PLJ 2022 Cr.C. 1543 (DB)
Criminal Procedure Code, 1898 (V of 1898)--
----S. 426--Pakistan Penal Code, (XVL of 1860), Ss. 53/334/337-F(vi)/ 337-A(i) & 337-N(2)--Short sentence--The intention of legislature to have included cases relating to hurt entailing punishment of Daman in non-obstante clause as contained in s, 337-N(2) PPC--Held: When an accused is held guilty by a court of competent jurisdiction on basis of evidence so led at trial, initial presumption of innocence simply stands vanished--Sentence awarded to him is short one and there is no likelihood of decision of main appeal in near future--The pendency of his appeal, there is very possibility that, before decision of his appeal, he would have undergone his entire sentence--Petition partially allowed.
[Pp. 1548 &1549] A, B & C
2019 SCMR 516; 2007 SCMR 246 ref.
Ch. Shakir Ali, Advocate for Appellants.
Mr. Muhammad Ali Shahab, Deputy Prosecutor General State.
Rana Muhammad Nadeem Kanjoo, Advocate for Complainant.
Date of hearing: 5.7.2022.
PLJ 2022 Cr.C. 1543 (DB)
[Lahore High Court, Multan Bench]
Present: Sardar Muhammad Sarfraz Dogar and Shakil Ahmad, JJ.
TALIB HUSSAIN and another--Appellants
versus
STATE and another--Respondents
Crl. A. No. 181 of 2022, Crl. Misc. No. 1 of 2022, decided on 5.7.2022.
Order
Crl. Misc. No. 01 of 2022
This is a petition filed under Section 426 of Cr.PC by Talib Hussain and Muhammad Hussain petitioners/convicts seeking suspension of execution of sentence awarded to them by learned Additional Sessions Judge, Kabirwala through judgment dated 17.02.2022, whereby they were convicted and sentenced as under:-
TALIB HUSSAIN:-
Ø “Convicted under Section 337F(vi) of PPC and sentenced to undergo seven years R.I as ta’zir and to pay daman amounting to Rs. 50,000/-.
MUHAMMAD HUSSAIN:-
Ø “Convicted under Section 337A(i) of PPC and sentenced to undergo two years R.I as ta’zir and to pay daman amounting to Rs. 25,000/-on two counts.
Sentences awarded to the petitioners were ordered to be run concurrently.
2. Learned counsel for petitioners/convicts submits that sentence awarded to petitioner Muhammad Hussain is short one and there is no likelihood of the fixation of main appeal, in near future, therefore, he is entitled to be released on bail by suspending his sentence. Learned counsel for the petitioners while arguing his case qua petitioner Talib Hussain contended that as per the provisions of Section 337-N(2) of PPC only the sentence of ‘arsh’ could have been awarded by learned trial Court and petitioner Talib Hussain could have been awarded the sentence of imprisonment as ta’zir only if he was found to be previous convict, habitual, hardened, desperate or dangerous criminal and the offence committed by him was either in the name or on the pretext of honour. According to learned counsel for petitioners, nothing was available on the record to show that case of petitioner Talib Hussain fell within the category of offenders as hinted in subsection (2) to Section 337-N of PPC. It was, therefore, concluded that since sentence of imprisonment awarded to petitioner Talib Hussain was illegal, he is entitled to be released on bail by suspending his sentence.
3. On the other hand, learned Deputy Prosecutor General duly assisted by learned counsel for the complainant has opposed the contention of the learned counsel for petitioners and argued that provisions of Section 337-N(2) of PPC are only applicable where sentence of ‘arsh’ was provided under the provisions of various sections of Chapter XVI of PPC. According to learned DPG, petitioner Talib Hussain was convicted and sentenced under Section 337F(vi) of PPC that entails punishment of ‘daman’ and imprisonment of either description for a term which may extend to seven years as ta’zir. According to learned DPG, since provisions of Section 337F(vi) of PPC do not provide punishment of ‘arsh’, the provisions of Section 337-N(2) of PPC are not applicable and learned trial Court, in its discretion, rightly sentenced the petitioner Talib Hussain to undergo imprisonment of seven years as provided under section 337 F(vi) of PPC. It has further been argued that sentence awarded to Talib Hussain cannot be counted as short sentence, therefore, he is not entitled to grant of relief claimed.
4. Heard learned counsel for the parties, learned Deputy Prosecutor General and perused the record with their able assistance.
5. Before taking up the legal proposition so argued by learned counsel for petitioners and the counter argument of learned DPG, relevant statutory provisions clinching the moot point are required to be reproduced in the first place.
“Section 53 of PPC. Punishments.--The punishment to which offenders are liable under the provisions of this Code are:
Firstly, | Qisas; | Eightly, | Imprisonment which is of two descriptions namely:-- (i) Rigorous i.e., with hard labour; (ii) Simple |
Secondly | Diyat; |
| |
Thirdly, | Arsh; |
| |
Fourthly, | Daman; |
| |
Fifthly, | Ta'zir; |
| |
Sixthly, | Death; | Ninthly | Forfeiture of property. |
Sevently | Imprisonment for life | Tenthly | Fine" |
“Section 299 of P.P.C. Definitions. In this Chapter, unless there is anything repugnant in the subject or context,
(a)………..
(b) “arsh” (ارش) means the compensation specified in this Chapter to be paid to the victim or his heirs under this Chapter;
(c)…………..
(d) “daman “ (ضمان) means the compensation determined by the Court to be paid by the offender to the victim for causing hurt not liable to arsh;
(e)……………”
“Section 337-F of P.P.C. Punishment of Ghayr-jaifah.-Whoever by doing any act with the intention of causing hurt to any person, or with the knowledge that he is likely to cause hurt to any person, causes--
(i)……..
(ii)…….
(iii)……
(iv)……
(v)…….
(vi) munaqqillah to any person, shall be liable to daman and may also be punished with imprisonment of either description for a term which may extend to seven years ast a ’zir .”
“Section 337-N of P.P.C. Cases in which qisas for hurt shall not be enforced.
(1)………..
(2) Notwithstanding anything contained in this Chapter in all cases of hurt, the Court may, having regard to the kind of hurt caused by him in addition to payment of arsh , award ta’zir zir to an offender who is a previous convict, habitual or hardened, desperate or dangerous criminal or the offence has been committed by him in the name or on the pretext of the honour.”
“Section 337-Y of P.P.C. Value of daman.
(1) The value of daman may be determined by the Court keeping in view--
(a) the expenses incurred on the treatment of the victim;
(b) loss or disability caused in the functioning or power of any organ; and
(c) the compensation for the anguish suffered by the victim.
(1a) the daman may be made payable in lump sum or in installments spread over a period of five years from the date of final judgment;
(2) Where 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 in the same manner as if sentenced to simple imprisonment until daman is paid in full or may be released on bail if he furnished security of surety equivalent to the amount of daman to the satisfaction of the Court or may be released on parole as may be prescribed in the rules.”
(Emphasis supplied)
From bare perusal of above hinted provisions of law, we are constrained to observe and resolve that separate and distinct punishment of ‘daman’ has been provided under Section 53 of PPC and that has been defined as compensation determined by Court to be paid by the offender to the victim for causing a hurt not liable to ‘arsh’. The definition contained in Section 299(b) of PPC clearly draws a distinction between two punishments viz., ‘arsh’ and ‘daman’. Undeniably, the provisions of Section 337-F(vi) of PPC provide the punishment in shape of payment of daman besides imprisonment of either description for a term which may extend to seven years as ta’zir. The use of word “shall” before the punishment ‘daman’ reflects that a person convicted under Section 337-F(vi) of PPC would be punished by awarding the principal punishment of daman and discretion has been left with the Court to also award the punishment of imprisonment that may extend to seven years as ta’zir. Non-obstante of clause as contained in subSection 2 to Section 337-N of PPC contemplates that Courts in all hurt cases may pass sentence for imprisonment as ta’zir while awarding principal sentence of arsh provided that offender was found to be previous convict, habitual, hardened, desperate or dangerous criminal or had committed offence in the name or on the pretext of honour. Undeniably, as per the provisions of Section 337-F(vi) of PPC, no punishment of arsh has been provided and principal sentence as contemplated under Section 337-F(vi) of PPC is ‘daman’, therefore, provisions of Section 337-N(2) of PPC would not be applicable and learned trial Court was competent to award sentence of imprisonment which may extend to seven years as ta’zir. As per the provisions of section 337-N (2) of PPC in all cases of hurt under Chapter XVI of PPC, Courts besides awarding the punishment of arsh can only award ta’zir to an offender who is a previous convict, habitual or hardened, desperate or dangerous criminal or the offence has been committed by him in the name or on the pretext of the honour, however, in cases of hurt where punishment of arsh has not been provided, it would be discretion of Court to have awarded punishment of imprisonment as prescribed by the section of law falling in Chapter XVI of PPC. There is no cavil with the proposition that Chapter XVI of PPC relating to hurts provides punishments of diyat, arsh or daman in addition to punishment of ta’zir by providing certain sentences of imprisonment qua different kinds of hurts. The non-obstante clause of sub-section (2) to Section 337-N of PPC would not be applicable qua kinds of hurt where no punishment of arsh has been provided and the offenders who are tried for an offence not entailing the sentence of arsh can be dealt with in accordance with the relevant provisions of substantive law. Had it been the intention of legislature to have included the cases relating to hurt entailing punishment of daman in non-obstante clause as contained in subSection 2 to Section 337-N of PPC, it could have conveniently been added after the word ‘arsh’ as hinted in subSection 2 to Section 337-N of PPC. Admittedly, it has not been done so and merely word ‘arsh’ has been mentioned in the said section of law by excluding the offences under which punishment of daman has been provided from the rigours of Section 337-N(2) of PPC. No illegality, thus, has been committed by learned trial Court while awarding the sentence of imprisonment under Section 337-F(vi) of PPC. The case law “Abdul Wahab and others v. The State and others” (2019 SCMR 516) so relied upon by learned counsel for petitioners is clearly distinguishable from the facts & circumstances of the instant case. In that case accused were convicted and sentenced under the provisions of Section 334 of PPC and were sentenced to rigorous imprisonment for five years besides payment of arsh equal to diyat in equal shares to the victim. Section 334 of PPC provides punishment for itlaf-i-udw and the principal sentence as per the provisions of Section 334 of PPC is ‘arsh’ and an offender may be punished with imprisonment of either description for a term which may extend to ten years as ta’zir. Since Section 334 of PPC provides sentence of arsh, provisions of Section 337-N(2) of PPC would be fully applicable. Hence, the case law so relied upon by learned counsel for petitioners has to proceed on its own peculiar facts and same has no bearing on the facts and circumstances of instant case. Petitioner/convict Talib Hussain was specifically named in the FIR as well as in the private complaint and upon conclusion of investigation he was found involved in the commission of alleged crime. Learned trial Court after recording prosecution evidence held petitioner Talib Hussain guilty and proceeded to convict and sentence him accordingly. It is by now a settled principle of law that when an accused is held guilty by a Court of competent jurisdiction on the basis of evidence so led at trial, initial presumption of innocence simply stands vanished. Reliance in this regard may safely be placed upon the case “Makhdoom Javed Hashmi
vs. the State” (2007 SCMR 246). Learned counsel for the petitioner failed to point out even an obvious legal infirmity or perversity in the impugned judgment, reasonably suggesting its reversal as final outcome of main appeal at the end of day. No case of suspension of sentence to the extent of petitioner Talib Hussain is made out.
6. Taking up the case of petitioner Muhammad Hussain, we are to observe in the first place that sentence awarded to him is short one and there is no likelihood of decision of the main appeal in near future. In case, the petitioner Muhammad Hussain is not released on bail during the pendency of his appeal, there is every possibility that, before the decision of his appeal, he would have undergone his entire sentence. Furthermore, it would certainly be impossible to compensate the petitioner for his detention in jail if ultimately he is acquitted after having served out his entire sentence. In these circumstances, coupled with the principle of safe administration of justice, it seems appropriate to order the release of petitioner Muhammad Hussain by way of suspension of his sentence.
7. The upshot of above discussion is that, instant petition to the extent of petitioner Muhammad Hussain is allowed, in consequence whereof, sentence awarded to him by learned trial Court is suspended and he is directed to be released on bail subject to his furnishing bail bonds in the sum of Rs. 50,000/-(rupees fifty thousand only) with one surety in the like amount to the satisfaction of the Deputy Registrar (Judicial) of this Bench. Instant petition to the extent of petitioner namely Talib Hussain stands dismissed. Petitioner Muhammad Hussain is directed to appear before this Court on each and every date of hearing in the main appeal.
(K.Q.B.) Petition allowed
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