P L D 1962 (W (PLP)

"Whoever commits murder shall be punished with death, or transportation for life, and shall also be liable to fine." It could be said that the Punjab case had taken the view, at least impliedly, that the imposition of fine was not absolutely necessary on a conviction under section 302 of the Penal Code in which section the expression "and shall also be liable to fine" occurs. In the second case, i.e., A I R 1929 All. 260 (1) it was remarked by two learned Judges of the Allahabad High Court that though section 420 of the Penal Code said that on conviction under that section the offender shall be punished with imprisonment of either description for a term which may extend to the period mentioned in the section and shall also be liable to fine, the impo sition of fine was not absolutely necessary. It appears to me that the remarks made regarding the imposition of fine were not necessary for the disposal of the question before the learned Judges. The case had come before them for consideration of the question whether a sentence of imprisonment was unavoidable when a person was convicted under section 429 of the Penal Code, because the trial Court had passed a sentence of fine only, and it was while dealing with that question on a petition for enhancement of sentence presented by Government that the learned Judges said that the expression "and shall also be liable to fine" which occurs in the Penal Code did not mean that a fine shall be imposed and only meant that a fine could be imposed. The Judges did not give any reason for the view they bad taken and it is, therefore, necessary to consider the question whether or not the view expressed by Mr. Ashfaq Ali, who, as Additional Sessions Judge, Lahore, had remanded the case to the trial Magistrate, who had not added a sentence of fine to the sentence of imprisonment imposed on the accused person convicted of an offence under section 457 of the Pakistan Penal Code read with section 75 of that Code, was correct.

6. As mentioned by me in the last paragraph but one, the Pakistan Penal Code mentions the imposition of fine in at least four different ways, and relying on the difference of language used at different places, learned counsel for the State contended that if the intention of the law‑makers had been that the imposi tion of fine was not incumbent where it was said in the penalty clause of a section of the Penal Code that the offender shall also be liable to fine, one of the other expressions used in the Penal Code with regard to the imposition of fine would have been used. He also drew attention to some sections of some statutes other than the Penal Code where the legislature had said that a person on conviction shall be punished with imprison ment to which fine may be added, and contended that if the authors of the Penal Code had intended that the imposition of fine was not obligatory the expression "to which fine may be added" would have been used after the punishment of imprison ment had been specified as the penalty for an offence. The comparison of the language of the other statutes in which this expression is used and the Penal Code is not helpful. The Pakistan Penal Code, which was then known as the Indian Penal Code, became law as long ago as 1860, while the statutes which the learned counsel for the petitioner wanted to use to show a contrast in the language were passed about eight or nine decades later and the inference with regard to the meaning of an expression used in 1860 could not be safely drawn from the language used about a century later. The Court has to find what the intention of those who made the Indian Penal Code was when they used the expression "and shall also be liable to fine." The Indian Penal Code was amended from time to time and in some sections inserted as late as the twenties of the present century con tained the expression "and shall also be liable to fine" has been employed. The Court can presume that the expression used by both the law‑makers in the same statute had the same meaning, but it would not be safe to interpret the language used in 1860 by consideration of the language used about a century later.

7. Having considered the matter from all aspects, I have arrived at the conclusion that the expression "and shall also be liable to fine" means that the imposition of fine in addition to the other punishment imposed was absolutely necessary. This is clear from the language employed in the Pakistan Penal Code in its different sections. A reference to sections, wherein it is said that a person convicted of an offence could be awarded a sentence of imprisonment or fine or both, is not helpful because it is clear that the intention of the law‑makers was that the sentence imposed may be either imprisonment or fine, or both imprisonment and fine. The sections of the Pakistan Penal Code in which the expression "and shall also be liable to fine" is used make the imposition of sore punishment other than fine incumbent. For example, in section 302 of the Pakistan Penal Code it is said that a person found guilty of an offence of murder shall be sentenced. to death or transportation for life and shall also be liable to fine, while in the section which was considered in the present case it is said that the offender if he intended to commit theft in the circumstances mentioned in the section shall be punished with imprisonment of either description for a term which may extend to fourteen years, and shall also be liable to fine. In Emperor v. Durg, it was said that liability to fine cannot be construed to mean absolute necessity of the Imposition of fine. As one of the learned Judges who gave that decision, namely Boys, J., was an Englishman I will assume that the ordinary meaning of "liability" is the one mentioned in that decision but the question arises whether tire intention of the authors of the Penal Code was that on conviction about which the Code says that the offender shall also be liable to fine the imposition of fine was not necessary.

8. The principle that where Courts have for a long time put a certain interpretation on a provision of law that interpreta tion should not be changed, which principle is called stare decisis Is not applicable for two reasons. The first of these reasons is that the thing behind the desire not to change an F interpretation which has held the field for a long time is that relying on decision of Courts many persons must have entered into various transactions and a change in the interpretation must necessarily result in many a transaction becoming invalid, though they were not even suspected to be invalid at the time they were entered into. The principle cannot be applicable to punishment for crimes because no one can reasonably urge that he would not have committed a crime had he not been under the impression that the punishment for the offence was lighter than the Court believes it to be. The second reason is that the decisions on the point are but few two of which, namely, Chuha v. Crown and Emperor v. Durg, were cited at the hearing and as I have said while discussing these decisions the point that arises here did not have the attention of the Court focussed on it. While on this point 1 might advert to a provision which exists in Rules and Orders of this Court. I refer here to rule 1 of Chapter 19‑C of Volume 3, last two sentences of which read as under: ‑ "In the case of many offences under the Indian Penal Code and other Acts, it is provided that the offender shall be punished with imprisonment up to a certain term and shall also be liable to fine. In such cases the offender must be sentenced to some period of imprisonment (however small) but it is not obligatory to impose fine in addition, as supposed by some Magistrates " I am clear in my mind that the above‑reproduced rule is entitled to respect and that no judicial officer, even a Judge of this Court, can be held to have been remiss in the discharge of his duties if he acts on the rule, but I am equally clear that the rule has not the binding force which a decision of a Court has.

9. What I have said about my view about the meaning of the expression "and shall also be liable to fine" receives support from the Penal Code itself. In some sections of this Code it is said that a sentence of imprisonment which must be imposed may be with or without fine from which language it becomes manifest that the imposition of fine is not incumbent, while in some other sections the expression used is the one under consideration in this case. It appears to me that there are a few relevant matters which appear to have escaped notice so far. In this connection I will first of all refer to section 216 of the Pakistan Penal Code which is in the following terms "Where any person convicted of or charged with an offence, being in lawful custody for that offence, escapes from such custody, or whenever a public servant, in the exercise of the lawful powers of such public servant, orders a certain person to be apprehended for an offence, whoever, knowing of such escape or order for apprehension, harbours or conceals that person with the intention of preventing him from being apprehended be punished in the manner following, that is to say, if the offence for which the person was in custody or is ordered to be apprehended is punishable with death, he shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine ; if the offence is punishable with transportation for life, or imprisonment for ten years, he shall be punished with Imprisonment of either description for a term which may extend to three years, with or without fine ; and If the offence is punishable with imprisonment which may extend to one year and not to ten years, he shall he punished with imprisonment of the description provided for the offence for a term which may extend to one‑fourth part of the longest term of the imprisonment provided for such offence, or with fine, or with both. Offence' in this section includes also any act or omission of which a person Is alleged to have been guilty out of British India which, if he had been guilty of it in British India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or under the Fugitive Offenders Act, 1881, or otherwise, liable to be apprehended or detained in custody in British India, and every such act or omission shall, for the purposes of this section be deemed to be punishable as if the accused person had been guilty of it in British India. Exception.‑This provision does not extend to the case in which the harbour or concealment is by the husband or wife of the person to be apprehended." The section aims at punishing a person who has been guilty of harbouring a person who has escaped from custody or one whose apprehension has been ordered. The punishment for harbouring has been graded according to the severity of the punishment that can be imposed on the person who has been harboured, If the offence was punishable with death, the person who harboures shall be punished with imprisonment of either description which may extend to seven years and shall also be liable to fine while punishment prescribed for the person who harbours a person against whom the charge was of an offence punishable with transportation for life or imprisonment for ten years is imprisonment of either description which may extend to three years with or without fine. If the expression "and shall also be liable to fine" does not make the imposition of fine imperative it will have to be held that the law‑makers responsible for bringing the Penal Code on the statute‑book had in the same section of the Code used two different expressions in one section to express the same thing saying at one place "and shall also be liable to fine" and at the other "with or without fine". A law maker is not precluded by any law or rule from using in the same section of a statute two expressions to denote the same thing, but before the intention of using the different expressions in the same section to describe the same thing is inferred, evidence in support of it has to be weighty. I can think of no reason why if the expressions "and shall also be liable to fine" and "with or without fine" meant precisely the same thing one expression was used at one place in section 216 of the Penal Code and the other at another especially as the authors of the Penal Code did not think that the use of the same expression at more places than one in the sane section should be avoided as is clear from the fact that they used the expression "with or without fine" at three places in section 221 of the Penal Code and at two places in section 222 of that Code.

10. There is yet another thing which supports my view that the expression "and shall also be liable to fine" when occurring in the Pakistan Penal Code meant that the passing of a sentence of fine is obligatory. Here I allude to the language used in section 115 of the Code and the illustration attached to it which are copied below "Whoever abets the commission of an offence punishable with death or transportation for life, shall, if that offence be not committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine ; "and if any act for which the abettor is liable in consequence of the abetment, and which causes hurt to any person, is done, the abettor shall be liable to imprisonment of either descrip tion for a term which may extend to fourteen years, and shall also be liable to fine." Illustration. "A instigates B to murder Z. The offence is not committed. If B had murdered Z he would have been subject to punishment of death or transportation for life. Therefore A is liable to imprisonment for a term which may extend to seven years and also to a fine; and, if any hurt is done to Z in consequence of the abetment, he will be liable to imprisonment for a term which may extend to fourteen years, and to fine." It will be seen that the illustration says that the punishment of one who has abetted an offence punishable with death or transportation for life but the offence has not been committed shall be imprisonment which may‑ extend to seven years and also a fine. In the illustration it is said that the abettor shall be liable to imprisonment and to a fine and it is obvious that the meaning of the word "liable in the illustration is not that the punishment may or may not be imposed because if that were the meaning it would be meaningless to prescribe a punishment in the body of the section. Moreover, it cannot escape notice that while prescribing punishment for the person who abetted an offence punishable with death or transportation for life the law‑makers said in ‑ section 115 of the Penal Code that the offender shall be liable to imprisonment of either description which may extend to fourteen years and shall also be liable to fine. If the word " liable " were intended to mean that the punishment mentioned may or may not be imposed, the result would be that if a person abetted an offence punishable with death or transportation for life but no steps had been taken towards the commission of that offence he must receive a sentence of imprisonment to which fine could be added, but if the person abetted did something towards the commission of the offence abetted and happened to cause hurt to the intended victim the conviction of the abettor need not entail either the punishment of imprisonment or that of fine. This result is so grotesque that it would be doing the authors of the Penal Code unforgive able injustice to say that they intended it.

11. One thing that it is possible to say against the inter pretation mentioned above is that under section 302 or section 397 of the Penal Code a person sentenced to death must also receive a sentence of fine and it could not have bier, intended that a person who earl been directed to lose his life should also be directed to pay a fine. A sentence of fire falls on the heirs of the person sentenced if his sentence of death is executed, but evidence of this intention of visiting, in some measure at least, the ins of the father on the son, was not uncommon in the Penal Code as originally enacted as one finds that certain offences could be visited with confiscation of the entire property of the offender. It is true that about sip decades after its becoming law in 1860, the Penal Code was amended and the punishment of confiscation of the property of the offender was taken out of the list of punishments that could be imposed, but there can be no escape from the inference that the authors of the Penal Code did not mind if the punishment for a crime had repurcussions of a financial nature on the heirs of the offender.

12. It is for the reasons that I have given in the last five paragraphs that my conclusion is that the expression "and shall also be liable to fine" when it occurs in the Pakistan Penal Code means that the passing of a sentence of fine in addition to the other sentence is absolutely necessary. 1 might add that what I have said applies to the Pakistan Penal Code and not to the other laws in which the expression "and shall also be liable to fine" occurs because I have not considered the language used in other statutes on the interpretation of which language alone can the question be properly decided.

13. The reference by the District Magistrate, Lahore, having been held to be' without force, I proceed to consider what action should be taken. As already mentioned, the learned Additional Sessions Judge has directed that the accused should be re‑tried but on consideration of the whole case I am of the view that the learned Additional Sessions Judge, instead of directing a re‑trial, should dispose of the case himself. In case he came to the conclusion that the conviction of the accused could have made such alteration in the sentence passed as would have made it conform to the provisions of law that were in his view applicable. The re‑trial of the accused could not in the circumstances of the case but be a cause of waste of public time and money and unnecessary worry to the accused. The case being before this Court, there is nothing to prevent it from passing an appropriate order. The order of the learned Addi tional Sessions Judge, to the effect that the accused be re‑tried, is vacated with the result that the appeal of the accused stands restored. I am of the view that instead of the case being sent to the Additional Sessions Judge for disposal it should be disposed of here.

14. The prosecution case was that the accused had broken Into the house of Khan Muhammad situate in Azad Street, Fateh Sher Road, Lahore, on the night between the 20th and 21st of January 1960, but before tie could carry out his evil design he was spotted and caught soon thereafter. The statement of Khan Muhammad (P. W. 1) is that when he tried to catch the intruder there was grappling between them and when on his alarm people were seen coming to his help the accused tried to jump from the roof of the house of the witness to that of one of the neighbours but as his jump fell short he fell into the street and could not get up on account of the resultant injuries. This statement of Khan Muhammad (P. W. 1) was corroborated by the evidence of Aurangzeb (P. W. 2), a nephew of Khan Muhammad, as well as by that of Muhammad Ashiq (P. W. 3) and Jamal Din (P. W. 4.), both of whom are his neighbour. The medical examination of the accused, conducted on the 21st of January 1960, showed that he had some injuries on his person one of which was the fracture of the left forearm. The statement of the doctor, who examined him, shows that the injuries on the person of the accused were the result of a fall from some height. The case set up by the accused was that he had gone to the house of Khan Muhammad (P. W. 1) on his invitation for gambling but when Khan Muhammad lost Rs. 500 to him there was grappling between them and the raising of a false alarm by Khan Muhammad and the result was that a false case was set un. No defence witness was produced to support the plea of the accused as his two defence witnesses merely said that he was a man of good character. The prosecution evidence about the incident is reliable and as it established an offence of house breaking by night against the accused, who was proved to have been sentenced to nine months' rigorous imprisonment under section 457 of the Pakistan Penal Code by a Magistrate of the First Class at Okara in the District of Montgomery, which conviction had not been set aside, and indeed having pleaded guilty to the charge the accused had not questioned his conviction by means of an appeal, the conviction of the accused under section 457/75 of the Pakistan Penal Code was entirely justified and is upheld. The sentence passed by the learned trial Magistrate on the accused is modified to this extent only that he shall suffer rigorous imprisonment for three years and a half and shall also pay fine of Rs. 50 default in payment of which will entail further rigorous imprisonment for three months. The direction of the learned Magistrate regarding the surveillance of the accused by the police after his release shall stand. A. R. CHANGEZ, J. ‑I agree. A. H. Sentence modified.