P L D 1950 Baghdad ﷓ul﷓Jadid 23 (PLP)

Criminal Revision No. 284 of‑1947, decided on 17th December 1947, from the order of D. M., Bahawalpur, dated 20th July, 1947. Criminal Procedure Code (V of 1898)

S. 33 read with Ss. 64 and 65 Pakistan Penal Code‑Limits for imposing sentence of imprisonment, in default of payment of fine stated. JUDGMENT.‑

I see no reason to interfere with the petitioners conviction. Both the Courts below appear to have applied their mind fully to the facts of the case before being convinced of the petitioner's guilt. I am however of the opinion that the sentence of fine imposed upon the petitioner is excessive and this is evidently proved by the fact that he has not been able to pay it during the last 7 months. I have also to point out to both the Courts below that the sentence of imprisonment awarded to the petitioner in default of payment of fine was illegal. There are only two provisions of law which deal with this matter (1) section 65 of the Penal Code and (2) section 33 of the Code of Criminal Procedure. Section 65 Pakistan Penal Code lays down that the term for which a Court can direct the offender to be imprisoned in default of payment of fine shall not exceed one‑fourth of the term of imprisonment which is the maximum fixed for the offence, if the offence be punishable with imprisonment as well as fine. Section 33 Criminal Procedure Code also defines the limits within which a Magistrate can impose a sentence of imprisonment in default of fine and in this behalf inter alia enacts that the Court of a Magistrate may award such terms of imprisonment in default of payment of fine as is authorised by law in case of such default, provided that (a) that term is not in excess of the Magistrate's powers under the Code of Criminal Procedure and (b) in any case decided by a Magistrate where imprisonment has been awarded as part of the substantive sentence, the period of imprisonment awarded in default of the payment of the fine shall not exceed one‑fourth of the period of imprisonment which such Magistrate is competent to inflict as punishment for the offence otherwise than as imprisonment in default of payment of the fine. An offence under section 406 Pakistan Penal Code is punish able with imprisonment of either description for a term which may extend to 3 years or with fine or with both. The sentence of imprisonment in default of payment of fine could not under section 65 Pakistan Penal Code exceed 9 months arid if the Magistrate had in addition to fine awarded a sentence of imprisonment also, the sentence in default or payment of fine could not have gone beyond .6 months by virtue of section 33 of the Code of Criminal Procedure. The petitioner has already been in jail for about 6 months, and I do not propose to detain him there any longer. I accordingly reduce his fine to Re. 300 and the sentence of Imprison ment in default of payment of fine to 6 months. I further impress upon both the Courts below the necessity of always ensuring that the sentence imposed by them is in accordance with the provisions of law. K. M. A. Revision dismissed.