P L D 2010 Karachi 291 (PLP)

ABDUL HADI KHOSA, J.

Heard the applicant/accused who is present in person. The case of the accused is that he while driving the water tanker committed accident and such F.I.R.No.247 of 2007, Police Station, Shahrah-e-Faisal, was registered and the case was challaned and tried as Case No.284 of 2007 by the Court of Vth Additional Sessions Judge, Karachi East and was convicted and sentenced to undergo R.I. for 3 years and to pay diyat amount as per Gazette Notification for the Financial year 2007-2008 the value of 30,630 grams of silver to the legal heirs of the deceased, vide judgment dated 7-3-2008 passed by the Vth Additional District and Sessions Judge, Karachi East, under section 320, P.P.C. on the allegation that he caused accident while driving the water tanker and thereby killed Umair Ahmed son of Shoibullah Khan and Nafees Nawaz son of Habib Mohsin. The appeal of the applicant has been dismissed on 4-3-2009. The accused has fully suffered and undergone conviction and sentence awarded by the trial Court and report dated 7-5-2010 submitted by the Superintendent Central Prison Karachi, shows that the accused has undergone the sentence for total 3 years six months and 11 days including remission. The applicant/accused has shown his inability stating that the has no means to pay the Diyat by remaining in jail, and there is no any other relative or friend financially sound to help him in this regard. If he is released on bail he would be able to earn and make arrangements for payment of Diyat amount to the legal heirs of the deceased, otherwise he will remain his whole life in jail. Mr. Habib Ahmed, Senior Counsel present in Court on the last date of hearing, was asked to provide legal assistance to the Court. In this regard the learned counsel had submitted authorities PLD 2002 (Lahore) 482 (Abid Hussain v. Chairman, Pakistan Bailtul Maal and others) which is a comprehensive judgment and at page 516, Placitum-F, it has been observed as under: "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 whenever and, however, possible. As already observed above, 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 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." In a case 2005 YLR 803 (Qadeer Mohy-ud-Din v. the State) the accused had sought his release on bail in accordance with section 331, P.P.C. on the ground that he has served out his sentence and was suffering in jail because of the non-payment of Diyat. Subsection (2) of section 331, P.P.C. enables the High Court to release the accused an bail for the purpose of payment of Diyat amount. The accused was admitted on bail with the direction to pay the amount of Diyat in lump sum or in instalments within stipulated period, failing which he would be taken in custody and would be kept in jail till payment of Diyat amount. In 1994 PCr.LJ 934 (Muhammad Afzal v. The State) is a case wherein the accused after his conviction and sentence for Qatl-i-Khata had been directed by Trial Court to remain in prison till he paid Rs.200,000 as Diyat to the heirs of the deceased. The accused had undergone the substantive sentence of his imprisonment, but being financially weak was not in a position to pay Diyat in lump sum. The accused in the circumstances, was released on bail on his furnishing bail cum-surety bonds in the sum equal to the amount of Diyat with one surety in the like amount, undertaking to pay the Diyat amount within a period of three years which per Notification No.S.R.O.619(1)/91, dated 1st July, 1991 of Finance Division, Government of Pakistan was Rs. 1,06,967.50. In Shariat Decisions 2002 page 407 (Reham Ali v. the State) convict having completed his sentence of imprisonment would be entitled to in terms of section 331 to be released on bail to enable him to earn the Diyat money. High Court in such case releasing convict on bail for three years to enable him to earn Diyat money subject to condition that he will be taken in custody if he fails to pay Diyat money in stipulated instalments. In 2003 SCMR 1850 convict was sentenced under section 320, P.P.C. for Qatl-i-Khata and under section 337-G, P.P.C. for causing hurt and was directed to pay Diyat and Daman which he failed to pay despite being in jail for more than six years. Financial position of the convict was so weak that he was unable to pay Diyat in lump sum, otherwise he would not have remained in jail after the expiry of his substantive sentences. The honourable Supreme Court considering such aspect of the matter, reduced the amount of Diyat as fixed by Federal Government and the amount of Daman was also reduced and it was directed that the convict be released subject to furnishing of his bail bond for a period of three years to enable him to make payment of Diyat and daman in 36 equal monthly instalments and in case the convict would fail to make payment in the said period, the convict would be taken into custody and kept in jail until the amount a was paid in full. As per Notification No.S.R.O. 706(1)/2007 published in the Gazette of Pakistan, Extraordinary, Part II, dated 4-7-2007, the Federal Government had declared Rs.7,54,430 to be the value of 30,360 grams of silver for the financial year 2007-2008 for the purpose of Diyat. The amount to be paid to the legal heirs of 2 deceased, namely Umair Ahmed son of Shoibullah Khan and Nafees Nawaz son of Habib Mohsin comes to Rs.15,08,

860. Under the circumstances of the case and the authorities referred above, I convert the application of the applicant to Bail Application, under section 331 subsection (2) of P.P.C. and grant him bail for 5 (five) years on furnishing surety in the sum of Rs.15,08,860 as equivalent to Diyat amount of both the deceased and on condition that the accused will earn and arrange for payment of Diyat amount to the legal heirs of the deceased Umair Ahmed son of Shoibullah Khan and Nafees Nawaz son of Habib Mohsin in instalments with 5 years otherwise he will be again taken in custody and put into jail. The trial Court is also directed that if the accused compromises with the legal heirs of the deceased Umair Ahmed Khan and Nafees Nawaz voluntarily, with their free-will and wish, then the application for compromise may be considered. The accused is granted bail subject to furnishing surety in the sum of Rs.15,08,860 and the P.R. bond in the like amount to the satisfaction of the Nazir of this Court. H.B.T./Z-9/K Order accordingly.