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Criminal Miscellaneous No. 1 of 1973 in Criminal Revision No. 503 of 1970, heard on 27th July 1973.

-------S.--‑44‑A read with S. 386‑Compensation, liability for‑Court ordering accused to pay compensation to heirs of deceased or suffer imprisonment in default of payment‑Accused choosing to undergo sentence awarded in default of payment Contention that mere fact of accused having undergone sentence in default of payment of compensation cannot wash away his liability to pay compensation‑Held, not correct and accused not required to pay money ordered under S. 544‑A, Cr. P. C.

Sh. Ziaullah for Petitioner.

M. Zaman Bhatti for Respondents.

Muhammad Ishaq and his brother Fateh Muhammad respondent, were tried for an offence under section 302/34, P.P.C. Both of them were acquitted of the charge of murder but Muhammad Ishaq respondent convicted of ail offence under section 304/II, P. P. C. and sentenced to 2 years R. I. Feeling aggrieved Inayat Ali, the brother‑in‑law of the deceased filed a revision against their acquittal as well as the enhancement of sentence awarded to Muhammad Ishaq respondent. I dismissed the revision as far as it related to his acquittal of charge under section 302, P. P. C. but enhanced the sentence under section 304/II, P. P. C. by awarding a compensation of Rs. 2000 under the mandatory provisions of section 544‑A, Cr. P. C. Muhammad Ishaq respondent was also ordered to undergo one year R. I. in default of payment of the said amount.

The heirs of the deceased have filed the present application under section 386/544‑A, Cr. P. C. praying for the issuance of warrant to the Collector Lyallpur for the recovery of the sum of Rs. 2,000 from Muhammad Ishaq respondent.

2. I have heard the learned counsel for the parties. The learned for is respondent submitted that the fine cannot now be recovered from Muhammad Ishaq respondent as he had not only undergone the substantive a sentence but had also undergone the extra one year R. I. awarded to him for making the default in the payment of the sum of Rs. 2000. The counsel for the petitioner did not dispute this fact but submitted that the provisions to section 544‑A, Cr. P. C. which are mandatory, require that in addition to the sentence of death or imprisonment, awarded to the accused he should also be ordered to pay compensation to the heirs of the deceased or the person injured during the incident and the mere fact that the accused has undergone the sentence awarded to him in default of payment of the said compensation, does not wash away his liability to pay the amount awarded as compensation.

The learned counsel for the respondent, on the other k hand relied on the provisions of section 386, Cr. P. C. (under which the petition has been made) and submitted that once the period of extra imprisonment in default of payment of fine (or compensation) 4as been served, the liability to pay the same is no longer enforceable.

3. I have carefully considered the above‑mentioned contention. It will be noticed that section 544‑A, Cr. P. C. was inserted by the West Pakistan Act XI of 1963 at a place in Chapter XLVI of the Criminal Procedure Code where other provisions relating to the award of compensation of payment of money towards defraying expenses etc., already existed. A reference in this connection may be made to section 544, 545, 546 and 546‑A, Cr. P. C. Another section i.e. section 547, Cr. P. C, deals with the method by which the money so ordered to be paid is recoverable. It reads as follows :‑

Section 547, Cr. P. C.‑Any money (other than a tine) payable by virtue of any order made under this Code (and the method of recovery of which is not otherwise expressly provided for) shall be recoverable as if It were a fine.

4. It will be noticed that this section deals only with moneys, "other than fine" ordered to be paid by the Court sad, secondly this section is applicable only where the method of recovery is not already provided for. If these, two conditions are fulfilled then such an amount shall be recoverable as if it were a fine. It is however, significant that in sec tion 544‑A, Cr. P. C. the language used by the Legislature makes a clear distinction between compensation awarded under other sections and the compensation awarded under that section (i.e. section 544‑A, Cr. P. C.) by providing that the amount of compensation awarded try the Court under this section shall be regarded as a sentence of fine.

Note. The underlining is mine). Firstly, there is a clear distinction between fine and the amount levied by the Court, to be paid as "compen sation' to the victim or has heirs. As provided by section 53, P. P. C. the 'fine' is one of the punishments to which a person becomes liable on commission of any offence under that Erode. Any other amount levied by the Court. (like money ordered to be paid for compensation or for defraying expenses), is not a 'punishment' within the meaning of section 53, P. P. C. As already observed section 547, Cr. P. C.. provides for the method of recovery of amounts other than the fine, levied by a Court. But section 544‑A, Cr. P. C. provides that the amount of compensation awarded by the Court under that section shall be treated as if it was itself a sentence of fine. As such it is a punishment within the meaning of section 5'r P. P. C. Therefore, all other provisions relating to the sentence of fine, would per re be attracted to it. In this connection section 70 of the Pakistan Penal Code and section 386 of the Criminal Procedure Code are relevant, and may be reproduced here for facility of reference :‑

Section 70, P. P. C.‑---The fine, or any part thereof which remains unpaid, may be levied at any time within six years after the passing of the sentence, and if, under the sentence the offender be liable to imprisonment for a longer period than six years then at any time previous to the expiration of that period, and the death of the offender does not discharge from the liability any property which would after his death, be legally liable for his debts.

Section 386, Cr. P. C.‑(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 authorising him to realise 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 unless for special reasons to be recorded in writing it considers it necessary to do so.

2. ..

3. ...

Section 70, P.P.C. lays down the substantive law, defining the liability of the offender, while section 386, Cr. P. C. provides the method of recovery of fine and lays down the general principle to be followed while ordering the recovery of fine. According to section 70, P. P. e. even the death of the convict does not operate as a discharge of his liability to pay the fine. According to the proviso to section 386 (1), Cr. P. C. however, the fine should not ordinarily' be recovered if the convict has undergone the whole of the period of imprisonment awarded to him in default of payment of the. It appears that the intention of the Legislature was that ordinarily offender should not be made liable to undergo the period If imprisonment in default of payment of fine as well as to pay the fine. In exception has, however, been made, namely, that for special reasons to be recorded in writing, the Court may require a convict to pad the amount of fine notwithstanding the fact that he had undergone the period of imprisonment awarded to him in default of payment of the same. These special reasons have not been mentioned in the section itself but have, to some extent been defined by case‑law during the past one century or so.

5. Coming to the facts of the present case I feel that no such special reasons exist and although the liability of the accused respondent to pay the fine still exists, yet since he has undergone the entire sentence including that awarded for the default in payment of‑fine, he should not now be required to pay up the money ordered to be paid by him under section 544‑A, Cr. P. C.

6. As a result the petition is dismissed.

Petition dismissed.

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