: Verse 70). When the Holy Qur'an enjoins upon the believers to spend on prisoners, slaves and those in debt and for saving their necks and for lessening of their burdens (Sura 76: Verse 8, Sura 2: Verse 177 and Sura 9: Verse 60) it sends an unmistakable message that what is to be hated is crime and not the criminal and the unfortunate predicament of such a human being is to be visited with compassion and Mercy wherever and however, possible. It is manifestly in this backdrop that the Constitution of the Islamic Republic of Pakistan, 1973 ensures it as a Fundamental Right guaranteed by Article 14 thereof that the dignity of man is inviolable. In the case of In re: Suo Mom Constitutional Petition (1994 SCMR 1028) the Hon'ble Supreme Court of Pakistan had unequivocally declared that even the worst criminal is entitled to his dignity as a man and the crime committed by him does not denude him of such a right which is referable to his belonging to the human race and not to his belonging to the community of criminals.
2. The plight of Abid Hussain petitioner, one such unfortunate human being and citizen, is the subject-matter of Writ Petition No,11242 of 2001 filed through Mr. M.D. Tahir. Advocate. The same learned Advocate has also filed Writ Petition No,6370 of 2002 before this Oourt highlighting the unfortunate predicament of many others who, like Abid Hussain petitioner, are facing the same ordeal and don't even have the means to approach this Court through a proper petition. I have heard both these petitions together as they involve common questions of law and 1 propose to decide them together through the present consolidated judgment.
3. Abid Hussain petitioner was convicted for an offence under section 316 of the Pakistan Penal Code, 1860 (hereinafter referred to as P.P.C.) vide judgment dated 3-5-1994 handed down by the learned Additional Sessions Judge, BhalwaL District. Sargodha and was sentenced to imprisonment for life and to pay a sum of Rs,3,50,000 to the heirs of the victim by way of Diyat. The said petitioner, according to the learned counsel for the petitioner, has already served out his substantive, sentence of imprisonment but he is presently being detained at the Central Jail, Mianwali only on account of his failure to pay the requisite amount of Diyat. According to the learned counsel for the petitioner the said petitioner has absolutely no means to pay the requisite amount of Diyat and so far none of his relatives, friends or others have come forward to pay the same on his behalf and, thus, as per the present interpretation of the provisions of section 331, P.P.C., Abid Hussain petitioner is to languish in jail for the rest of his life till he dies or till somebody pays the amount of Diyat on his behalf. Mr. M.D. Tahir, Advocate has also 'referred to the plight of one Feroze son of Sarja who was convicted for an offence under section 306, P.P.C. Vide judgment dated 18-2-1991 rendered by the learned Sessions Judge, Sargodha and was sentenced under section 308, P'.P.C. To rigorous imprisonment for ten years and to pay a sum of Rs,2,75,000 to the heir of the victim by way of Diyat.
The said convict has also already served out his substantive sentence of imprisonment and presently he is being detained, in the Central Jail, Mianwali only on account of non-payment of the amount of Diyat According to Mr. M.D. Tahir, Advocate the said convict, on account of his extreme poverty, has no means to pay the amount of Diyat and nobody has so far volunteered to pay the same on his behalf. A reference in this regard has been made to the documents appended with Writ Petition No,6370 of 2002 as Annexures B and C to point out that even the father of that convict is a destitute who is receiving assistance from the local Zakat and Ushr Committee for his own survival and sustenance. Mr. M.D. Tahir, Advocate had informed this Court at the initial stage of hearing of these petitions that his own personal visits to various jails in the Province of the Punjab had revealed that scores of other convicts were also languishing in various jails of the Province whose tales of woes in this regard stemming from their extreme poverty were no different from those of the above mentioned Abid Hussain petitioner and Feroze son-of Sarja.
4. On 16-4-2002 this Court had admitted Writ Petition No,6370 of 2002 to regular hearing and it was observed in the order passed on that date that the following points, inter alia, required consideration: "(i) Whether a person can be imprisoned for more period than is prescribed for an offence? (ii) Whether such a. Person is also to be punished for his poverty besides the offence he has committed?
(iii) Whether there is any way or any legal dispensation whereby payment can be made for such prisoners from any fund for securing their release?
(iv) Whether the relevant law in this regard which requires such a prisoner to be kept in jail for an indefinite period is in consonance with Islamic dispensation of justice?
(v) Whether the law- in this regard is unreasonable and oppressive and the same needs to be struck down or suitably amended?
(vi) Whether the Zakat or Bait-ul-Mal Funds can be utilized for the benefit of such prisoners who are-otherwise adjudged criminals?" Through the same order the office of this Court was directed to issue notice to the learned Attorney-General for Pakistan and the learned Advocate-General, Punjab and Dr. Syed Riaz-ul- Hassan Gilani, Syed Afzal Haider, Syed Shabbar Raza Rizvi and Mr. Umar Ata Bandial, Advocates were requested to assist the Court as amicus curiae.
5. On the subsequent dates of hearing of these petitions I had the privilege of hearing at length not only the learned counsel for the petitioner but also the learned Deputy Attorney-General, the learned Law Officer appearing on behalf of the learned Advocate-General, Punjab and the learned counsel appearing as amicus curiae who assisted the Court very ably. A report Was also submitted before the Court by the Inspector-General of Prisons, Punjab pointing out that as on 23-5-2002 as many as 145 prisoners were lodged in different jails in the Province of the Punjab who have already served out their substantive sentences of imprisonment and are being detained in jail only on account of non-payment of Diyat, Arsh or Daman. Likewise 64 prisoners were in captivity merely because they have so far failed to pay fines imposed upon them by different Courts although they have already served out their substantive sentences of imprisonment. The report further showed that for keeping one prisoner in jail and average sum of Rs,15.51 is spent on his diet and more on his maintenance by the Government per day.
6. In support of these petitions it has passionately been argued by Mr.M.D. Tahir, Advocate that poverty of a citizen is not per se an offence and if a convict has been punished, alongwith a sentence of imprisonment, to pay a sum of money to the victim or his heirs then, after serving out his entire substantive sentence of imprisonment, he cannot be detained in jail for an indefinite period or for the rest of his life if he is incapable of paying the requisite amount of money. He has maintained that a convict's poverty is a circumstance beyond his personal control and in such a situation the State, through the Zakat Fund or Bait-ul-Mal, should pay such an amount on behalf of the convict. According to him such an approach shall not only satisfy the victim's or his heirs' claim in that regard but shall also bring about peace and harmony in the society achievement of which is a basic duty of the State.
7. Kh. Saeed-uz-Zafar, the learned Deputy Attorney-General, has maintained that Diyat, Arsh and Daman are more of compensation than punishment and the provisions of sections 331, 337-X and 337-Y, P.P.C. Are to be read in conjunction with those of section 544-A of the Code of Criminal Procedure, 1898 (hereinafter referred to as Cr.P.C.) which deals with an identical situation, i,e, payment of compensation to the victim or his heirs. According to him the word "may" mentioned in sections 331(2), 337-X(2) and 337-Y(2), P.P.C. And the words "unless for reasons to be recorded in writing it otherwise directs" appearing in section 544-A(1), Cr.P.C. And "may further order" figuring in section 544-A(2), Cr.P.C. Unmistakably reflect the intention of the Legislature that incarceration of a convict upon his failure or inability to pay such compensation to the victim or his heirs is not mandatory. He has categorically maintained that, while "reading down" the provisions of sections 331, 337-X and 337-Y, P.P.C. So as to harmonize them with the provisions of section 544-A, Cr.P.C., it should be understood and interpreted that failure or inability of a convict to pay the requisite compensation does not have to necessarily entail his incarceration till he pays up the said amount and in an appropriate case a Court, after holding an inquiry in that regard, may refuse to pass an order regarding detention of such a convict in jail till recovery of such amount from him and, in such a situation, the Court may order that such an amount would be recoverable from the convict as arrears of land revenue. The learned Deputy Attorney-General has gone on to maintain that detention of a citizen in jail for an indefinite period only because of paucity of funds available with him to pay up a financial liability is indeed debasing of human dignity and it militates against the provisions of Article 14 of the Constitution. According to him even under the civil law a person incurring a financial liability is to be detained for the purposes of recovery only where he is capable of meeting that liability and not otherwise. He has lastly maintained that, as is evident from the report submitted by the Inspector-General of Prisons, Punjab, the State is already spending a lot of money on boarding and lodging of the prisoners and there may be cases where the State may ultimately end up spending more on keeping in prisoner in jail than paying up such prisoner's liability towards the victim or his heirs. The learned Deputy Attorney-General has referred to the case of Abdul Rahim and 2 others v. Messrs United Bank Limited (PLD 1997 Karachi 62) to highlight that while interpreting a law a Court is to avoid a result which is oppressive. A reference has also been made by him to the provisions of sections 51 and 57 of the Code of Civil Procedure, 1908 (hereinafter referred to as C.P.C.) and to the case of Syed Shaffai Hussain v. Kamran Khokhar (2000 MLD 801) to point out that in civil cases detention of a defaulter is to be ordered only where certain conditions are met and where he has the means to pay up his liability. The case of Mst. Shirin Masood v. Malik Nasim Hassan, Judge Family Court and others (1985 CLC 2758) and Major Feroze Din Khan and others v. Sh. Muhammad Amin (PLD 1967 Lah. 966) have also been referred to by him in this context. He has also brought it to the notice of the Court that in the case of Muhammad Afzal alias Seema v. The State (1999 SCMR 2652) the Hon'ble Supreme Court of Pakistan has already held that before passing an order against a minor convict regarding payment of Diyat the trial Court has to hold an inquiry regarding his capability or financial capacity to pay Diyat. He has also informed the Court that the order passed by this Court on 25-5-2001 in Criminal Miscellaneous No,96-M of 2001 in Criminal Appeal No,737 of 1996 has already opened a door for payment of Diyat from the Bait-ul-Mal for the benefit of a convict who is destitute and incapable of meeting his liability in that regard on his own. A reference has also been made by him to the case of Gulab v.
The State (1997 PCr.LJ 193) wherein such a convict had been admitted to bail so as to facilitate him to arrange for funds to pay Diyat. The learned Deputy Attorney-General has lastly referred to the case of Muhammad Kamal v. The State (1998 PCr.LJ 1781) to point out that a recommendation has already been made by the Hon'ble Peshawar High Court to the Federal Ministry of Law to remove the anomalies and confusion in all these regards.
8. Mr. Ishfaq Ahmad Chaudhry, Advocate, the learned Law Officer appearing on behalf of the learned Advocate-General, Punjab, has by and large taken the same stand as taken by the learned Deputy Attorney-General. He has, however, maintained that Diyat, Arsh or Daman are not debts but are punishments and the provisions of section 544-A, Cr.P.C. Appear to be more humane and appropriate for exaction of such a punishment than the provisions of sections 331, 337-X and 337-Y, P.P.C. He has also drawn this Court's attention to the cases of Muhammad Zafar v. The State (2001 YLR 533) and Allah Ditta v. The State (PLD 2002 Lahore 406) wherein a direction had been issued by this Court that the relevant compensation to the victims or their heirs should be paid from the Bait-ul-Mal for the benefit of the destitute convicts in those cases and also to the case of Fazal Hussain v. The State (2002 PCr.LJ 1256) wherein on the basis of a compromise between the convict and the major heirs of the victim the share of Diyat payable by the convict to the minor heirs of the victim had been waived by this Court. Mr. Ishfaq Ahmad Chaudhry has, however, maintained with respect that the orders passed in those cases had not, been proceeded by any meaningful discussion about legal permissibility or otherwise of adoption of such a course by the Court.
9. Syed Shabbar Raza Rizvi, Advocate appearing as amicus curiae, has addressed elaborated arguments from diverse angles including legal, Islamic and Constitutional. On the legal plane he has maintained that Diyat, Arsh or Daman are not just compensation to the victim or his heirs but are substitute punishment for Qisas as is manifest from the provisions of section 308, P.P.C.
According to him the provisions of sections 331 and 337-X, P.P.C. Contemplate a grace period of three years to be allowed to a convict to pay up his liability in that regard failing which he is either to be kept in jail or he is to be admitted to bail till he pays up or dies in which case the requisite amount is to be recovered from his estate. He has, with reference to the provisions of section 338-F, P.P.C., pointed out that this matter is to be applied and interpreted by this Court while being guided by the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah.
10. While dilating upon the Injunctions of Islam in this regard Mr. Rizvi has extensively referred to various sources of Islamic law, including the Holy Qur'an, the Sunnah of the Holy Prophet (p.b.u.h.) and writings of various scholars to maintain as follows:- .
(a) The object of Qisas and Diyat laws is to satisfy the victim or his heirs so as to bring about peace in the society by quenching their thirst of vengeance and, in the absence of Qisas, the victim or his heirs are to be compensated in financial terms through payment of Diyat.
(b) If the convict is sourceless and his relatives also have no means to pay the liability on his behalf then Diyat can be exacted from the Aqila (the convict's clan or tribe) so that the blood of the victim does not go waste and vengeance of the heirs of the victim is satisfied through financial compensation. With the growing irrelevance of clans and tribes the State is the modern manifestation of Aqila.
While making these submissions the learned amicus curiae has extensively quoted from the following books:- "Tefheem-ul-Ouran: Volume I, Surah Al-Baqara, Verse 177 by Maulana Abul A'la Maudoodi.
Hadood, Oisas, Divat wa Tazeerat: Pages 43, 198, 373 and 400 by Dr. Tanzil-ur-Rehman, published by Qanuni Kutab Khana, Katcheri Road, Lahore.
Islami Oawaneen-e-Oisas wa Diva: Pages 16, 87 and 125 by Min Masood Ahmad Bhutta, published in 1991 by Kashmir Law Times, Temple Road, Lahore.
Islam Ka Fauidari Oanoon: Volume I, pages 157, 162 and 257 by Abdul Qadir Auda Shaheed, published in 1979 and 2000 by the Islamic Publications Limited, Shah Alam Market, Lahore.
Tadabar-i-Duran: Volume 1, page 431 by Amin Ahsan Islahi, published by Faran Foundation, Lahore.
Mishkat-ul-Masahib: Volume II, page 1163 English translation by Alhaj Maulana Fazal-ul-Quran, published by the Law Publishing Company, Katcheri Road, Lahore.
Oisas our Diva: pages 155, 156, 157 and 248 by Ch. Altaf Hussian, published in 1981 by Sang-e-Meel Publications, Lahore.
Bada-i-al-Sana: Volume VII, pages 561, 563 and 564, translated by Prof. Khan Muhammad Chawla, published by Markaz-e-Tehqeeq, Research Cell, Diyal Singh Trust Library, Nisbat Road, Lahore.
11. For his argument based upon the Constitution Mr. Rizvi has referred to the provisions of Articles 3, 37, 38 and 156 of the Constitution of the Islamic Republic of Pakistan, 1973 as well as to the speech delivered by then Law Minister Mr. Abdul Hafeez Prizada which presenting the Draft Constitution before the National Assembly. Mr. Rizvi has maintained that the Constitution envisages a Welfare State; Article 3 visualizes elimination of all forms of exploitation; Article 37(a) provides that the State shall promote the economic interests of the backward classes; Article 37(d) requires the State to ensure inexpensive and expeditious justice; Article 38(a) mandates that the State shall secure the well-being of the people; and Article 38(d) contemplates that the State shall provide basic necessities of life, such as food, clothing, housing, education and medical relief for all such citizens as are permanently or temporarily unable to earn their livelihood on account of infirmity, sickness or unemployment. Keeping in view these Constitutional requirements, according to Mr. Rizvi, the convicts of the type under discussion in the present petitions do qualify for financial assistance by the State which is under a Constitutional obligation to reach out to such citizens for amelioration of their financial handicap which is not of their own making.
12. Mr. Rizvi has further argued that some Constitutional and Fundamental Rights of the prisoners under discussion can also be pressed into service by this Court and appropriate directions can be issued by the Court to the relevant functionaries of the State for enforcement of such rights so as to provide the necessary relief to such prisoner. In this context he has referred to Articles 4, 9, 14 and 25 of the Constitution. Article 4 deals with an inalienable right to liberty in accordance with the law, Article 9 provides protection against unlawful deprivation of life or liberty, Article 14 pertains to inviolability of dignity of man and Article 25 ensures equality before law and equal protection of law. The learned counsel has, in this regard, referred to page 812 of the book titled Constitutional Foundations of Pakistan authored by Dr. Safdar Mahmood, published by the Jang Publishers, Lahore in December, 1989 and to the cases of Miss Benazir Bhutto v. Federation of Pakistan and another (PLD 1988 SC 416 at page 490), Haji Nizam Khan v. Additional District Judge, Lyallpur and others (PLD 1976 Lahore 930 at page 979), Mst. Fazal Jan v. Roshan Din and 2 others (PLD 1990 SC 661), Mian Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993 SC 473 at page 557), Zohra and 5 others v. The Government of Sindh, Health Department through its Secretary, Sindh Secretariat, Karachi and another (PLD 1996 Karachi 1), The Employees of the Pakistan Law Commission, Islamabad v. Ministry of Works and 2 others (1994 SCMR 1548), Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another (PLD 1989 Karathi 404 at page 442), Mumtaz Ali Bhutto and another v. The Deputy Martial Law Administrator, Sector 1, Karachi and 2 others (PLD 1979 Karachi 307 at page 357), Federation of Pakistan and another v. Malik Ghulam Mustafa Khar (PLD 1989 SC 26 at page 53), In re: Juvenile Jail, Landhi, Karachi (Suo motu notice) (1990 PCr.LJ 1231) and Sh. Liaquat Hussain and others v.
Federation of Pakistan through Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others (PLD 1999 SC 504).
13. Mr. Umar Ata Bandial, Advocate, also appearing as amicus curiae, has maintained that Diyat, Arsh or Daman, in addition to the sentence passed against a culprit for the offence committed by him, are basically different forms of compensation to the victim or his heirs which, in terms of the provisions of sections 331, 337-X and 337-Y, P.P.C., is recoverable from the convict or from his estate in case he dies before paying the same. Such compensation, according to him, is meant primarily for making up for a loss caused by the convict and, therefore, it can also be termed as a 'debt' for the recovery of which the provisions of the civil law can be usefully pressed into service. He has maintained that in the civil law a loss is to be compensated for by the wrongdoer either in contractual matters or in respect of torts and in both of these spheres such compensation is awarded in the shape of damages which, if not recovered, assume the status of a debt. He has further maintained that a debt is either owed to a private creditor or to the State and on the civil side the law is fairly developed as to how such a debt is to be recovered through execution of a decree. While advancing this submission Mr. Bandial has categorically maintained that before detaining a person in execution of a decree for recovery of a debt an inquiry has to be conducted regarding his capacity to pay back such debt and in any case his detention for the purposes of recovery of such debt cannot be for an indefinite period and certainly not for the rest of his life. In this regard he has referred to the following legislative enactments and provisions:--
(i) Sections 36 to 74, C.P.C. And particularly section 55 thereof dealing with arrest and detention of the judgment-debtor according to which a judgment-debtor may be detained in prison for a maximum period of one year whereafter he cannot be detained any further but his liability to pay back the debt remains intact;
(ii) Order XXI, rules 37 to 41, C:P.C. Requiring holding of an inquiry into the judgment-debtor's capacity to pay back the debt and providing the judgment-debtor an opportunity to satisfy the Court that he cannot pay back the debt and, therefore, he may not be detained;
(iii) Section 48 in Chapter IX of the Sales Tax Act, 1990;
(iv) Section 202 of the Customs Act, 1969;
(v) Sections 80 and 82 in Chapter VIII of the Land Revenue Act, 1967; and
(vi) The Provincial Insolvency Act, 1920.
' With reference to the provisions of section 82 of the Land Revenue Act, 1967 Mr. Bandial has maintained that after exhaustion of the period of imprisonment provided in the relevant provisions of the said Act there is no provision for the defaulter's re-arrest for an indefinite period till he pays up his liability. In this context he has referred to the case of Muhammad Riaz v. District Collector, Okara (PLD 1997 Lahore 680) wherein it has been held by this Court that the provisions of the Land Revenue Act, 1967 are to be strictly construed in this regard. He has also extensively referred to the provisions of sections 6, 7, 27, 28, 31, 41 and 44 of the Provincial Insolvency Act, 1920 to point out that imprisonment of a person in execution of a decree of any Court for payment of money is by itself an act of insolvency, upon such person's petition for adjudication of his insolvency a Court can pass an order of adjudication whereafter the whole property of such person may vest in the Court, consequent upon an order of adjudication of insolvency the Court, after declaring such person an undischarged insolvent, may grant such person protection against arrest or detention subject to imposition of certain conditions and upon an application for discharge submitted by him the Court may discharge him upon condition qua his future earnings. According to the learned amicus curiae such person cannot be discharged as far as debts owned to the Government are concerned but as regards all other debts he can be released from all of them by the Court.
Drawing an analogy from the provisions of the Provincial Insolvency Act, 1920 Mr. Bandial has argued that an imprisoned convict incapable of discharging his financial liability towards his victim or his heirs may apply before the trial Court for his discharge from his liability in that regard.
14. Finally, with reference to the provisions of section 544-A, Cr.P.C., Mr. Bandial has argued that a clear indication already exists on the statute book that in case of failure of a convict to pay the required compensation to the victim or his heirs he can be imprisoned for a maximum period of six months and thereafter the amount of compensation is to be recovered from him by way of arrears of land revenue. He has, thus, agreed with Kh. Saeeduz-Zafar, the learned Deputy Attorney-General, that the ambiguous and obscure provisions of sections 331, 337-X and 337-Y, P.P.C. Are to be read down so as to harmonize the same with the clear and unambiguous provisions of section 544-A, Cr.P.C. According to him such reading down of the said provisions is to be in accord with the well- established principles of interpretation of statutes.
15. Dr. Syed Riaz-ul-Hassan Gilani, Advocate, while appearing as an amicus curiae, submitted at the outset that the law relating to Qisas and Diyat had been introduced in and injected into our pre-existing criminal law and legal system without any serious debate or deliberation as the same had been done hurriedly under the compulsions of the judgment handed by the Hon'ble Shariat Appellate Bench of the Supreme Court of Pakistan in the case of Federation of Pakistan v. Gul Hassan (PLD 1989 SC 633). According to Dr. Gilani many of the amendments introduced in the relevant law in this regard need to be reconsidered, reviewed and suitably amended so as to make this new dispensation rational and practicable. For instance he has pointed out that in Islamic Jurisprudence Diyat is not a punishment but only compensation to the heirs of the victim and, thus, it has wrongly been introduced in the law as a punishment. He has added that the concept of Aqila has been ignored in the law in this regard which concept was necessary to ensure that in case of inability of the culprit to pay Diyat the heirs of the victim still receive the requisite compensation. He has also maintained that before passing an order regarding payment of Diyat it is incumbent upon a trial Court to hold an inquiry to determine whether the convict is capable of paying Diyat or not.
In this context he has referred to the case of Muhammad Afzal alias Seema v. The State (1999 SCMR 2657) wherein the Hon'ble Supreme Court has, with reference to the provisions of section 308, P.P.C., held that such an inquiry has to be conducted in case of a minor convict. Dr.Gilani has taken a categorical stand that the provisions of sections 331, 337-X and 337-Y, P.P.C., as they stand at present, are unreasonable, obscure and oppressive. Besides militating against the Injunctions of Islam. With reference to the case of The Bank of Punjab v. Administrator-General, Central Zakat Administration, Islamabad and others (PLD 1994 Lahore 207) he has argued that while interpreting a legal provision this Court can read words in a statute which are otherwise not there and this exercise can be undertaken in order to render the relevant statute more reasonable. Dr. Gilani has referred to Sura Al-Baqara, Verse 178 in the Holy Qur'an to maintain that Diyat is liable to be paid to the heirs of the victim on the basis of a compromise between the parties and such a compromise has to be arrived at on the basis of socially approved terms and in a fair and reasonable manner and it is left open in the said verse of the Holy Qur'an as to who shall pay Diyat to the heirs of the victim after such a compromise. According to Dr. Gilani Almighty Allah has himself kept this aspect open so that in an appropriate case where the culprit is incapable of making the requisite payment himself there making of such a payment on behalf of the culprit by somebody else may be possible. He has also referred to page 559 of Bada-ial-Sana, Volume VII (translated by Prof. Khan Muhammad Chawla and published by Markaz-e-Tahqeeq, Research Cell, Diyal Singh Trust Library, Nisbet Road, Lahore) to contend that if a convict is unable to pay Diyat then the same ought to be paid on his behalf by the Aqila (his clan or tribe) and if he has no Aqila then the State is to make the requisite payment on his behalf to the heirs of the victim. Dilating upon the matter jurisprudentially Dr. Gilani has maintained that establishment of proper institutions is a prerequisite as well as a precondition for proper and effective application of the Islamic system of dispensation of criminal justice based upon Qisas and Diyat. In this regard he has read out an extract from page 205 of a book titled The Islamic Criminal Justice (published in 1979 by the Oceana Publication Incorporation, New York, U.S.A.) wherein it has been observed that in the Islamic Sharia the purpose is not retaliatory Qisas but the real purpose is to develop a system of criminal justice which is institutional in response and for achieving the said purpose institutions are to be established and officials are to be trained. Advancing the same theme Dr. Gilani has referred to Sura Tauba, Verse 60 in the Holy Qur'an and has maintained that Diyat can be paid from the Zakat Fund or Bait-ul- Mal to the heirs of a victim on behalf of a destitute convict as such an exercise would be in consonance with the required institutional response to the issue.
16. Syed Afzal Haider, Advocate, a member of the Council of Islamic Ideology, has also assisted this Court as amicus curiae and has addressed elaborate arguments. Like Dr. Gilani he has also maintained at the outset that the law relating to Qisas and Diyat had been introduced in our criminal legal system without proper debate or deliberations and that is why it is replete with anomalies, contradictions and sometimes downright obscurities. According to him it is now for the superior Courts of the country to take appropriate remedial action in all these regards through the means of judicial interpretation or, where needed, through positive activism. He has, however, pointed out that by virtue of the provisions of section 338-F, P.P.C. In the matter of interpretation and application of the law relating to Qisas and Diyat this Court is to be guided by the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah. In this context he has also referred to the provisions of section 4(a) of the Enforcement of Shariat Act, 1991 according to which all the conflicts or doubts in the provisions of all the statutes are to be resolved in accordance with the Injunctions of Islam.
17. While extensively quoting from the Holy Qur'an Syed Afzal Haider has pointed out that Almighty Allah has bestowed 'dignity' upon mankind (Sura 17 : Verse 70) and has declared mankind to be the best of his creations (Sura 95 : Verse 4). Highlighting Almighty Allah's and his messengers' mercy for human beings, especially for those in captivity or debt, he has referred to the following passages from the Holy Qur'an:-- Sura 76 : Verse 8: "Out of love for God they make provision for the poor, the orphan and prisoner."
Sura 2 : Verse 177: One of the purposes of sending the prophets is to "give away wealth for emancipation of the captive."
Sura 6 : Verse 54: "God has made it obligatory upon himself to be merciful."
Sura 9 : Verse 60: It is dMnely ordained to give alms for "gharmin" (those who are in debt).
Sura 70 : Verse 24: Those who deserve or are in need have a "known right" to be helped.
Sura 56 : Verse 73: Divine command to spend on the needy. Sura 3 : Verse 17: Divine command to spend on those in need. He has also pointed out that Almighty Allah has repeatedly proclaimed that "Allah does not impose upon any soul a duty/burden but to the extent of his ability" (Sura 2 : Verse 233, Sura 2 : Verse 286, Sura 4 : Verse 83, Sura 6 : Verse 152, Sura 7 : Verse 42, Sura 23 : Verse 62 and Sura 65 : Verse 7). This aspect of the matter, according to him, has also been reflected in the Constitution of the Islamic Republic of Pakistan, 1973 through Article 3 thereof which provides for elimination of all forms of exploitation and enunciates the principle "from each according to his ability". Thus, according to Syed Afzal Haider, no person can be placed under a burden that he cannot discharge and likewise no convict can be required to discharge a liability that he is incapable of meeting.
While developing this argument he has argued that according to the Holy Qur'an Almighty Allah creates comfort, ease, facility and convenience for human beings (Sura 92 : Verse 7, Sura 2 : Verse 185 and Sura 94 : Verses 5 and 6) and, therefore, while interpreting and applying a law a beneficial interpretation of the same is to be advanced nd that approach is to be adopted which creates facility and convenience for a hard-pressed human being. While dilating upon the same theme Syed Afzal Hiader has also alluded to the Sunnah of the Holy Prophet (p.b.u.h.) and has referred to the following:-- Ideal Muslim: Page 262 by Dr. Muhammad Ali-al-Hashmi, published by Islamic Publishing House, Riadh, Saudi Arabia. 'Teach and make things easy. Do not make them difficult.' (Sahihul-Bukhari).
Sahih-ul-Bukhari: Hadith No,3560 'Teach and make things easy. Do not make them difficult.'
Sahih-ul-Bukhari: Hadith No,2165 'Teach and make things easy. Do not make them difficult.'
Al-Mawafiqat: Page 15 by Imam Abu Ishaque Ibrahim bin Musa, published by Markaz-e-Tehqeeq, Research Cell, Diyal Singh Trust Library, Nisbat Road, Lahore. (There are five fundamentals guaranteed by Sharia: Din, Nafs, Nasl, Mal and Aql). Begum Rashida Patel v. Federation of Pakistan (PLD 1989 FSC 95 at page 115) (There are five, fundamentals guaranteed by "Sharia Din, Nafs, Nasl, Mal and Aql).
18. Syed Afzal Haider has categorically and unmincingly maintained that in an Islamic Society it is duty of the State to satisfy the needs of those subjects who are in genuine need of help and if such help is required in the shape of financial assistance then the same can be provided from the Bait- ul-Mal. In this regard he has made a reference to the following:- Sahih-ul-Bukhari: Hadith No,4781 (If somebody dies and leaves a debt then I shall bear the responsibility for its repayment).
Sahih-ul-Bukhari: Hadith No,2298 (If somebody dies and leaves a debt then I shall bear the responsibility for its repayment).
Sunan Abu Daud: Second Volume, Chapter 513, Hadith No,1184, page 465 (Duty of the State to satisfy the needs of the destitute subjects).
Mishqat: Hadith No,1733, page 386 ('Needy' is a person who is in debt).
Islam Ka Fauldari Oanoon: Volume 2, page 61 by Abdul Qadir Auda Shaheed, published by the Islamic Publications Limited, Shah Alam Markat, Lahore (If a convict and his family are not in a proper financial position to pay Diyat then Bait-ul-Mal should pay the same).
Fiqah Hazrat Umar: Page 317 by Dr. Muhammad Rawas Kalaji, published by Adara-i-Muarif-i-Islami, Multan Road, Lahore (Caliph Umar used to release an indebted person, if he could satisfy that he could not repay the debt).
Qisas-o-Divat: pages 60 and 61, published in 1990 by Adara-eTehqeeq-e-Islami, Islamabad.
(Hadith that I shall pay Diyat for somebody who cannot pay it on his own).
Hudood, Oisas, Divat, Tazirat: pages 203 to 207 by Dr. Tanzeel-urRehman, published by Qanooni Kutab Khana, Katcheri Road, Lahore. (if a convict cannot pay Diyat then the same is to be paid by the Aqila).
Fiqah Hazrat Abu Bakar: page 132 by Dr. Muhammad Rawas Kalaji, published by Adara-e-Muarif-e- Islami, Mansoora, Lahore. (A destitute who cannot repay debt cannot be imprisoned for such non- payment).
Al-Fiqah: (Fiqah-e-Jafaria), Kitab-ul-Diyat by Muhammad alHussaini-Al-Sherazi (If a convict cannot pay Diyat then the same is to be paid by the Bait-ul-Mal).
Tehreer-ul-Wasila: Volume No,4, page 437 by Imam Khomeni, published in 1994 by Muassisa Tanzeem-o-Nashr Asar-i-Imam Khomeni, Amoor Bain-ul-Milal. (A destitute convict's Diyat can be paid through the Bait-ul-Mal).
Shara-i-al-Islam fi Masail-ul-Halal-i-wal-Haram: by Abul Qasim Najmuddin Jafar bin Hassan.
(Diyat can be paid through the Bait-ulMal on behalf a convict incapable of paying the same).
Sahih-Muslim: Volume 2, Hadith No,137 published by Sheikh Ghulam Ali & Sons. (Bait-ul-Mal to pay Diyat for the benefit of a convict if he cannot pay the same himself).
Sahih-ul-Bukhari: Hadith No,6898 (Bait-ul-Mal to pay Diyat for a destitute convict).
Al-Faroa Minal Kafi: page 360 by Al-Kulaini Al-Razi, published by Dar-ul-Kutab-ul-Islamia, Tehran, Iran. (If a convict is incapable of paying Diyat to the heirs of the victim then the same is to be paid by the Bait-ul-Mal).
Sahih Muslim Sharif: pages 295, 296 and 297 (Diyat paid by the Holy Prophet (p.b.u.h.) for the benefit of a convict who was incapable of paying the same on his own).
Mishqat-ul-Masahib: Volume 3, page 169 published by Adara Ahya-us-Sunnah, Girja Ghar, Gujranwala and Urdu Bazar, Lahore (No-punishment awarded where the culprit was a destitute).
The Meielle: pages 5 to 7, Principles Nos.17, 18, 20, 21, 30, 31 and 32 published by PLD Publishers, Lahore.
19. Adverting to the Constitutional and legal dispensation in Pakistan Syed Afzal Haider has maintained that after entering into a social contract in the shape of the Constitution of the Islamic Republic of Pakistan, 1973 the people of Pakistan have shunned and forsaken the old concepts of clans and tribes and have forged themselves into one community while putting the State in charge of their affairs. He has, thus, argued that if the State is now responsible for prosecuting an offender who commits a crime against citizens then the State must also be held responsible for payment of compensation to a victim of a crime if the offender citizen is incapable of doing the same.
According to him the State collects taxes from the citizens in order to spend the same for the benefit and welfare of the citizens and the fruits of this welfare should be available both to the aggrieved as well as to the needy. Syed Afzal Haider has also argued that the State is the modern manifestation of the Islamic concept of Aqila. While referring to Article 172 of the Constitution and the concept of escheat contained therein he has maintained that if the State takes over and manages the property which is ownerless then the affairs of the impoverished and sourceless citizens should also be taken over and looked after by the State. In this context he has also referred to the provisions of Order XXXIII, C.P.C. To point out that a destitute is taken care of by the State by treating him as a pauper and facilitating him in his litigation in forma pauperis. He has gone on to maintain that in our legal system a citizen's liability depends upon his legal capacity and, according to him, a sourceless prisoner incapable of discharging his financial liability is bereft of any legal capacity and, thus, such a liability becomes unenforceable against him. By way of instances of extinction of liability or enforceability he has referred to the provisions of sections 306 and 307, P.P.C. Which provide that Qisas shall not be liable or enforceable qua a convict in certain situations. He has further maintained thai if the State had failed to provide sufficient protection to the victim then the blame for the harm to that victim should also be shared by the State which should, in case of inability of the culprit to pay compensation to the victim or his heirs, itself contribute towards payment of such compensation. According, to him such an action of the State is going to promote peace in the society which is one of the primary responsibilities of the State. He has, however, gone on to maintain that if the State pays the requisite compensation on behalf of the culprit on account of his financial inability in that regard then after the said culprit's release the State should make him undergo a compulsory service on a project of public welfare so that he is gainfully employed therein and, thus, the amount of money spent by the State for his benefit in the matter of payment of compensation is ultimately recovered from him by the State.
20. Syed Afzal Haider has also alluded to the juristic division of laws in Islam between Wajib (obligatory), Mandoob (recommendatory), Mubah (permissible or indifferent), Makrooh (disapproved and Haram (forbidden). According to him payment of Diyat by the State to the victim's heirs on behalf of a destitute convict is not expressly forbidden or disapproved by the Holy Qur'an and Sunnah and, therefore, the same would fall in the category of Mubah (permissible or indifferent) and this Court can comfortably adopt a beneficial interpretation in this regard. He has lastly maintained that it is of extreme indignity to humanity if a human being is deprived of his liberty for an indefinite period merely because, on account of his very poor financial condition, he cannot, despite his willingness, buy his liberty by discharging a financial liability and that an interpretation by this Court which ensures to the benefit of such an unfortunate human being would be in consonance with the Islamic concepts of social justice.
21. I must confess that after hearing the learned counsel for the parties and the learned amicus curiae at great length and after attending to the voluminous supporting material and the case-law referred to by them and also after carefully alluding to the relevant statutory provisions which call for interpretation in the present petitions I had many a sleepless night while pondering and brooding over the diverse issues involved in these petitions. At different stages of the hearing of these petitions I had felt myself torn between images of the culprits mercilessly inflicting injuries on the persons of their innocent victims and the resulting pain and anguish suffered by those victims and images of those very culprits now helplessly rotting in iron cages after serving out their substantive sentences of imprisonment merely because of their abject poverty and hoping against hope that some day the society may look upon their unfortunate predicament with mercy and compassion. Another image appearing in my mind was that of a onetime oppressor or aggressor who, by undergoing and serving out the entire sentence of imprisonment passed against him for the crime committed by him, has already substantially cleansed himself of the relevant crime and he may now be a victim himself, a victim of his own unfortunate financial circumstances. All these images would have had very little relevance if the relevant statutory provisions had been clearly and happily worded because in that case the job of this Court would have been much easier, i,e, to decide according to the express provisions of the relevant statute. However, unfortunately, the relevant statutory provisions calling for interpretation in these petitions present nothing but a nightmare of interpretation and that is why all the other aspects relevant to these matters have to be kept in view while trying to come out with an interpretation which makes some sense of these provisions, a sense which is not only reasonable and acceptable but also a sense which fits into the remaining body of the laws already available in the field on the subject. I must also admit that it was mainly by adhering to the requirements of the provisions of section 338-F, P.P.C. Mandating interpretation and application of these laws in accordance with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah that all the clouds of doubt in my mind have simply vanished and this has given me the confidence to go ahead and decide these petitions in the manner that I propose to do in the following paragraphs. The guiding Islamic requirement that I have decided to follow herein is reaching out to those in dire need and debt and to visit the unfortunate predicament of such persons with mercy and compassion rather than vengeance, cruelty and perversity.
22. The relevant statutory provisions around which the issues involved in the present petitions revolve are reproduced here for facility of reference: Section 299(b), P.P.C.
"Arsh" means the compensation specified in this Chapter to be paid to the victim or his heirs under this Chapter.
Section 299(d), P.P.C.
"Daman" means the compensation determined by the Court to be paid by the offender to the victim for causing hurt not liable to Arsh."
Section 299(e), P. P. C.
"Diyat" means the compensation specified in section 323 payable to the heirs of the victim."
Section 331, P.P.C.
"Payment of diyat.--(1) The Diyat shall be made payable in lump sum or in instalments spread over a period of three years from the date of the final judgment.
42) Where a convict fails to pay Diyat or any part thereof within the period specified in subsection (1), the convict may be kept in jail and dealt with in the same manner as if sentenced to. Simple imprisonment until the Diyat is paid in full or may be released on bail if he furnishes security equivalent to the amount of Diyat to the satisfaction of the Court.
(3) Where a convict dies before the payment of Diyat or any part thereof, it shall be recovered from his estate."
Section 337-X, P.P.C.
"Payment of Arsh.--(1) The Arsh may be made payable in lump sum or in instalments spread over a period of three years from the date of the final judgment.
(2) Where a convict fails to pay Arsh or any part thereof within the period specified in subsection (1), the convict may be kept in jail and dealt with in the same manner as if sentenced to simple imprisonment until Arsh is paid in full or may be released on bail if he furnishes security equal to the amount of Arsh to the satisfaction of the Court.
(3) Where a convict dies before the payment of Arsh or any part thereof, it shall be recovered from his estate."
Section 337-Y, P.P.C.
"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.
(2) In case of non-payment of Daman, it shall be recovered from the convict and until Daman is paid in full to the extent of hs liability, the convict may be kept in jail and dealt with in the same manner as if sentenced to simple imprisonment or may be released on bail if he furnishes security equal to the amount of Daman to the satisfaction of the Court."
Section 338-F, P.P.C.
"Interpretation.--In the interpretation and application of the provisions of this Chapter, and in respect of matters ancillary or akin thereto, the Court shall be guided by the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah."
Section 338-G, P.P.C.
"Rules.--The Government may, in consultation with the Council of Islamic Ideology, by notification in the official Gazette, make such rules as it may consider necessary for carrying out the purposes of this Chapter."
Section 544-A, Cr.P.C.
"Compensation to the heirs of the person killed. Etc.--(1) Whenever a person is convicted of an offence in the commission Thereof 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, of 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 not 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), (2-C) 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."
23. The first point for consideration is as to the exact nature of Diyat, Arsh or Daman so as to determine its true effect. It is true that the definitions of these words contained in section 299, P.P.C.
Describe them as 'compensation' but the fact remains that section 53, P.P.C. Clearly provides that Qisas, Diyat, Arsh and Daman besides Tazir, death, imprisonment for life, imprisonments both rigorous and simple, forfeiture of property and fine are 'punishments' to which offenders are liable under the provisions of the Pakistan Penal Code. Diyat is in fact an alternate punishment to Qisas and the provisions of section 308, P.P.C. Confirm the same. Likewise Daman and Arsh are independent punishments in their own right. Diyat, Arsh and Daman may, however, be correctly described as punishments which are compensatory in nature but nonetheless they remain substantive punishments. Thus, the attempt by Kh. Saeed-uz-Zafar, the learned Deputy Attorney- General, and by Mr. Umar Ata Bandial, the learned amicus curiae, to portray these punishments as merely compensation may not be apt and their argument that such compensation is another form of a debt attracting various provisions of the civil law for its recovery may also not be acceptable. A substantive 'punishment' provided for a penal offence has to be undergone by the convict in the manner provided by the criminal law and there is no escape from it other than any provided by the criminal law itself.
24. As regards the mode of payment of recovery of Diyat, Arsh or Daman the same is provided for by the provisions of sections 331, 337-X and 337-Y, P.P.C. Reproduced above. The difference in this regard between Diyat and Arsh on the one hand and Darnan on the other is that sections 331 and 337-X, P.P.C. Dealing with payment and recovery of Diyat and Arsh respectively expressly provide for a grace period of three years to the convict for their payment but section 337-Y, P.P.C. Pertaining to Daman is silent about any such period. This could well be a result of an inadvertent omission on the part of the Draftsman but if the omission in this regard is deliberate then the reason for the same is not readily discernible. The remaining provisions of sections 331, 337-X and 337-Y in respect of the mode of payment and recovery of Diyat, Arsh and Daman are more or less similar, if not identical, and the same can be recapitulated through the following steps which are provided therein:
(i) 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 lump sum or in instalments.
(ii) If the convict fails to pay Diyat or Arsh or any part thereof within the abovementioned period allowed to him or he fails to pay Daman then he may be kept in jail until Diyat, Arsh or Daman is paid by him in full.
(iii) After failure of the convict to pay Diyat or Arsh within the period allowed to him and non- payment of Daman by him he may be released on bail if he furnishes security equivalent to the amount of Diyat, Arsh or Daman.
(iv) In case of death of the convict before payment of Diyat, Arsh or Daman the same is to be recovered from his estate. Upon a close and critical scrutiny of these provisions I have found that there are certain inherent obscurities and some downright absurdities engrained therein. It has already been noticed above that a grace period up to three years for making the requisite payment has been provided for payment of Diyat and Arsh but no such period has been provided for payment of Daman. It is not clear whether during this grace period the convict is to remain in jail or on bail. It is also not clear whether the convict would be kept in jail even where he has made a partial payment of Diyat or Arsh within the grace period or not. According to these provisions the grace period is to start from the date of the final judgment but it has not been clarified whether the date of the judgment would be the date of the judgment passed by the trial Court or the date of the judgment passed by the appellate or revisional Court. The fate of such grace period, if allowed, during the pendency of appeal or revision has also been left ambiguous in these provisions. It is also not clear when and at what stage the consequences of non-payment of Daman shall become operative as it is not provided that the convict shall be allowed any particular period for payment of Daman before hi's arrest for its non-payment. The question regarding the true import and meaning of the words "kept in jail" has also been left a begging an answer. It is not clear whether these words mean that the convict is already in jail and he would continue to be "kept" there or they mean that he shall be arrested upon non-payment of Diyat, Arsh or Daman after expiry of the period allowed to him for the purpose, if any, and shall then be kept in jail till the requisite amount is recovered from him. If such a grace period is to be allowed immediately upon announcement of the final judgment then it is not clear whether during such period the convict is to be set free to make arrangements for the requisite amount of money or he is to be kept in custody and to make arrangement for the money while confined in jail. There may be cases wherein, apart from the sentence regarding payment of Diyat, Arsh or Daman on one or more counts of the charge, the convict is also sentenced to death, imprisonment for life or other sentences of imprisonment on other counts of the charge. Would such a convict also be entitled to be set free for a period up to three years upon announcement of the judgment or such a convict is to make arrangements for making the requisite payment while confined in jail is also an intriguing question as in the latter situation the concept of the grace period would lose its essence and spirit and in the former situation the convict may abscond to save his life or to avoid a prolonged imprisonment. Releasing the convict on bail implies that he is already in custody but it may not necessarily be the case because this part of the relevant statutory provisions becomes operative after expiry of the grace period allowed to the convict for making the requisite payment. If the convict is already in custody then this provision does not make any sense as it throws up a situation that during the period allowed to the convict for making the requisite payment he is in custody but upon his failure to make the payment within the said period he may be favoured with bail. This appears to be nothing but absurd as a convict is not expected to be rewarded for his failure in that regard. Apart from that the concession of bail contemplated by these provisions can be extended only upon furnishing of 'security' by the convict and not upon furnishing of surety or personal bond. Security is normally of some valuable property.
If such a convict owns any valuable property valuing equivalent to the amount of Diyat, Arsh or Daman or somebody is ready to come forward for the benefit of such a convict by providing such security for the purpose of his bail then it is not expected that such a convict would prefer to remain in jail rather than furnishing of the necessary security for his bail. It appears that these provisions fail to cater for a convict who is completely a destitute and who has no one else to furnish such a security for his bail, as is the case of 145 prisoners mentioned above who are presently languishing m different jails in the Province of the Punjab. Ridiculousness of these provisions is further highlighted by the provisions relating to recovery of the amount of Diyat, Arsh or Daman from the estate of a convict who dies without making such payment. There may be a convict having or leaving no estate at all. In such a case this part of the punishment, which was primarily compensatory in nature, becomes meaningless or loses its relevance to the victim or his heirs. In case such a convict is on bail before his death there the damage may be minimal but one can imagine a possible situation where he is being "kept in jail" for the requisite payment and after remaining in jail for the rest of his life he dies in jail without making such a payment and leaves behind no estate for making a recovery possible therefrom. In such a case, after serving out his entire substantive sentence of imprisonment, the convict would be said to have been imprisoned for the rest of his life for no other reason except his poverty and his such imprisonment is going to be of no real benefit to the victim or his heirs. It is this aspect of the matter, which is the most offensive and unreasonable in the provisions of sections 331, 337-X and 337-Y, P.P.C.
25. Scrutiny of the provisions of sections 331, 337-X and 337-Y, P.P.C. Undertaken in the preceding paragraph leaves no doubt in my mind that most parts of the said provisions are replete with ambiguities, unexplainable obscurities and sometimes 'downright absurdities. A law governing crime and punishment and dealing with lives and liberties of citizens cannot be allowed by this Court to hold the field if such law is not only unreasonable but also capable of working as an engine of unjustifiable oppression.
26. Section 338-F, P.P.C. Requires that while interpreting and applying the provisions of the Chapter containing the abovementioned provisions this Court is to be guided by the injunctions of Islam as laid down in the Holy Qur'an and Sunnah. None of the learned counsel appearing in these petitions has been able to point out any 'Nus' from the Holy Qur'an or Sunnah requiring treatment of a convict, for the purposes of payment or recovery of Diyat, Arsh or Daman from him, in the manner provided in the provisions of sections 331, 337-X and 337-Y, P.P.C. To my humble mind Islam is a religion of reason and compassion. Unfortunately the relevant provisions of the abovementioned sections of the Pakistan Penal Code are either unreasonable or oppressive and, thus, the same do not appear to be adjusting well with the principles of Islamic dispensation of criminal justice.
27. Apart from what has been observed above in the opening part of this judgment I have already remarked that putting a human being, the best of Almighty Allah's creations, behind the bars for the rest of his life for no other reason than his impoverished financial condition is an idea offensive to the 'dignity' bestowed upon him by the Creator. The Holy Qur'an requires the believers to hate crime. But not the criminal and to extend mercy and compassion towards his unfortunate predicament wherever and, however, possible. As already observed above, the Constitution of the Islamic Republic of Pakistan, 1973 ensures it as a Fundamehtal Right guaranteed by Article 14 thereof that the dignity of man is inviolable and in the case of In re: Suo Motu Constitutional Petition 1994 SCMR 1028 the Hon'ble Supreme Court of Pakistan had unequivocally declared that even the worst criminal is entitled to his dignity as a human being. I am of the considered opinion that after serving out his substantive sentence of imprisonment keeping such a convict in jail for the rest of his life merely because he is not in a position to pay the requisite amount of compensation to the victim or his heirs or because he is not in a position to furnish the requisite security for his bail is a punishment which is not only incommensurate with the additional compensatory punishment awarded against such a convict but is also demeaning, debasing, humiliating and offensive to human dignity. I for one cannot allow a human being to rot in jail like a vegetable or to die in an iron cage like an animal merely because, for no fault of his own, he cannot buy his freedom by paying off another human being.
28. It may not be out of place to mention here that according to the provisions of section 53, P.P.C.
Fine is as much a punishment as Diyat, Arsh or Daman. The provisions of sections 64 to 71, P.P.C.
Clearly show that in case of default in payment of fine a convict may be detained in jail for a specified period but certainly not for an indefinite term. After expiry of that specified period the liability of the convict to pay the amount of fine remains intact but he cannot be imprisoned for that purpose any more. The same appears to be the position in the civil law in respect of debts or other financial liabilities as ably demonstrated by Kh. Saeed-uz-Zafar, the learned Deputy Attorney-General, and Mr. Umar Ata Bandial, the learned amicus curiae. Interestingly even the provisions of section 544-A, Cr.P.C. Dealing with a matter akin to that of Diyat, Arsh and Daman as well as to the purposes of sections 331, 337-X and 337-Y, P.P.C. Contemplate and provide for a similar approach. Thus, there is no reason why in the matter of payment and recovery of Diyat, Arsh or Daman the mechanism and methodology provided in section 544-A, Cr.P.C. May not be followed which provisions are not only otherwise clear, reasonable and fair but the same also fit into the general scheme of laws governing similar liabilities.
29. Adverting now to the question whether a destitute prisoner can seek assistance from the Zakat Fund or Bait-ul-Mal for the purposes of payment of Diyat, Arsh or Daman or not, it may straightaway be observed that all the learned counsel, including the learned Deputy Attorney- General and the learned Law Officer appearing on behalf of the Advocate-General, Punjab, have maintained before this Court in unison that the State is the modern manifestation of Aqila and in an appropriate case such an assistance can be provided to a convict from the abovementioned sources. The references from the. Holy Qur'an, Hadith of the Holy Prophet (p.b.u.h.), opinions of various scholars of Islamic law and instances from the Islamic history cited by Syed Afzal Haider, Dr. Riaz-ul-Hassan Gilani and Syed Shabbar Raza Rizvi, Advocates, the learned amicus curiae, clearly show that in an appropriate case an Islamic State can pay, and has been paying, Diyat on behalf of convicts who are unable to pay the same on their own. This may be for manifold reasons. Firstly, the requisite compensation is meant to satisfy vengeance of the victim or his heirs and such a payment by the State obviates a likelihood of reprisal or vendetta and thereby achieves peace in the society which is one of the primary responsibilities of the State. Secondly, the. State had failed to protect the victim's life or physical safety and it, thus, cannot avoid sharing the blame for the harm coming to him and therefore, chipping in by the State towards payment of compensation to the victim or his heirs is the least that -the State can do in such a situation. And, thirdly being a welfare State, an Islamic State is even otherwise expected to reach out and come to the rescue and assistance of a helpless citizen in need, be he a convict who has substantially cleaned himself of the crime by undergoing the entire substantive sentence of imprisonment passed against him.
Section 8 of the Zakat and Ushr Ordinance, 1980 and section 4 of the Pakistan Bait-ulMal Act, 1991 speak of "needy" and "other needy persons" respectively who are entitled to receive assistance from such sources. There is, thus, no reason why, especially in view of availability of such instances in the Islamic history, a destitute convict in the Islamic Republic of Pakistan may not receive assistance from such sources for the purpose of paying compensation to the victim or his heirs. It goes without saying that the abovementioned laws provide for a detailed mechanism to find out whether the request for assistance made by a person is genuine and bona fide or not. The suggestion made by Syed Afzal Haider, Advocate, the learned amicus curiae, to the effect that if the State pays the requisite compensation on behalf of the culprit on account of his financial inability in that regard then after the said culprit's -release the State should make him undergo a compulsory service on a project of public welfare so that he is gainfully employed therein and, thus, the amount of money spent by the State for his benefit in the matter of payment of compensation is ultimately recovered from him by the State appears to be a suggestion which needs consideration by the State. This suggestion not only solves the convict's immediate problem qua securing his release from prison but it also protects his self-respect besides ensuring recovery of public money spent for the benefit of such a convict. It may be pertinent to observe here that, as is evident from the report submitted by the Inspector-General of Prisons, Punjab, the State is already spending a lot of money on boarding and lodging of such prisoners and there may be cases where the State may ultimately end up spending more on keeping a prisoner in jail than paying up such prisoner's liability towards the victim or his heirs. This aspect of the matter may also be taken note of by the concerned authorities while considering a request made by a convict for financial assistance for the purpose of paying compensation to the victim or his heirs or for paying fine which is payable to the State itself.
30. The upshot of the above discussion is that the provisions of sections 331, 337-X and 337-Y, P.P.C.
Pertaining to the mode of payment and recovery of Diyat, Arsh and Daman and treatment of the convicts for the same have been found by this Court to be replete with ambiguities, unexplainable obscurities and downright absurdities. Articles 4 and 9 of the Constitution of the Islamic Republic of Pakistan, 1973 enjoin that no person shall be deprived of his life or liberty save in accordance with law. These provisions of the Constitution obviously presuppose that a law affecting life or liberty of a person has to be reasonable, clear, fair and just. A law governing crime and punishment and dealing with lives and liberties of citizens cannot be allowed to hold the field if such law is not only unreasonable, obscure and, at times, absurd but also capable of working as an engine of unjustifiable oppression. The abovementioned provisions of the Pakistan Penal Code have, thus, been found by this Court to be violative of the Fundamental Rights guaranteed by Articles 9 and 14 of the Constitution regarding life and liberty of citizens and dignity of man besides being offensive to the provisions of Article 4 of the Constitution pertaining to life and liberty of citizens. The provisions of sections 331, 337-X and 337-Y, 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 are, therefore, declared to be avoid on account of their inconsistency with the abovementioned Fundamental and Constitutional Rights.
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-Y, 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 provisions of section 544-A, Cr.P.C. Which not only deal 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. Ali 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 provisions 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.
32. As a necessary corollary to and consequence of what has been held above and keeping in view the provisions of section 544-A, Cr.P.C., which contemplate a maximum period of 6 months' imprisonment in case of a convict's failure to pay compensation to the victim or his heirs, it is directed that all those convicts who are at present being detained in prisons in the Province of the Punjab only ,on account of their failure to pay Diyat, Arsh and Daman shall be immediately released from prisons if they have already undergone imprisonment for a period of six months on account of nonpayment of Diyat, Arsh or Daman. The other convicts in prisons placed in a similar situation shall also be dealt with accordingly upon maturity of their cases for such release. It is, however, clarified that, in view of the provisions of section 544-A, Cr.P.C., despite their release from prisons the liability of these convicts regarding payment of Diyat, Arsh and Daman shall remain intact and the amount due from them shall be recoverable from them as arrears of land revenue. It is further clarified that at any stage of the matter destitute convicts shall be entitled to apply before the concerned authorities for assistance for the Zakat Fund or Bait-ul-Mal towards payment of Diyat, Arsh and Daman or fine and the concerned authorities shall be obliged to consider and take decision on all such requests in accordance with the relevant law and procedure.
33. All the points formulated by this Court in its order dated 16-4-2002 and both these petitions are decided in the terms detailed above. There shall be no order as to costs.
34. The Office of this Court is directed to send copies of this judgment to the Superintendents of all the Prisons in the Province of the Punjab for immediate compliance and implementation of this judgment. The Office shall also send copies of this judgment to the Federal and Provincial Secretaries of the respective Law Department, the Provincial Home Department and all the District and Sessions Judges in every District of the Province of the Punjab who shall supply a copy of this judgment to all the Presiding Officers of all the Criminal Courts in their respective Districts for their information.
35. Before parting with this judgment I must place on record my appreciation of the selfless and public spirit in which these petitions have been filed and vigorously pursued by Mr. M.D. Tahir, Advocate, the hard work undertaken and the valuable assistance rendered by the learned amicus curiae namely Syed Afzal Haider, Dr. Riaz-ul-Hassan Gilani, Syed Shabbar Raza Rizvi and Mr. Umar Ata Bandial, Advocates and the labour put in by Kh. Saeed-uz-Zafar, the learned Deputy Attorney- General, and Mr. Ishfaq Ahmad Chaudhry, Advocate, the learned Law Officer appearing on behalf of the Advocate-General, Punjab.