SHAMEEM HUSSAIN KADRI, J.-Amanat Ali, his brother Mubarak Ali and their father Sardar Khan were tried by the learned Additional Sessions Judge, Gujranwala for the murder of Muhammad Akhtar who vide his judgment dated 10th January, 1977, convicted all of them under section 302/34, P. P. C.
And sentenced the two brothers to death and a fine of Rs. 5,000 each or in default of payment of fine to suffer further R. I. For 2J years. Sardar Khan was awarded life imprisonment and also ordered to pay a fine of Rs. 3,000 or in default of payment, of fine to suffer further R.
1. For 11 years. The learned Judge further ordered that a sum of Rs. 10,000 out of the fine, if realised, be paid to the heirs off the deceased as compensation. Muhammad Arshed (P. W. 7) brother of the deceased made a statement (Exh. P. A.) before Shabir Hussain Sub-Inspector (P. W. 13) at Police Post Gakhar who recorded the same and formal F. I. R. (Exh. P. A./1) was drawn by Muhammad Hanif at Police Station, Sadar, Wazirabad, on 29th September, 1972, at 4 p. m. The distance between the place of occurrence and the police post is about a furlong while the police station is at a distance of 10 miles from the place of occurrence.
2. Muhammad Arshad stated that he was a student of seventh class. His elder brother Muhammad Akhtar had passed F. A. Examination. The relations of his father Muhammad Khan and his mother Mst. Sharifan Bibi were strained. His father had more inclination towards his brother Sardar Khan and his sons Mubarik Ali and Amanat Ali. In fact he used to take his meals from their house. At the time of harvesting of the crop his brother Muhammad Akhtar deceased demanded his share of batal but the father at the instigation of his brother Sardar Khan and his sons instead of giving him the share, sent a notice to his mother. At this his brother Muhammad Akhtar told his uncle Sardar Khan that now they had grown up and could not see their mother insulted. While sitting at Adda lorries Sardar Khan told his brother Muhammad Akhtar to go to the house of his paternal aunt where they would sit together and pursuade their father. At this Sardar Khan, Amanat Ali and Mubarik Ali abused his brother. Muhammad' Hussain and Abdul Qayum intervened and the matter was hushed up. Few days thereafter at Chah Cheemianwala, which is at a distance of three furlongs from Gakhar, where they and their uncle Sardar Khan possess land separately, Amanat Ali son of Sardar Khan was studying. The complainant's brother Muhammad Akhtar and Amanat Ali again quarrelled over the same matter. Muhammad Akhtar gave fist and kick blows to Amanat Ali who narrated this incident to Mubarak Ali and his father Sardar Khan who were looking for an occasion to kill Muhammad Akhtar. On the day of occurrence, namely, 29th September, 1972, at about 4 p.m. When the deceased in the Company of his brother as usual went towards their field, Sardar Khan and his two sons had switched on the electric motor installed in the 1hata and were irrigating the land from this tube-well. When both the brothers reached near them all the three accused raised lalkara to each other to finish Muhammad Akhtar. The brothers were empty handed. Amanat Ali and Mubarik Ali accused were armed with chhuris. Sardar Khan gave a lalkara at which both the brothers overpowered the deceased. The complainant stood nearby raising alarm which attracted Khushi Muhammad (P. W. 8) and Ghulam Haider (P. W. 9) at the spot. Both the accused inflicted- injuries one after the other. Mubarik Ali gave blow with his chhurris on the belly of Muhammad Akhtar who fell down. Thereafter both accused brothers continued giving blows, whereas Sardar Khan kept on raising lalkara. When the accused were satisfied that Muhammad Akhtar had died, they ran towards the village.
3. On 18th October, 1972, Amanat Ali led to the recovery of chhui (P. 1) which was taken into possession by Saddar Din (P. W. 11) Sub Inspector vide memo. Exh. P. C., attested by Khushi Muhammad, who was given up as won over and Allah Ditta (P. W. 10), resident of Kotli Ananta situate within the precincts of Police Station, Wandho. The chemica examiner vide his report (Exh. P.
J.) found that the chhuri was stained wit) blood while the Serologist vide report (Exh. P. L.) found that the scrapping from the chhuri had the origin of human blood.
4. Dr. Muhammad Riaz (P. W: 15) . Conducted autopsy on the dear body of Muhammad Akhtar on 30th September, 1972, and found fifteen injuries out of which injury No. 12 was multiple abrasion on front o chest.
Injury No. 13 were two small abrasions on front of left shoulder. Injury No. 15 was multiple incised wound on the back and front of left hand All the other injuries were incised and were on different parts of the body namely, bead, neck, cheek and chin. Injuries Nos. 8, 11 and 14 were grievous and dangerous to life which resulted in the cutting of blood vessel: of the neck, right wrist joint and an incised wound on front of left side of abdomen just below the eleventh rib. These injuries according to the doctor were sufficient to cause death in the ordinary course of nature, individually and collectively.
5. The prosecution examined Muhammad Arshad (P. W. 7) brother of the deceased, Khushi Muhammad (P. W. 8) and Ghulam Haider (P. W. 9). Muhammad Qayum was another eye-witness of the occurrence who was not produced. Javed Akhtar Bajwa (P. W. 12), who was then C.
1. A.
Inspector, Gujranwala, partly investigated the case. Amanat and Sardar Khan were produced before him on 9th October, 1972 and he arrested them. Mubarak was declared as proclaimed offender by the Ilaqa Magistrate at the instance of this police officer. Abdul-Hamid A. S. I. (P. W. 14) arrested Mubarak Ali on 3rd September, 1974.
6. All the accused accepted their inter se relationship and submitted that Muhammad Arshad and his deceased brothers are the sons of their father's brother Muhammad Khan. There was no denial of strained relations of Muhammad Khan with his wife. It was denied by Amanat Ali and Mubarik that Muhammad Khan had sent notice of divorce to his wife at the instance of their father. Amanat Ali denied the recovery of chhuri. Sardar Khan denied the raising of latkara. All the three accused denied the motive and the occurrence and stated that they ware implicated on account of enmity.
7. The motive has been deposed by Muhammad Arshad (P. W. 7), brother of the deceased and Muhammad Hussain (P. W. 6). After going through the evidence of eye-witnesses and hearing arguments of learned counsel for the appellants, the State and the complainant who has prayed for capital sentence to Sardar Khan and enhancement of compensation in Criminal Revision No. 230 of 1977, we are of the view that the father o deceased bad strained relations with his wife, mother of the deceased. On account of his inclination towards his brother and his family and the demand of share of produce by the deceased from his father occasionally there had been quarrells as depos:d by Muhammad Arshad (P. W. 7) and Muhammad Hussain (P. W. 6). So far as Sardar Khan is concerned only lalkara has been attributed to him and we are of the view that he has been falsely implicated on account of the alleged motive. We acquit him. Reliance is placed on Muhammad Ashraf v. Faiz Ali PLD 1975 SC 556, Hidayatullah and others v. The State 1976 P Cr. L J 1067, Shera and others v. The State 1976 P Cr. L J 1028 and Muhammad Latif and others v. The State 1976 P Cr. L J 1151. So far as the other two accused are concerned their implication in the crime is proved beyond reasonable doubt. The ocular) testimony is corroborated by the recovery of chhuri from Amanat Ali which has been found to be used as weapon of offence by the Chemical Examine and the Serologist, whereas the absconsion of Mubarik Ali goes a long way to corroborate his implication in the incident. We therefore uphold their conviction. So far as the sentence of death is concerned we are not) inclined to confirm the same for the simple reason that we have not placed reliance on the ocular testimony in toto applying the rule of prudence. Namely, sifting the grain from the chaff and for that reason we have acquitted their father. The incident had a history of family dispute over property in which both the parties attributed overt acts every now and then to each other.
8. It was argued by Ch. Nazir Ahmad Khan, learned counsel for the appellants that some untoward incident must have happened like the previous occasions on account of the demand of share of the produce of land by Muhammad Akhtar deceased. It is in evidence that the deceased had on an earlier occasion given fist and kick blows to abuses had taken place on various occasions. In the submissions made. The capital sentence, therefore is uncalled for. We convert the sentence of death into imprisonment for life as regards Amanat Ali and Mubarik Ali appellants. Their sentence of death is mot confirmed.
9. As regards the fine the complainant himself had also asked for enhancement of compensation.
We are of the view that the fine in this case should be compatible with the circumstances of the case. A doubt arose in our mind while dictating the judgment as to whether the heavy amount of compensation if ordered to be paid to the heirs of the deceased under section 544-A, Cr. P. C. Will be given effect to or it would be avoided by serving the sentence of six months mentioned in subsection (2) thereof. We, therefore, issued notice to the accused which was accepted by Ch. Nazir Ahmad: He has instructions from his clients for payment of fine in case it is enhanced and to this effect he has also filed written acceptance. Notice was also issued to the learned Advocate- General to assist the Court for the interpretation of this section. Mr. Aamer Raza A. Khan bas appeared and has traced the history of this section. He submitted that section 544-A was first added by Code of Criminal Procedure (West Pakistan Amendment) Act, 1963, only in West Pakistan but later on the recommendation of the Law Reforms Commission in 1972 vide Law Reforms Ordinance, 1972, the section in its present form was substituted by the Central Government. He then referred to the report of the Lain Reform Commission 1.967-70, Chapter XI, page 291 and read paras.
39 to 41.
10. It was argued that the word `compensation' has been used in the section in its special connotation and it has been made clear in subsection (2) that it shall be recoverable as fine imposed by the Court. The word 'shall' has been used for awarding the compensation to the heirs of the deceased or injured person, unless for reasons to be recorded in writing the Court otherwise directs. It is further made clear that the compensation has to be realised as fine imposed by the Court and in default of payment thereof, the person ordered to pay such compensation has to suffer imprisonment for a period not exceeding six months. Learned Advocate-General referred to various sections of the Pakistan Penal Code. Sections 53 and 66 to 70 deal with punishment in Chapter III of Pakistan Penal Code. Section 53 provides punishment of death, imprisonment of different descriptions, forfeiture of property and fine. Sections 66 to 69 lay down the procedure dealing with imprisonment in default of payment of fine, imprisonment for nonpayment of fine.
When the offence i$ punishable with fine only, termination of imprisonment on payment of fine .Or proportionate part payment of fine. Section 70 specifically lays down that the fine, or any part thereof which remains unpaid, mad- he 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. Section 302, P. P. C. Provides punishment for murder i. e. Death or imprisonment for life and fine.
11. Learned Advocate-General then took us through sections 31, 32, 33(1) (b), 250, 386, 546 and 547, Cr. P. C. Section 3 I empowers the High Court to pass any sentence authorised by law, section 32 deals with the powers of the Magistrates to pass certain sentences, section 33 (1) (b) provides the maximum period of sentence in default of payment of fine i. e. One-fourth of the period of imprisonment which such Magistrate is competent to inflict as punishment for the offence, It was argued that section 250, Cr. P. C. Is pari materia with section 35-A of the Code of Civil Procedure dealing with compensation in respect of false. Frivolous or vexatious claims or defences before a Court of Civil jurisdiction. Section 386, Cr. P. C. Reads as under : , "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 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 authorising him to realise 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 such warrant.
(2)--------------------------------------------------------------------------------------- ------------------------------------..
(3)--------------------------------------------------------------------------------------- ------------------------------------..
This section prescribes procedure by which the recovery of fine is to be made when such a sentence is passed by a Court, namely, issuance of warrant for the levy of the amount by attachment of movable and immovable property. The warrant has to be issued to the Collector of the District authorising him to realise the amount by execution according to civil process against movable or immovable property of the defaulter. Such a warrant issued to the Collector has to be deemed to be a decree and the Collector as the decree holder according to the C. P. C. And the relevant civil Court has to be the executing Court. The provisions of Code of Civil Procedure in execution proceedings have been made applicable. The provisos to subsection (1) and subsection
(3) of section 386, Cr. P. C. Are not relevant in the instant case. Section 546, Cr. P. C. Lays down that in case of a civil suit asking for compensation on account of some injury or death of an individual the civil Court has to take into consideration the amount of compensation awarded under section 544-A, Cr. P. C. Section 547; Cr. P. C. Further clarifies that any money (other than a fine) which is payable by virtue of any order under the Cr. P. C. And the method of recovery of which is not otherwise expressly provided for, shall be recoverable as if it were a fine.
12. Learned Advocate-General cited The State v. Rab Nawaz and another PLD 1974 SC 87 and read last paragraph at page 98 in which the provisions of section 544-A, Cr. P. C. Have been discussed.
He submitted that so far a the sentence of three years in default of payment of fine is concerned that is an erroneous view which comes in conflict with section 541-A, Cr. P. C., for, the maximum sentence in default of payment of fine is six months only. There is considerable force in the submission made by the learned counsel and there is no escape in agreeing with the submission made that the sentence awarded by the Supreme Court was beyond the purview of section 544-A, Cr. P. C. Our attention was drawn to judgment of the Supreme Court reported as Abdul Rahman and another v. Khurshid Hussain and another 1976 SCMR 195 wherein it was observed that before enhancing the amount of fine under section 544-A, Cr. P. C. It is necessary to comply with the provisions of section 439 (2), Cr. P. C. Thus it is clear that there is no escape for an accused. But to pay the compensation awarded under section 544-A, Cr. P. C. To the heirs of the deceased. The realization cannot be frustrated.
13. Mr. Ejaz Hussain Batalvi was present in Court who had to face a similar proposition in another murder case before this Bench. He wholeheartedly supported the views of the learned Advocate- General and referred to Prem's Judicial Dictionary, Volume 11, 1954 Edition at page 690 of which `fine' has been defined to mean: "fine signifieth a pecuniarie punishment of an offence or a contempt. Committed against the king and regularly to it imprisonment appertaineth. And it is called `Finis', because it is end for that offence.". He then referred to Wharton's Law Lexicon, Fourteenth Edition, wherein fine has been described in the following words :- "Fine, a sum of money or mulet imposed upon an offender, also called a ransom."
He then referred to para. 240 of the Construction of Statutes by Zari T. Crawford, 1940 Edition, on page 460, which is reproduced as under : "Criminal and penal statutes must be strictly construed that is, they cannot be enlarged or extended by intendment, implication, or by any equitable considerations. In other words, the language cannot be enlarged beyond the ordinary meaning of its terms in order to carry into effect the general purpose for which the statute was enacted. Only those persons, offences, and penalties, clearly included, beyond any reasonable doubt, will be considered within the statute's operation. They must come clearly within both the spirit and the letter of the statute."
Mr. Ejaz Hussain Batalvi cited Nil Kantha Pal v. Bisakha Pal AIR 1935 Cal. 546 a case regarding realisation of fine under section 386, Cr. P. C. Wherein a fine of Rs. 5,000 was ordered to be paid as compensation to the widow of the deceased although section 544-A, Cr. P. C. Then did not exist in the Code. Reliance was also placed on Haji Matiur Rehman Chowdhury v. The State PLD 1962 Dacca 238 in regard - to the interpretation of section 386, Cr. P. C. It was submitted that the sentence of death in a case of murder. Is confirmed by the High Court under section 374, Cr. P. C.
Although the sentence is passed by the Sessions Judge. According to him the High Court is competent to enhance the sentence of fine while dealing with the murder reference.
14. We have formally given notice to Ch. Nazir Ahmad learned counsel for the appellants for enhancement of amount of compensation. He accepted the notice and has contacted his clients through their Special Attorney who had authorised his junior Mr. Zia-ud-Din Khan, Advocate, to accept the enhanced compensation, The written consent is placed on the record. We agree with the submissions of Mr. Ejaz Hussain Batalvi and are of- the view that section 439, Cr. P. C. Would not be relevant for the purpose of enhancement of compensation despite that we have complied with the formality keeping in view the principle of natural justice. Learned counsel for the appellants was even prepared to deposit the amount in Court for payment of compensation which was brought by the relatives of his clients. We direct the issuance of a warrant under section 386, Cr. P. C. To the Collector of the District concerned for realisation of the amount of fine. A copy of this judgment will be sent to the Inspector-General of Police, Lahore, who shall issue instructions for circulation in his Department that while investigating the matter the Investigating Officer should mention the financial position of the accused, their assets and source of income. With this modification the appeal of Amanat Ali and his brother is rejected. The prayer of the complainant for enhancement of compensation is allowed. It shall be paid to the heirs of the deceased out of the fine. Imposed on the convicted appellants. The revision it disposed of and the Murder Reference is rejected.
15. In view of what has been held above we think the fine in this case should be compatible with the circumstances. We accordingly enhance the fine, from Rs. 5,000 each to Rs. 40,C00 each to be paid by Amanat Ali and Mubarik Ali out of which Rs. 75,000 shall be paid to the heirs of the deceased as compensation. We are of the confirmed view that the sentence of death is not as deterrent as imposition of heavy fine on the accused. The payment of compensation to the heirs of the deceased shall certainly be a deterrent factor in the commission of the crime of murder especially when the disputes relate to property. Before parting with this case we highly appreciate the assistance given to us by the learned Advocate-General and Mr. Ejaz Hussain Batalvi in solving this proposition of law.