Criminal Courts are established for dispensation of justice, under the law. Likewise the Special Courts or the Tribunals are also established in order to try certain offences under the provisions of their respective statutes. The proceedings before courts are regulated by the statutory provisions. Broadly speaking the trial can be divided into two kinds (1) Summary trial (2) regular trial. For holding both kinds of trial, different procedures have been provided by law. Regular trial can be held under the law by more than one class of Court i.e. Court of Sessions and that of Magistrate. Holding a person, accused of an offence, [under general, local or special law], guilty of the charge for committing an offence either on pleading or making of confession of his guilt or on the conclusion of a thorough trial by a Court is known as conviction in the legal parlance. Concomitantly, the conviction is followed by imposition/awarding of the punishment prescribed under the relevant law for such offence or offences by a trial Court. It may be relevant to point out that while enacting “The Punjab Sentencing Act 2019(XXXIV of 2019)”, the Provincial Legislature has enumerated various factors, which may be considered to improve consistency while sentencing by the courts. According to Section 53 PPC, an offender, upon having been found guilty of the charge may be imposed upon any one or more, out of the following punishments i.e. Qisas, Diyat, Arsh, Daman, Death either as Qisas or Ta'zir, Imprisonment for life, (Imprisonment is of two descriptions, namely:-- (i) Rigorous, i.e., with hard labour (ii) Simple), Forfeiture of property and Fine by a court of competent jurisdiction. Under the Hudood Laws, the punishment of whipping and flogging was also permissible. Furthermore, Chapter XVI PPC, deals with the offences affecting human body, Section 299(b) PPC provides that “arsh" means the compensation specified in that Chapter to be paid to the victim or his heirs. Similarly under clause (d) of the ibid Section, “Daman” has been defined as the compensation determined by the Court to be paid by the offender to the victim for causing hurt not liable to arsh. Likewise under clause (e) of the same provision, definition of “Diyat” has also been given, as the compensation specified in Section 323 [value of Diyat] payable to the legal heirs of the victim. It may also be beneficial to state that the term “Ta’zir” under clause (i) has been defined as a punishment other than Qisas, Diyat, Arsh or Daman.
It is important to point out that the period of 03 years prescribed for the payment of diyat, arsh and daman, by the above referred judgment of this Court, had later-on been extended up to 05 years through an amendment i.e. Pakistan Penal Code (amendment) Act, 2010 (Act XV of 2010 dated 22.06.2010). It is further observed that the moment, an order under Section 337-Y PPC permitting the convict to pay the requisite amount either in installments or in lumpsum by the Court, is passed, by implications, the convict is barred from challenging his conviction by way of appeal as no-body can be allowed to approbate and reprobate in the same breath, rather he would be bound by his previous stance.
Furthermore, under Section 412 Cr.P.C, except on the ground of its legality, no appeal is maintainable against a judgment of conviction, passed upon pleading guilty of the charge, by a convict. The seeking of a permission by a convict to pay Diyat, Arsh or Daman, while invoking the power of a court, which has passed the final judgment, in-fact amounts to accepting his conviction and sentence, foregoing his right of appeal. Upon passing an order by a court under Section 337-Y(1a) PPC, allowing prayer of the convict, the judgement of conviction attains finality. The criminal Court after passing a final judgment becomes functus officio. Such court has been vested with the power under Section 337-Y PPC read with Rule 11 of Rules 2007 to pass an order for giving effect to its own judgment.
A criminal Court may afford an opportunity of hearing to a victim or heirs of victim as the case may be, while passing the order on the request of a convict for payment of amount in installments to eliminate any possibility of maneuver, pretention or misrepresentation regarding financial status of an unscrupulous convict. Furthermore, Section 337-Y(2) PPC read with rule 11 of Rules 2007, manifest that in case a convict fails to pay daman or any part thereof within the period specified in sub-section (1a), the convict may be kept in jail and dealt with in the same manner as if he has been sentenced to simple imprisonment until daman is paid in full or he may be released on bail upon furnishing his security or surety equivalent to the amount of daman to the satisfaction of the court or may be released on parole as prescribed in the rules.
In addition to above, it is a fundamental right of every person, accused of an offence under Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973 to have a fair trial to be held by a properly and legally constituted Court or Tribunal. The appeal is a statutory right of an aggrieved individual or authority and same cannot be exercised on any analogy unless expressly conferred upon under some law.
Section 382-A Cr.P.C makes it clear that a convict who is awarded a sentence of imprisonment less than one year, upon furnishing his bail bonds to the satisfaction of the trial Court for his appearance as the Court may direct, his sentence of imprisonment shall be postponed and shall not be executed until the expiry of period for making an appeal against such conviction and sentence and if an appeal is made within that time, until the sentence of imprisonment is confirmed by the appellate Court. The submission of bail bonds by a convict for the postponement of his sentence enabling him to file an appeal, in-fact amounts to surrendering before the Court.
The provision of Section 426 Cr.P.C. clearly deals with a situation where the case of a convict is not covered by Section 382-A Cr.P.C. and the convict thus being in custody, pending his appeal, can be released on bail by way of suspension of his sentence. The above discussion leads this court to conclude that a convict either can file an appeal against his conviction and sentence being on bail under Section 382-A Cr.P.C or he can seek his release on bail under Section 426 Cr.P.C during the pendency of his appeal, while being under custody. It is, therefore, held that unless convict is either on bail by way of postponement of his sentence in terms of Section 382-A Cr.P.C. or he is confined in terms of the provisions of Chapter XXVIII Cr.P.C.(of execution), no appeal against the judgment of conviction can be entertained. Further, in absence of any express provision of law, it is not lawful for a Court to allow the convict to deposit such amount of “Diyat, Arsh and Daman” under protest for his release except as required under Section 337-Y(1a) PPC and any departure therefrom would amount to act without lawful authority, thus not sustained in the law.
Crl. Misc.-Crl. Misc (Applications)
1229-M-11
Riaz Hussain VS
State
Mr. Justice Anwaarul Haq Pannun
0 Comments