P L D 1969 Lahore 48 (PLP)

6. The only merit of this argument is ingenuity, but it has no legs to stand upon. There is no question of a choice between "payment of fine" and "suffering imprisonment in lieu thereof."

7. Section 387 of the Code of Criminal Procedure provides the manner in which section 386 is enforced. Section 388 provides for the manner in which the sentence of fine is to be executed by a Court. Two methods are provided for the recovery‑ (a) by attachment and sale of any movable property belonging to the offender, and (b) authorising the Collector of the District to realise the amount by execution according to civil process against movable or immovable property, or both, of the defaulter.

8. The proviso to section 386(1) further lays down that if the convict has undergone the whole of the imprisonment awarded to him in default of payment of fine, the warrant for the recovery of the fine shall not be issued unless the Court records special reasons for doing so. In other words, the under going of sentence in default of payment of fine is not 'in lieu of the fine' and does not absolve the defaulter from the liability to pay the fine even if he has suffered the imprisonment. The question of any choice, as already stated, therefore, does not arise, and if there is any choice it is not with the defaulter but with the Court which alone has to decide whether the warrant for the recovery of fine be issued in spite of the convict having undergone the sentence inflicted for default. This disposed of one basis of the argument of the learned counsel.

9. The sentences which a Magistrate of the First Class may pass are Lald down under section 32 of the Cr. P. C. and consist of‑ (a) imprisonment including solitary confinement, (b) fine, (c) whipping, A Magistrate has also the power to combine any of these sentences under the law. In common legal parlance these are known as substantive offences. Section 33 empowers a Magistrate to "award such terms of imprisonment in default of payment of fine as is authorised by law in case of such default".

10. The bare reading of these two sections leaves n manner of doubt that the direction to suffer imprisonment in default of payment of fine is not a `sentence' for the offence, properly so called. The "sentences" are those which have been described in section 32 and they do not include imprisonment in default of payment of fine. Since that is so, such a direction would not warrant the adding of the term of imprisonment in default of payment of fine to the sentence awarded for the offence for the purposes of section 408.

11. Section 35 of the Code of Criminal Procedure authorises a Court to sentence a person, convicted at one trial of two or more offences, to the several punishments prescribed therefore which such Court is competent to inflict. These sentences shall run concurrently unless the Court directs them to run con secutively. Subsection (3) of section 35 provides that‑ "For the purpose of appeal, the aggregate of consecutive sentences, passed under this section in case of conviction for several offences at one trial shall be deemed to be a single sentence."

12. There is no similar provision in section

33. If the Legislature wanted to achieve the same object in the case of imprisonment in default of fine, there would have been nothing easier than to have used words in section 33 to the same effect as have been used in section 35(3). It is axiomatic that nothing is to be added to a Statute, and words are not to be read into it. "A case not provided for in a Statute is not to be dealt with merely because there seems no good reason why it should have been omitted, and the omission consequently to have been of unintentional" has been quoted as the gist of the decision in Lloyds Bank v. Elliot ((1947) I All E R 79), by Maxwell in his book Interpretation of Statutes, Eleventh Edition, at page 12 under the heading "Omissions not to be Lightly Inferred". The doctrine, that Statutes must be literally construed is therefore a bar to reading the words of section 35(3) in section 33.

13. There is still another aspect of the matter which may be taken into consideration. The fine imposed by a Court is a punishment for the offence committed, and is, therefore, related directly to the conviction for it. The imprisonment to be suffered in a case where the fine is not paid is a punishment not for the offence but for the failure to obey the order of the Court so far as it related to such payment, it may metaphorically be equated with punishment for contempt of the Court. In fact this punishment is for such contempt as is inherent in the refusal to pay the fine ordered by it. Since such an imprison ment is not directly related to the conviction it cannot be added to that period of punishment which is so related.

14. This view is further supported by the words of section 66 of the Pakistan Penal Code which lays which lays down that‑ "The imprisonment which the Court Imposes in default of payment of a fine may be of any description to which the offender might have been sentenced for the offence." There is a clear distinction between the two forms of imprison ment and the one referred to earlier is not related to the offence committed, as in the latter. The same conclusion can be derived from the language of section 67 of the P. P. C.

15. Similarly sections 68 and 69 of the Code which provide for the determination of the imprisonment in default of payment of fine make it doubly clear that the imprisonment in default of fine (a) is not related to the sentence, and (b) is not in lieu of the fine.

16. This appeal therefore lies to the Sessions Judge and not to this Court and shall be returned for being presented to the proper forum. Orders accordingly. A. E./K. B. A. Appeal returned for proper presentation.