2005 PLP 3306 (YLR)

RAHMAT HUSSAIN JAFFERI, J.

The present revision application is directed against the order dated 19-4-2005 passed by the learned Additional Sessions Judge, Naushahro Feroze in Sessions Case No.211 of 2000 State v. Zawar alias Muhammad Ramzan. Under the impugned order the learned Judge accepted the compromise. One of the legal heirs of the deceased was minor, therefore, her Diyat amount was fixed at Rs.1,77,

500. The Wali of the minor accepted the said amount. The trial Court further directed that the amount should be invested to some profitable scheme in the name of minor which shall be paid to her on attaining her age of puberty. Consequently the applicant was acquitted from the case subject to above. The order further reveals that the applicant was present as he did not pay the amount of Diyat on that date, therefore, he was taken and remanded to judicial custody till the payment of said amount. Learned counsel for the applicant has stated that trial Court was not justified in straightway, remanding the application to custody without giving him an opportunity or fixing the time in which Diyat amount should be paid as such the trial Court has violated the provisions of section 331, P.P.C. Learned A.A.-G. has stated that the trial Court was required, first to determine the time by which the Diyat amount was required to be paid and in case of non-payment of Diyat amount then the penal provisions could have been invoked. He has further stated that as the trial Court has not adopted the proper procedure therefore, he is unable to support the impugned order. The dispute revolves around the interpretation of section 331, P.P.C., which reads as under:-- "

331. Payment of Diyat.

(1) The Diyat may be made payable in lump sum or in instalments spread over a period of three years from the date of final judgment. (2) Where a convict fails to pay Diyat or any part thereof within the period specified in subsection (1), the convict may be kept in jail and dealt with in the same manner as if sentenced to simple imprisonment until the Diyat is paid full or may be released on bail if he furnishes security equivalent to the amount of Diyat to the satisfaction of the Court. (3) Where a convict dies before the payment of Diyat or any part thereof, it shall be recovered from his estate. " From the bare reading of the above provisions of law it is clear that under subsection (1) the Diyat amount can be paid in lump sum or in instalments spread over a period of 3 years from the date of judgment. Subsection (2) provides that when convict fails to pay Diyat or any part thereof within the period specified in subsection (1), then the convict may be kept in jail and dealt with in a same manner as if sentenced to simple imprisonment until the Diyat amount is paid or that he may be released on bail if he furnishes security equivalent to the amount of Diyat to the satisfaction of the Court. Subsection (3) provides that when the convict dies before the payment of Diyat or any part thereof then it shall be recovered from his estate. It is well-settled that penal provisions are construed strictly. Thus before invoking the penal provisions of section 331, P.P.C., the trial Court was required to have passed an order either to pay the Diyat amount in lump sum or in instalments which may spread over a period of 3 years from the date of judgment. Secondly if the accused fails to part Diyat or any part thereof as specified above then he can be kept in jail till the amount is paid. The Court has further been given discretion to release the accused on bail if he furnishes security equivalent to the amount of Diyat or any part thereof to the satisfaction of the Court. A perusal of the impugned order reveals that the trial Court did not pass any order directing the accused to pay the Diyat amount in lump sum or in instalments, nor fix the time for payment of such amount as such without invoking the provisions of sub-rules (1) and (2) the accused can not be remanded to judicial custody. As such the impugned order to the above extent is illegal and without jurisdiction, therefore, the same is set aside. The matter is remanded to the trial Court to pass an appropriate order within the meaning of subsections (1) and (2) of section 331, P.P.C. and then proceed further in accordance with law. The accused was on bail before the trial Court. The trial Court is directed to restore the position as it was on 19-4-2005. Criminal revision application is allowed. H.B.T./Z-27/K Case remanded.