1984 PLP 493 (SCMR)

MUHAMMAD HALEEM, ACTG. C. J.‑This appeal, by leave, arises from the order of the Lahore High Court, Lahore, dated the 3rd October, 1977, by which Writ Petition No. 2720 of 1977, was dismissed in limine. The precise question for determination is as to whether while imposing' a sentence of imprisonment under section 12(b) of the Criminal Law (Special Provisions) Ordinance, 1968, the punishing authority should further direct the payment of fine. This question arose in the following circumstances. Respondents 4 to 8 were tried by the Tribunal constituted under section 6 of the Criminal Law (Special Provision) Ordinance, 1968, pursuant to a reference made by the Deputy Commissioner, Dera Ghazi Khan, under section 5 of the Ordinance for having committed the murder of Abdul Hakim. The Tribunal found them guilty of murder, and, accordingly, submitted its recommendation to the Deputy Commis sioner, who, while agreeing with this recommendation, convicted Khuda Bakhah to 10 years ' R. I. while the other four to three years R.I as no overt act was attributed to them but only their presence was estab lished. This sentence was awarded under section 302 read with section 149, P. P. C. On appeals preferred to the Commissioner, Multan Division, Multan, under section 24 of this Ordinance against the order of the Deputy Commis sioner dated the 30th of August, 1976, the sentence awarded to Khuda Bakhsh was enhanced to 14 years while those of the other respondents‑to seven years' R. I. each. Against this enhancement of sentence a revision was filed under section 25 of the said Ordinance before the Home Secretary to the Government of Punjab, Lahore, who set aside the order of the Commissioner and restored that of the Deputy Commissioner. The petitioner thereupon moved the High Court through writ petition No. 2720 of 1977 and challenged the legality of the sentence awarded to the respondents for not having imposed the sentence of fine as well. But the High Court repelled this contention holding that clause (b) of section 12 "clearly empower the sentencing authorities to impose terms of imprisonment in lieu of fine". The determination of the question rests on the true import of sec tion 12 of the Ordinance. In this provision as originally enacted in Criminal Law (Special Provisions) Ordinance, 1968, which was promulgated on the 16th of January, 1968, the word "may" was used in subsection (1) of sec tion 12 before the words "pass upon him any sentence of fine'", and in the subsequent Ordinance, which received the approval of the Provincial Assem bly, West Pakistan, on the 12th of June, 1968, the word "may" was substituted by the word "shall" in clause (a) of the said section without any other change in the language of this provision. Though in general sense the word "may" gives an impression of its being enabling or discretional, and the word "shall" as obligatory, yet the connotation is not inelastic and inviolate. Cases are not wanting where the words "may", "shall" and "must" are used interchangeably. Accordingly, in order to find out whether these words are being used in a directory or in a mandatory sense, the intent of the Legislature is the guiding factor. But this much is a settled proposition that where fi , positive direction is given as in the instant case, the use of the word "may" has a connotation of compulsion or obligation. And this, in the case in hand, is in regard to the awarding of sentence of fine without any limit. The substitution of the word "shall" in the present Ordinance has made no difference. There is, however, in clause (b) of section 12, and alternative which is evi dent from the use of the word "may" before the words "in lieu of, or in addition to, such fine". The words "in lieu of" mean an exchange or return for, as the payment, penalty or reward for. Similarly, the words "in addition to" mean something added. This obviously shows that the word "may" is permissive and gives the discretion to the punishing authority to award imprisonment in lieu of, or in addition to fine. Here it cannot have the connotation of command as in the case of the ‑word "shall". Thus while reading clauses (a) and (b) of section 12 of the said Ordinance together, the punishing authority is empowered either to impose a fine without any limit and award sentence of imprisonment or in lieu of imposition of fine, award sentence of imprisonment. Accordingly, the opinion of the High Court is unexceptionable. The appeal fails, and is hereby dismissed, but with no order as to costs. S. Q. Appeal dismissed.