2001 P Cr (PLP)

Mansoob Ali Qureshi for Appellant. Fazal‑ur‑Rehman Awan for the State. Date of hearing: 12th April, 2001. Mr. Mansoob Ali Qureshi, learned counsel for the appellant has not assailed the conviction awarded by the Lower Court. His first contention is that the benefit of section 382‑B, Cr.P.C. has not been extended to the appellant which is a mandatory requirement. He has submitted that the impugned order may be modified and the benefit of section 382‑B, Cr.P.C. be extended to the appellant. In support of his contention he has placed reliance on the judgment of Honourable Supreme Court in the case of Qadir and another v. The State PLD 1991 SC 1065. Mr. Fazal‑ur‑Rehman Awan, learned State Counsel has frankly conceded that the appellant is entitled for the benefit of section 382‑B, Cr.P.C. as it .is a mandatory injunction of law. By consent the order of the trial Court to the effect that the appellant, is not entitled for benefit of section 382‑$, Cr.P.C. for remaining in jai during the trial is hereby modified. The appellant is entitled to the benefit of section 382‑B, Cr.P.C., which is extended to him. The next contention of Mr. Mansoob Ali Qureshi, is that the compensation awarded under section 544‑A, Cr.P.C. to the heirs of deceased at Rs.50,000 may be omitted. In support of his, contention he has placed reliance on a judgment of Quetta High Court, in the case of Chutta and others v. The State 1995 PCr.LJ 755. 1 have perused the cited judgment of the Quetta High Court and with all due deference and respect to the learned Judges of Quetta High Court. I am of the opinion that thereal import of section 544‑A, Cr.P.C. has not been considered in the said judgment. The cited judgment through out speaks of fine under section 544‑A, Cr.P.C. reads as follows:‑‑ "544‑A Compensation to the heirs of the person killed. etc.‑‑‑ (1) Whenever a person is convicted of an offence in the commission whereof 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 heir 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, or 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 arrears 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), (3 ) 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." A perusal of the above section shows that the Legislature has provided that whenever a person is convicted of an offence in the commission whereof the death, 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, or 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. It is further provided in subsection (2) that the compensation payable under subsection (1) shall be recoverable as an arrears 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. It is further provided in subsection (3) that 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. It has been held by Peshawar High Court in the judgment reported as 1994 PCr.LJ 1041, that the words "unless for reasons to be recorded in writing" occurring in section 544‑A show that provisions of section 544‑A are mandatory. Trial Court, Appellate and Revisional Courts, for reasons to be recorded, may refuse to award compensation to heirs of deceased. In the cited judgment an instance was considered which provided justification for non‑awarding of compensation. I am persuaded to agree with the view expressed by Peshawar High Court in the judgment cited above for the additional reason that in section 544‑A, Cr.P.C. it is provided that 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 etc. such compensation as the Court may determine having regard to the circumstances of the case. I am not persuaded to agree with the views of Quetta High Court that after amendment in Pakistan Penal Code, which contains the substantive law, the compensation awarded under section 544‑A, Cr.P.C. which is, adjective law, cannot be awarded. No doubt the Code of Criminal Procedure is predominantly an adjective law and contains matters pertaining to the procedure but it would not be correct to say that entire Criminal Procedure Code, does not contain any substantive provision of law. There are various provisions in Cr.P.C. which are substantive in nature. The Honourable Judges of Quetta High Court have further failed to consider the provisions contained in subsection (3) of section 544‑A, that the compensation payable under subsection (1) of section 544‑A, Cr.P.C. 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. There is nothing in the Pakistan Penal Code, to show that the Legislature has enacted any non‑abstante clause to the effect that notwithstanding anything contained in any other law for the time being in force, the punishment provided in P.P.C. shall be the only punishment. It has not been pointed out to me that the amendments made in P.P.C. through the Qisas and Diyat amendments are in supersession or derogation of any other law contained in any other statute for the time being in force and prevailing at the time of amendment. The Courts are supposed, rather required to interpret and implement the laws as they are enacted by the Legislature and are not empowered to legislate the laws. The doctrine of double jeopardy is also not attracted for the reason that compensation under section 544‑A is in addition to any sentence which the Court may award for the offence of which the person directed to pay compensation has been convicted. Moreover subsection (1) has clearly provided that for the reasons to be recorded in writing the compensation may not be awarded. Thus, if any Court while awarding any punishment under section 302, P.P.C. or any other relevant section of P.P.C. has awarded the punishment of the Diyat or Arsh or Daman, then the said factor may be considered for non‑awarding of compensation under section 544‑A, Cr.P.C. In the present case I do not find that the trial Court awarding sentence for the offence punishable under section 302, P.P.C. has directed for payment of any other amount and as such there were no circumstances warranting non awarding of mandatory compensation under section 544‑A, Cr.P.C. For the foregoing reasons, I am of the opinion that the trial Court while awarding compensation under section 544‑A, Cr.P.C. at Rs.50,000 has acted within the parameters of law to which no exception can be taken. The awarding of compensation under section 544‑A, Cr.P.C. is, therefore, upheld. However, I find another aspect which has not been argued by the learned counsel for the appellant. It is provided in section 544‑A, subsection (2), Cr.P.C. that in default of payment or recovery of the compensation the person ordered to pay such compensation shall suffer imprisonment for a period not exceeding six months. In the present case the learned trial Court has directed that in default of fine accused shall serve one year more rigorous imprisonment. It appears that the learned trial Court has confused the compensation with fine and has not properly read the provisions contained in section 544‑A, Cr.P.C. while awarding the compensation and has wrongly used the term fine for the proper term compensation, and has further fallen in error by directing that in case of default the appellant shall suffer rigorous imprisonment for one year more. This direction is also modified to the effect that in case of default of the payment of compensation under section 544‑A, Cr.P.C. the appellant shall undergo R.I. for a period of six months. The appeal is partly allowed to the extent and in the manner as indicated above. N.H.Q./M‑156/K Order accordingly.