1997 P Cr (PLP)

A.G. Shaikh, Addl. A.-G. for the State. Date of hearing: 19th September, 1996 Appellant Gulab alongwith Allah Dad, Abdul Latif and Eidan (acquitted accused) were tried by learned IVth Additional Sessions Judge, Shikarpur for causing grievous injuries to Mst. Shareefan and Mst. Kazbano. On the conclusion of the trial the appellant was found guilty and was convicted under section 337-D, Q&D Ordinance (amended, P.P.C.) and sentenced to undergo R.I. for 4 years and to pay a fine in terms of Arsh worth Rs.56,666 being 1/3rd of Diyat amount for each injured separately whereas other co accused were acquitted on the benefit of doubt vide judgment, dated 30-4-1995. Appellant filed appeal from inside the jail and during its pendency Mr. Nizamudc4n Baluch filed power on his behalf. Mr. Nizamuddin Baluch learned counsel for the appellant outrightly submitted that appellant has already served out his sentence but as he has not paid the Arsh amount to the victim/injured, therefore, is still confined in jail. Superintendent Central Prison, Sukkur submitted report on 18-6-1996 before this Court that appellant Gulab has served out his substantive sentence and is confined in jail for non-payment of Arsh/compensation of amounting of Rs.56,

666. Learned counsel for the appellant argued that the financial position of the appellant is so weak that he is not in a position to pay the Arsh amount in lumpsum or in the instalments spread over a period of 3 years from the date of judgment. Appellant present in Court disclosed that he has only brother in family namely Hafiz Ghulam Hyder son of Kareem Bux Soomro, resident of Humayoon, District Shikarpur and will stand surety and will furnish security equal to the amount of Arsh for his release on bail as required under subsection (2) of section 337-X. Mr. Baluch lastly submitted that the appellant be released on bail on furnishing surety of his brother with an undertaking to pay the compensation within 3 years from his release, else he may again be remanded to custody, be detained inside jail until the Arsh amount is deposited. He placed reliance on the case-law reported in 1994 PCr.LJ

934. Mr. A.G. Shaikh, Additional Advocate-General appearing on behalf of State conceded and stated that it is a fact that the appellant has served out his substantive sentence R.I. for 4 years and is confined only for non-payment of Arsh amount. He in these circumstances agreed that the appellant be released on his bail if he furnishes security for a period of 3 years for making payment of the Arsh amount as required under the above provisions of law and in case if he fails he may again be sent to custody. It is an admitted fact that the appellant has, by this time, undergone the substantive sentence of imprisonment awarded to him by the trial Court after his conviction and sentence as above and he was ordered to, remain in prison till such time he makes payment of Arsh amount of Rs.56,666 to each victims/injured in lumpsum or instalments spread over a period of 3 years from the date of conviction. According to the appellant and his counsel the financial position of the appellant is so weak that he is not in a position to pay Arsh amount or to furnish security equal to the amount, otherwise he would not have stayed in jail for a period after the expiry of his substantive sentence. This position further gets support from the fact that was unable to engage counsel before this Court and Mr. Nizamuddin Baluch filed power on his behalf on humanitarian grounds. Taking into the consideration this aspect of the matter, the appellant may be released on bail if he furnishes bail-cum-security bond of his brother' Hafiz Ghulam Hyder in the sum equal to the amount of Arsh to the satisfaction of learned trial Court with an undertaking to pay the same within a period of 3 years from the date of this order, failing which appellant shall be re-arrested and sent to the prison where he shall stay for such time till he pays such amount of Arsh. Amount deposited by the appellant shall be paid to the victims/injured by the trial Court. With above observations appeal stands disposed of. N.H.Q./G-13/K Order accordingly