Fazal Rehman Vs The State etc.

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

PESHAWAR

(Judicial Department)

Writ Petition No. 6004-P/2024.

Date of hearing: 08.10.2025.

M/s. Muhammad Waqar, Farmanullah Silab & Muhammad Sareer Khan, advocates, for the petitioner (s).

Mr. Yasir Khalid, Asstt. AG for the State.

M/s Imtiaz ur Rehman & Batool Rifaqat, advocate, for the respondent(s)

JUDGMENT

SAHIBZADA ASADULLAH, J.- By this

single judgment, this Court proposes to decide the instant constitutional petition as well as the connected Criminal Revision No. 239-P of 2024, as both matters involve a common legal question relating to the determination and payment of Arsh at the rate of one-third of Diyat.

2.Short facts relevant for the disposal of this petition are that the petitioner, Fazal Rehman, was charged in a case vide FIR No. 1388, dated 30.12.2020, registered under section 324/337-D/34 PPC, police station Tehkal, Peshawar. Trial commenced, and on its conclusion, he was convicted under section 324 PPC and sentenced to

undergo seven (07) years RI with a fine of Rs. three hundred thousand rupees. In default thereof, to undergo a further three months' SI. Under Section 337-D PPC, the petitioner was convicted to five (5) years' RI with payment of Arsh @ 1/3rd of Diyat, notified for the year 2023-24, in six (6) installments within a period of three years.

The petitioner assailed the judgment of conviction before this Court in criminal appeal No.

97-P of 2024, which was partially allowed in terms of reducing the sentence of seven years to four years, and five years to four years, awarded under section 324 & 337-D PPC, respectively, while the remaining portion of the judgment remained intact.

Now, the petitioner before this Court is of the view that the alleged offence was committed in the year 2020, whereas the sentence of Arsh was awarded per the Diyat notification of 2023-24, which is against Articles 4, 8, 10-A, 12 of the Constitution of the Islamic Republic of Pakistan, 1973, as well as the settled principle of law. Hence, the instant petition.

In the connected criminal revision petition, the petitioners have called into question the order dated 24.09.2024, passed by the learned Additional

Sessions Judge-IV, Charsadda, whereby, the petitioners were directed to deposit the amount of Arsh & Daman in installments within two years, in case FIR No. 266, dated 30.07.2014, under sections 324, 34, 337-D, 337-F (3), 336, 337-A(i) PPC, registered at Police Station Umarzai, District Charsadda.

Concise facts, leading to filing of the instant revision petition are that the petitioners were charged in the instant case by the complainant Niaz Ali, alleging that when he alongwith his father namely Sarfaraz, was present near his house, the petitioners Falak Niaz and Fakhr-e-Alam, came there and suddenly started firing over them, as a result of which, the complainant and his father sustained firearm injuries. The petitioners, being charged in the instant case, were arrested, challan was submitted against them, they faced the trial, and on conclusion of the trial, were convicted and sentenced to rigorous imprisonment for the charges levelled against them, and were also directed to pay Arsh & Daman to the victims. As the petitioners had undergone the substantial period of conviction and were still behind the bars due to non-payment of Arsh and Daman, so they applied before the

learned trial Court for their release on bail and for depositing the Arsh and Daman amount in light of the section 337-X and 337-Y of the PPC, spread over a period of five years having no immediate source of income, so the learned trial Court while accepting the application vide order dated 23.09.2024, allowed the petitioners to be released on bail, subject to payment of Arsh and Daman as per notification for financial year 2023/24. Being aggrieved by the order dated 23.09.2024, the petitioners filed an application for reconsideration of the ibid order, which was dismissed vide the impugned order, hence, the revision petition.

3.We have heard the respective arguments of learned counsel for the parties and perused the available record.

4.The controversy presented before this Court is neither ordinary in circumstance nor trivial in consequence. It engages fundamental questions concerning the very nature of a legal obligation that arises under Islamic jurisprudence, statutorily recognized and codified in the Pakistan Penal Code.

It also invokes constitutional doctrines of extreme significance, namely, Article 12 of the Constitution of the Islamic Republic of Pakistan. The principal

questions for determination may be succinctly formulated as follows:

Whether the liability imposed under the law constitutes a punishment in the strict legal sense, or whether it is merely a compensatory and restorative obligation designed to redress the loss suffered by the legal heirs of a deceased.

In the event that the liability was held to partake the character of punishment, whether it is to be satisfied in specie, by tendering the physical quantity of silver prescribed (30,630 grams), or whether payment of its monetary equivalent is permissible. Further, whether the discretion to choose the mode of payment rests with the Court or with the person liable.

If payment is made in currency, whether the monetary equivalent is to be calculated with reference to the prevailing value of silver at the time of the occurrence, or at the time when judicial proceedings reach finality and the obligation is crystallized.

Whether the determination of monetary equivalence in accordance with prevailing value at the time of enforcement violates the constitutional prohibition against ex post facto punishment as embodied in Article 12.

The extent to which comparative jurisprudence and principles of Islamic law are applicable in interpreting and enforcing such liabilities without

contravening the constitutional guarantees of the accused, while simultaneously protecting the rights of the victims and their heirs.

5.Learned counsel for the petitioner(s) contended, with solemnity and persistence, that the liability in question constitutes a punitive burden. It was argued that the payment of monetary equivalent at the time of enforcement, reflecting contemporary valuation of silver, imposes a harsher burden than existed at the time of the occurrence.

Reliance was placed upon the constitutional protection under Article 12, analogous provisions of Article 20(1) of the Indian Constitution, and comparative law from the United Kingdom and the United States. Counsel urged that any deviation from the value prevailing at the time of the occurrence would amount to a violation of the principle against retrospective enhancement of punishment. Learned counsel submitted that the historical and legislative purpose of Diyat had been eclipsed by the passage of time and that equity demanded fixation of liability in currency as of the date of occurrence. In essence, it was contended that the accused ought not to bear the burden of inflation or currency fluctuation, as doing so would

amount to imposition of a penalty exceeding that which the law contemplated at the relevant time.

6.Learned counsel appearing for the heirs of the deceased argued with equal vehemence that Diyat is compensatory, not penal, and that the law envisages full restoration of the loss suffered by the heirs. Counsel submitted that the quantity of silver, fixed by law, constitutes the immutable benchmark.

The conversion into currency is purely facilitative, designed to enable practical discharge of the liability. It was further submitted that freezing the value of currency at the date of occurrence would subvert the very purpose of Diyat, enabling the erosion of the victim’s rights due to ordinary economic fluctuations such as inflation. Reliance was placed upon classical Islamic juristic principles, Pakistani superior court precedent, and comparative constitutional jurisprudence to demonstrate that recalculation of monetary equivalent at the time of enforcement does not constitute ex post facto punishment. Counsel emphasized that the legal and jurisprudential intent is to give effect to a fixed standard, not to protect an offender from economic consequences beyond the control of law.

7.Before the application of the settled principles governing retrospectivity, it is incumbent upon this Court to first ascertain the true legal character of the liability in question, namely, whether it constitutes a punishment in the strict and technical sense of law. Only upon an affirmative determination in this regard would the constitutional prohibition against retrospective punishment fall for consideration. Should such a conclusion be reached, the inquiry would then necessarily extend to the mode and measure of discharge of that liability: whether it is to be satisfied strictly in specie, by payment of silver weighing 30,630 grams, or whether discharge through payment of an equivalent monetary value is permissible; and, further, whether such election lies within the discretion of the Court or rests with the person upon whom the liability is imposed. A further and more nuanced question would then arise, namely, if the liability is discharged in Pakistani currency, whether the amount payable is to be calculated with reference to the value prevailing at the time of the occurrence, or at the time when the judicial proceedings culminate and

the obligation is finally determined and enforced by the Court.

8.As already discussed, the threshold issue remains whether the liability under consideration amounts to a punishment at all. In the considered view of this Court, the punishments exhaustively enumerated under section 53 of the Pakistan Penal Code do encompass the liability presently under scrutiny. However, being compensatory in nature, it constitutes a compensatory obligation, statutorily recognized but jurisprudentially rooted in Islamic law. On this understanding alone, the constitutional doctrines of prospectivity and retrospectivity are not directly attracted. Even if, however, this Court were to proceed, purely for the sake of constitutional argument, on the assumption that the liability partakes the character of punishment, the issue would still persist whether fixation of its monetary equivalent at the time of adjudication amounts to the imposition of a greater penalty than that which existed at the time of the occurrence. In this context, the Court must examine whether it is the fluctuation in the quantity of silver, or the depreciation and inflation of currency over time, that is material for determining whether the accused

has been subjected to a harsher burden than that contemplated by law on the date of the offence.

Upon a holistic consideration of these facets, this Court is persuaded to hold that it is not the monetary amount, in abstract terms, which constitutes the determinative standard. Rather, it is the quantity of silver, fixed, definite, and immutable, which has remained constant throughout and alone constitutes the true measure of the liability. Consequently, where an offender elects not to discharge the obligation in specie by tendering silver, but opts instead to satisfy it in monetary terms, he is necessarily required to pay the monetary equivalent of that fixed quantity of silver at the rate prevailing on the date when the proceedings attain finality, the liability is crystallized, and the accused is called upon to discharge the same. These considerations unequivocally demonstrate that the constitutional principle prohibiting the imposition of a greater punishment does not stand violated. The controversy ultimately converges upon the protection embodied in Article 12 of the Constitution of the Islamic Republic of Pakistan, which prohibits ex post facto criminal liability by

mandating that no law shall authorize punishment for an act which was not punishable at the time of its commission, nor subject an offender to a penalty greater than that which might have been inflicted under the law then in force. The true scope of this safeguard, however, depends not upon semantic classification, but upon the substantive nature of the liability sought to be enforced. Even otherwise, the constitutional prohibition is attracted only where there is a retrospective enhancement of punishment by law. In the present case, the standard of liability, namely, the prescribed quantity of 30,630 grams of silver, was fixed, definite, and operative at the time of the occurrence. That standard has neither been altered nor augmented. What varies over time is not the punishment, but the purchasing power of currency, an economic reality beyond the control of law. To insist that the monetary equivalent be frozen as on the date of occurrence would amount to replacing a legislatively and jurisprudentially fixed commodity standard with a volatile and depreciating substitute, thereby undermining the very rationale for adopting silver as the benchmark.

Article 12 does not command such artificial freezing of value. It protects against retrospective

legal aggravation, not against the ordinary economic consequences of delayed compliance with an existing obligation.

This interpretation is in complete harmony with Islamic jurisprudence, which treats Diyat not as uqubat (punishment) but as malī zimmah (financial liability). Classical jurists across all major schools of thought are unanimous that where Diyat is quantified in terms of gold or silver, it is the quantity that constitutes the obligation, while conversion into currency is merely a facilitative mechanism. Discharge in monetary terms must, therefore, correspond to the market value at the time of payment, for the obligation is fulfilled only upon actual satisfaction. Any other view would permit erosion of the victim’s right through inflation, an outcome repugnant to the Islamic principles of justice (‘adl) and removal of harm (raf‘-al-ḍarar). Pakistani jurisprudence has consistently evolved in consonance with this understanding, repeatedly emphasizing that Diyat is compensatory in nature and must be interpreted in a manner that ensures real and effective restitution, rather than symbolic compliance. The same doctrinal clarity emerges from comparative

constitutional jurisprudence. In India, Article 20(1) has consistently been interpreted to prohibit only retrospective creation or enhancement of penal liability, while distinguishing the quantum of punishment prescribed by law from incidental consequences arising from economic or procedural developments. In the United Kingdom and under Article 7 of the European Convention on Human Rights, retrospective punishment is found only where legal exposure is increased by law, not where enforcement reflects contemporary valuation of a pre-existing obligation.

9.Viewed through this combined

constitutional, Islamic, and comparative lens, the conclusion is inescapable: determination of the monetary equivalent of a fixed quantity of silver with reference to its value at the time of adjudication and enforcement does not amount to retrospective punishment, nor does it impose a greater penalty than that which existed at the time of the offence. It merely gives effective and faithful effect to a constant, immutable standard. Article 12, therefore, stands fully respected, both in letter and in spirit. Any contrary view would invert the constitutional guarantee, transforming it into a

mechanism for unjust enrichment of the offender and deprivation of the victim’s heirs, a result neither contemplated by the Constitution nor consonant with the overarching mandate of justice, equity, and fairness. The Learned Counsel for the Petitioners exerted their utmost effort to persuade this Court that even the Supreme Court, as well as various High Courts, have been pleased to take this particular aspect into consideration, and that it was by virtue of the same that those Courts exercised the discretion to reduce the amount payable on the date of compromise. To determine, however, whether such judgments arose in the context of conviction or of compromise, this Court deems it essential to draw a clear and unambiguous distinction between cases in which compromise has been effected and those in which no such compromise exists. It is further necessary to highlight the limited impact that compromise in one context may have on matters which remain uncompromised, and to ensure that such considerations do not distort the proper application of the law in the present case.

10.It is of paramount importance to discern, with meticulous care, between cases in which the

quantum of liability has been determined through compromise and accord, and those in which no such settlement has been effected, and the determination proceeds purely upon conviction. In the former category, the Court is often called upon to give judicial imprimatur to sums payable by an accused pursuant to a mutual understanding painstakingly negotiated and voluntarily embraced by the parties. In such circumstances, the discretion of the Court to fix, moderate, or adjust the amount is derivative not from the statute alone but from the consensual will of the parties, harmonized with the overarching imperatives of justice. The judicial exercise in these matters is guided by a subtle interplay of accommodation, equity, and reconciliation, whereby the Court ensures that the settlement, once solemnly undertaken, is faithfully enforced without transgressing the boundaries of fairness. The Court’s role is custodial, delicate, and finely calibrated: it safeguards the spirit of compromise, ensures the integrity of the agreement, and gives practical effect to the collective intent of the parties. In such instances, the liability becomes as much a product of human deliberation and mutual accord as it is a matter of legal prescription.

By contrast, where no compromise has been effected, and the matter is adjudicated solely upon conviction, the legal and moral landscape shifts profoundly. Here, the Court derives its authority not from the gracious consent of the parties but from the immutable command of the law itself. The liability is fixed, statutory, and incontrovertible; it arises from the wrongful act and the consequent entitlement of the victims or their heirs. To transpose principles applicable to compromise- based proceedings into this domain would be to subvert the express will of the law, to supplant objective statutory standards with subjective judicial discretion, and thereby risk doing violence to both justice and equity. In conviction-based cases, the Court’s function is not to negotiate, to temper, or to mitigate; it is to uphold, enforce, and crystallize the law in its pure and unaltered form.

The discretion exercised in compromise cases, born of negotiation, mutuality, and accommodation, has no purchase here; to attempt its application would be to distort both the statutory framework and the rights of the aggrieved. The distinction is therefore both profound and principled. In compromise cases, judicial discretion operates within a matrix of

agreement and mutual concession; it is the Court’s task to harmonize justice with the expressed will of the parties. In conviction-based proceedings, the Court’s role is custodial and principled: it stands as the guardian of statutory rights, the protector of the heirs’ entitlement, and the enforcer of the immutable standard of liability. The jurisprudence of this Court, and where applicable, of the apex Court, has repeatedly affirmed this dichotomy:

discretion to moderate or vary the liability is contingent upon compromise, and in its absence, the Court must act in strict adherence to the law.

Accordingly, the judgments rendered on the basis of compromise can neither be cited nor relied upon as precedent in matters arising from conviction. The circumstances are manifestly distinct: in the latter, liability arises not from negotiation but from statute; the rights of the victims are fixed, explicit, and incontrovertible; and the Court’s duty is to ensure full realization of those rights. To apply compromise-based reasoning in such cases would be to contravene the statutory purpose, diminish the rights of the heirs, and erode the principled boundaries within which judicial discretion must operate.

In matters founded upon conviction, unlike compromise cases, the discretion to determine or modulate the amount payable is therefore neither available nor appropriate. Enforcement must proceed in strict accordance with the fixed legal standard, with scrupulous respect for the rights of the heirs, and without interpolation of compromise- based discretion. Such a principled approach preserves the integrity of the statutory framework, safeguards the equitable purpose of Diyat, and ensures that justice, in its purest sense, is neither diluted by judicial overreach nor deferred by negotiation or expedience. It is this unwavering fidelity to law, equity, and moral rectitude that imbues the process with legitimacy, dignity, and the enduring satisfaction that true justice must inspire.

11.In view of the foregoing discussion, and having examined the statutory framework, the constitutional parameters, and the Islamic jurisprudential foundations governing the field, the controversy now stands narrowed to a clear and definitive conclusion. Once the liability in question is held to be compensatory, this Court is not vested with jurisdiction to extend any concession which was never contemplated by the legislature, never

envisaged by Islamic jurisprudence, and never compatible with the justiciable balance that the law seeks to maintain between the offender and the victim. The financial capacity of the accused, irrespective of the severity of the hardship pleaded, cannot be permitted to assume primacy in determining the quantum of compensation payable for the loss of human life. Compassion for the offender, howsoever appealing, must inevitably yield to the higher command of justice owed to the victim and his legal heirs. Consequently, this Court finds itself left with no lawful discretion except to enforce the obligation of Diyat strictly in accordance with the statutory standard, namely, 30,630 grams of silver or its monetary equivalent.

In the absence of any legislative amendment to the contrary, the relevant valuation must be reckoned at the stage when the obligation crystallizes and becomes enforceable, that is to say, upon the culmination of criminal proceedings, the recording of a conviction, and the issuance of a lawful direction for payment by the Court. Any departure from this course would not only distort the compensatory philosophy underlying Diyat, but would also have the pernicious effect of rewarding

delay, frustrating restitution, and undermining public confidence in the administration of justice, consequences which the law neither contemplates nor permits.

12.Accordingly, and for the reasons recorded hereinabove, we dismiss the instant and the connected criminal revision petition, hold and conclude that:

(i)that Diyat shall be determined with reference to silver as the fixed standard, and its monetary equivalent shall be assessed contemporaneously, without affecting the extent of liability.

(ii)the constitutional prohibition against the imposition of enhanced punishment is inapplicable to such compensatory liability;

(iii)inflation or devaluation of currency does not dilute, diminish, or extinguish the statutory obligation;

(iv)this Court lacks jurisdiction to grant concessions inconsistent with the statutory mandate and Islamic jurisprudential scheme; and

(v)the amount payable shall correspond to 30,630 grams of silver valued at the time of enforcement, and not at the time of occurrence.

(vi)We further direct that whenever a request for payment of Diyat, Arsh, or any similar compensation comes before the learned trial Court, it shall refrain from passing a mechanical order for payment in instalments. Before granting any such concession, the Court must objectively assess the financial capacity of the offender and record its satisfaction in that regard. A request for payment of compensation by instalments shall be entertained only where the Court is satisfied that the offender lacks the means to discharge the liability in a lump sum.

JUDGE

JUDGE

Announced

Tariq Jan. DB, Mr. Justice Sahibzada Asadullah, HJ, Mr. Justice Muhammad Ijaz Khan, HJ.