Fardad Ahmed Vs Muhammad Zafar and another

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

CIRCUIT COURT CHITRAL

(Judicial Department)

Cr.M (Q.P) No.2-C/2021 Fardad Ahmed

V.

Muhammad Zafar and another

Present: Qazi Ishaq, Advocate for petitioner. Mr. Haq Nawaz Khan, Addl: A.G. for State.

Mr. Momin-ur-Rahman, Advocate for Respondent No.1.

Date of hearing: 29.04.2026

JUDGMENT

Dr. Khurshid Iqbal, J. -

1.Through this petition filed u/s 561-A of the Criminal Procedure Code, 1898 (Cr.P.C), the petitioner has challenged the order dated 30.06.2021, rendered by the learned Sessions Judge, Chitral Lower, whereby his application for execution of the judgment dated 17.12.2018, passed by this Court in Criminal Appeal No.104-M/2017, arising out of the judgment dated 10.04.2017, passed by the learned trial Court, in case FIR No.536, dated 15.07.2013, registered under sections 302, 324, 337-A(i), 337-F(ii), 109, 34 PPC, at Police Station Chitral, to the extent of recovery of the compensation amounting Rs.500,000/- (rupees five hundred thousand) held to be recoverable as arrears of land revenue u/s 544-A, Cr.P.C. from the respondent/convict, or in default to undergo six months S.I, was dismissed.

2.On the report of the present petitioner/complainant, the above-mentioned criminal case was registered against respondent No.1, Muhammad Zafar, along with his co-accused. On conclusion of the trial, respondent No.1 was convicted by the learned trial Court, vide its judgment dated 10.04.2017, in the following terms:

Sabz Ali/* (S.B) Justice Dr. Khurshid Iqbal

(i)u/s 302(b) P.P.C. for, committing murder of Sajjad Ahmad to suffer life imprisonment. He was also held liable to payment of Rs.500,000/- as compensation u/s 544-A, Cr.P.C to LRs of deceased, or in default thereof to further undergo six months

S.I.

(ii)u/s 324 P.P.C. to undergo one year R.I, with fine of Rs.10,000/-, or in default thereof to undergo S.I for 30 days.

(iii)u/s 337-A(i) for inflicting Shaja-e-khafifa to injured Masood, to pay Rs. Rs.20,000/- as Daman to injured.

(iv)u/s 337-F(ii) P.P.C for inflicting injuries to Shayan and Naveed, to pay Rs.30,000/- as Daman to each of the injured.

3.Against the said judgment of the learned trial Court, the respondent/convict filed Cr.A No.104-M/2017, while for enhancement of the sentence of the respondent/convict, the present petitioner/complainant filed Cr.R No.32-M/2017. Vide consolidated judgment dated 17.12.2018, the criminal revision for enhancement of sentence filed by the petitioner/ complainant was dismissed by this Court. The Cr.A No.104- M/2017, filed by the respondent/accused, was partially allowed. Resultantly, his conviction u/s 302(b) PPC was converted into one u/s 302(c) PPC, and his sentence of imprisonment was reduced to ten (10) years, with the benefit of section 382-B Cr.P.C. The remaining sentences awarded to the respondent/accused, including those for attempted murder and hurts caused to the injured witnesses, as well as the compensation payable u/s 544-A Cr.P.C., were maintained. All the sentences were ordered to run concurrently.

4.After serving out the substantive sentences of imprisonment, the respondent/convict has deposited the amount of daman for payment to the injured persons, Masood, Shayan and Naveed. He has also undergone six months’ simple imprisonment in default of payment of compensation of Rs.500,000/- payable to the legal heirs of the deceased u/s 544- A Cr.P.C. and then he has been released from jail. The petitioner/complainant filed an application for execution of the judgment to the extent of recovery of the said amount of Rs.500,000/- u/s 544-A Cr.P.C. However, the same was dismissed by the learned trial Court (Sessions Judge, Chitral Sabz Ali/* (S.B) Justice Dr. Khurshid Iqbal

Lower), vide order dated 30.06.2021. Hence, the instant petition.

5.Arguments heard. Record perused.

6.In the above-mentioned criminal appeal, this Court has already held that the amount of compensation is recoverable as arrears of land revenue within the meaning of Section 544-A Cr.P.C., in default whereof, the respondent/convict was to undergo six months’ simple imprisonment. The petitioner’s application was dismissed by the learned trial Court on the ground that the respondent/accused has already undergone six months’ simple imprisonment in default of payment and, therefore, directing him to pay the compensation would amount to double jeopardy. Thus, the sole question for determination before this Court is whether, despite having undergone six months’ imprisonment in default of payment of the compensation, the respondent/accused can still be compelled to pay the said amount as arrears of land revenue. For ready reference, Section 544-A Cr.P.C. is reproduced hereunder:

544-A. Compensation to the heirs of the person killed, etc.-- (1) Whenever a person is convicted of an offence in the commission whereof the death of, or hurt, injury, or mental anguish or psychological damage to, any person is caused, or damage to or loss or destruction of any property is caused, the Court, shall, when convicting such person; unless for reasons to be recorded in writing it otherwise directs, order the person convicted to pay to the heirs of person whose death has been caused, or to the persons hurt or injured or to the person to whom mental anguish or psychological damage has been caused, or to the owner of the property damaged, lost or destroyed, as the case may be, such compensation as the Court may determine having regard to the circumstances of the case.

(2)The compensation payable under subsection (1) shall be recoverable as if it were an arrear of land revenue and the Court may further order that, in default of payment or recovery as aforesaid the person ordered to pay such compensation shall suffer imprisonment for a period not exceeding six months, or if it be a Court of the Magistrate of the Third Class, for a period not exceeding thirty days.

(3)The compensation payable under subsection (1) shall be in addition to any sentence which the Court may impose for the offence of which the person directed to pay compensation has been convicted.

Sabz Ali/* (S.B) Justice Dr. Khurshid Iqbal

(4)The provisions of subsections (2-B), (2-C), (3) and (4) of section 250 shall, as far as may be, apply to payment of compensation under this section.

(5)An order under this section may also be made by an appellate Court or by a Court when exercising its powers of revision.

A bare reading of the above reproduced section 544-A Cr.P.C. reflects that the same is in addition to other sentences/punishments. This provision deals with the award of compensation, whereby the Court, at the time of conviction, orders the accused to pay an amount to the legal heirs of the deceased. It is substantive in nature, creating a right in favour of the victims. The default sentence of imprisonment is only a penalty for non-payment and is not equivalent to payment; thus, even after serving out the default imprisonment, the cause, i.e., non-payment, still continues. In other words, the default sentence is merely coercive and penal in character and does not operate as a substitute for payment, nor does it extinguish the liability so created. If recovery of the compensation imposed by the Court is stopped after the accused has served out the default imprisonment, the victim or his legal heirs would get nothing, which would not only defeat the very object of section 544-A Cr.P.C. but would also be against the principles of natural justice. Thus, the provision is mandatory, and undergoing imprisonment awarded in default of payment of compensation does not, by itself, absolve the convict from liability; rather, he remains bound to pay the same, recoverable as arrears of land revenue. This issue has been settled by the august Apex Court in Muhammad Tufail v. Sessions Judge, Attock and 02 others (PLD 2004 SC 89). In the said case, the sole question before the august Apex Court was that since the convict had served out the substantive sentence as well as simple imprisonment in lieu of fine and compensation, whether he was still liable to pay the compensation awarded by the Court. While resolving the question, the august Apex Court, has drawn a line of difference Sabz Ali/* (S.B) Justice Dr. Khurshid Iqbal

between compensation recoverable u/s 544-A Cr.P.C. and fine recoverable u/s 386 Cr.P.C., as under:

After reading the above provisions of law, it is evident from sub section (2) of section 544-A, Cr.P.C., that amount of compensation shall be recoverable as an arrear of land revenue, and in case of default of payment of recovery, the said convict shall suffer imprisonment for a period of not exceeding six months. Subsection (3) of section 544-A, Cr.P.C. further provides that compensation payable under subsection (1) shall be in addition to any sentence which Court may impose for the offence upon the convict. One could find difference 'when the provisions of sections 544-A and 386 of the Criminal Procedure Code are read in Juxtaposition. In case of proviso I of subsection (1) of section 386, if convict has undergone whole of such imprisonment in default of payment of fine, no Court shall issue warrant for the recovery of fine. Under the said proviso option has been given to. the convict either to pay fine or in default of said payment of fine to undergo imprisonment. In case, the convict opts to undergo imprisonment in default to payment of fine then the fine could not be recovered by issuance of warrants of attachment or issuance of warrants to the Collector of the District. Whereas, under section 544-A, Cr.P.C., there is no such proviso whereby such recovery in respect of compensation when awarded could be written off or waived, even if substantive sentences are served out. Provisions of section 544-A, Cr.P.C. are mandatory. Under the said provisions even if convict undergoes imprisonment in default of payment of compensation, then also the said amount of compensation would be recovered as an arrear of land revenue. (underlined supplied)

For ready reference, section 386 Cr.P.C. is also reproduced as under:

386.Warrant for levy of fine.- (1) Whenever an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may-

(a)issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender;

(b)issue a warrant to the Collector of the District authorizing him to realize the amount by execution according to civil process against the movable or immovable property, or both, of the defaulter. Provided that, if the sentence directs that in default of payment of the fine the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant.

(2)The Provincial Government may make rules regulating the manner in which warrants under subsection (1), clause (a), are to be executed, and for the summary determination of any claims made by any person other than the offender in respect of any property attached in execution of such warrant.

(3)Where the Courts issue a warrant to the Collector under sub section (1), clause (b), such warrant shall be deemed to be a decree, and the Collector to be the decree-holder, within the meaning of the Code of Civil Procedure, 1908, and the nearest Civil Court by which any decree for a like amount could be executed shall, for the purposes of the said Code, be deemed to be the Court which passed the decree, and all the provisions of that Code as to execution of decrees shall apply accordingly:

Sabz Ali/* (S.B) Justice Dr. Khurshid Iqbal

Provided that no such warrant shall be executed by the arrest or detention in prison of the offender.

The above-reproduced provision of law relates to payment of fine. Its proviso clearly reflects that if the offender, in default of payment of fine, has undergone the whole period of imprisonment, the Court shall not issue warrants as mentioned in clauses (a) and (b) of subsection (1). It protects the accused from double punishment, but only in respect of fine. Compensation, however, cannot be termed as fine. Rather it is a right created in favour of the victim on the analogy of rehabilitative justice. Needless to say, fine is paid to the State, whereas compensation awarded u/s 544-A Cr.P.C. is payable to the legal heirs of the victim. In Shaheen Tahir v. Superintendent, Central Jail, Faisalabad and another (PLD 2008 Lahore 497), the Court, while dismissing the Intra-Court Appeal, held as under:

Subsection (3) of S.544-A Cr.P.C. provides that compensation shall be in addition to any sentence, which the Court may impose for the offence of which the persons directed to pay compensation has been convicted. Payment of compensation thus shall be treated separately from the substantive sentence or payment of fine. Payment of compensation is a third separate liability on accused. Sentence in lieu of non-payment of compensation under S.544-A Cr.P.C. is separate and in addition to the substantive punishment and punishment in lieu of non- payment of fine.

So, the payment of compensation determined by the Court u/s 544-A Cr.P.C. is mandatory once the accused is held liable by the Court. Even after undergoing the default sentence of simple imprisonment, the liability to pay such compensation is not extinguished or waived. Reliance is placed on Muhammad Hanif v. Abdur Rahman and others (1977 SCMR 471).

7.Needless to say that in respect of the subject compensation, the default sentence of six months’ simple imprisonment has already been undergone by the respondent/ accused. Therefore, he cannot now be taken into custody in default of payment of the compensation. However, the compensation remains recoverable from him as arrears of land revenue if otherwise not secured.

Sabz Ali/* (S.B) Justice Dr. Khurshid Iqbal

8.In view of the above, the impugned order is not legally sustainable. Accordingly, this petition is allowed. The impugned order dated 30.06.2021, passed by the learned Sessions Judge, is set aside. Consequently, the application of the petitioner/complainant for recovery of compensation u/s 544- A Cr.P.C. is allowed. The learned trial Court shall proceed with the matter, in accordance with law, for recovery of the compensation from the respondent/convict, for its payment to the legal heirs of the deceased.

Announced.

..Sd...

JUDGE

Sabz Ali/* (S.B) Justice Dr. Khurshid Iqbal