2008 PLP 111 (SCMR)

TASSADUQ HUSSAIN JILLANI, J.

Petitioner was tried by the learned Special Judge (Offences in Respect of Banks), Lahore in the case registered vide F.I.R. No:32 dated 26-7-1995 under sections 409, 420, 467, 471-A/109, P.P.C. and 5(2) 47, P.C.A. at Police Station F.I.A. C.B.C. Lahore and vide the judgment dated 17-11-2005 he was convicted and sentenced as follows:-- "(i) Under section 420, P.P.C. for 7 years plus fine of Rs.20,000 or in default 171/2 years. (ii) Under section 468, P.P.C. 4 years and fine of Rs.1,00,000 or in default 1 year. (iii) Under section 471, P.P.C. for 3 years fine of Rs.1,00,000 and in default 1 year. There was no mention of section 382-B, Cr.P.C. however, all the sentences ware ordered to be run consecutively."

2. In appeal before the learned High Court petitioner did not challenge the conviction but only prayed that his sentence be reduced to what he had already undergone. Learned counsel for the State did not join issues" on this and, accordingly, vide the impugned judgment dated 20-7-2006 a learned Division Bench partly allowed the appeal and reduced the sentence to the one already undergone by him. While reducing the sentence learned High Court was not only persuaded by the concession granted by the State but also by the fact that petitioner remained incarcerated for more than 7 years and 2 months . So far as the question of fine was concerned, the learned High Court directed that the said sentence of fine shall remain intact and in case of default of payment of fine the sentences in lieu thereof shall run consecutively.

3. Learned counsel for the petitioner submits that since petitioner had not seriously challenged the conviction and as he had 'already undergone more than 8 years and 2 months of substantive sentence the learned High Court should not have directed the sentences in lieu of fine to run consecutively. He added that in the facts and circumstances of this case the said observation/direction is violative of mandatory provisions of sections 64 and 65 of the Pakistan Penal Code. In support of the submissions made learned counsel relied on "Mian Khan v. Government of the Punjab through Secretary Home Department Civil Secretariat Lahore and others" 2005 PCr.LJ 627.

4. Learned Deputy Prosecutor-General submits that having gone through the afore referred provisions of law and precedent case-laws to which reference has been made by petitioner's counsel, he would not oppose the same. The provisions, which govern the sentences to be awarded in lieu of payment of fine are sections 64 and 65 of Pakistan Penal Code which read as under:

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64. Sentence of imprisonment for non -payment of fine.

In every case of an offence punishable with imprisonment as well as fine in which the offender is sentenced to a fine whether with or without imprisonment. And in every case of an offence punishable with imprisonment, or fine or with fine only, in which the offender is sentenced to a fine. It shall be competent to the Court which sentences such offender to direct by the sentence that in default of payment of the fine the offender shall suffer imprisonment for a certain term, which imprisonment shall be in excess of any other imprisonment to which he may have been sentenced or to which he may be liable under a commutation of a sentence.

65. Limit to imprisonment for non payment of fine, when imprisonment and fine awardable.

The term for which the Court directs the offender to be imprisoned in default of payment of a 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.

5. A bare reading of section 65 of the Pakistan Penal Code would show that if the Court directs the offender to be imprisoned for default of payment of fine the said imprisonment cannot exceed 1/4 of the term of imprisonment which is maximum fixed for the offence. In the instant case the sections under which the petitioner stands convicted provided the maximum sentences in terms as follows:-- Penal Section Maximum Sentence of imprisonment in law Sentence of imprisonment awarded by Court in default of payment of fine (i) 420, P.P.C. 7 years 1/2 year (ii) 468, P.P.C. 7 years 1 year (iii) 471, PPC 3 years 1 year

6. The petitioner was tried for more than one offence emanating from the same transaction. Section 71 of the P.P.C. inter alia mandates that where several acts of which one or more than one would by itself or themselves constitute an offence "the offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offences".

7. If sentences awarded in lieu of fine are to run consecutively, they shall exceed more than 1/4 of the maximum sentence provided under section 420 of the Pakistan Penal Code which would be violative of section 71 of the P.P.C. In these circumstances and in view of the fair stand taken by the learned Deputy Prosecutor-General we are inclined to dispose of this petition with the observations that sentences awarded in lieu of payment of fine shall in the facts and circumstances of this particular case run concurrently.

8. This Criminal Petition is disposed of in terms noted above. M.H /A-57/SC Order accordingly.