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Criminal Appeal No. J‑196 of 1961, decided on 15th October 1962.
Expression "shall also be liable to fine"‑Does not cast mandatory duty on Court to impose fine‑Word "liable" confers discretion on Court to impose fine or not‑High Court Rules and Orders (Lahore), Vol. Ill, Ch. 19‑C, r. 1. [The State v. Muhammad Akbar P L D 1962 Lah. 1 overruled].
Chuha v. Emperor 14 Cr. L J 522 ; Emperor v. Durg and others A I R 1929 All. 260 (1) ; Babu Lal v. The State A I R 1960 All. 223 ; Jagpat v. The State A I R 1957 All. 764 ; The State v. Amru Tulsi Ram A I R 1957 Ph. 55 ; Suleman v. The State P L D 1962 Lah. 11 and The State v. Said Akbar P L D 1956 Pesh. 110 ref.
Webster : "New International Dictionary," 2nd Ed. Vol. 1 ; Shorter: "Oxford English Dictionary" Vol. I and "Law Lexicon of British India" by lyer ref.
‑ Ambiguous words used in Statute‑Interpretation acted upon over number of years‑Interpreta tion to be accepted as correct whether it be so or not‑Such construction having been adopted by or acquiesced in by highest Court‑Becomes part of Statute itself and remains so unless and until overruled‑Stare decisis.
Jagdfsh Swarup : "Interpretation of Indian Statutes", pp. 195 and 198 ; Bindra : "Interpretation of Statutes", p. 157 and Crawford: "Statutory Construction", p. 388 ref.
Alfred Granville Ross v. The Queen P L D 1957 P C 151 ; Kishori Lal Roy v. Sharut Chunder Mozumdar 8 I L R Cal. 593 and Panchayat Board v. W. 1. Matches Co. A I R 1939 Mad. 421 rel.
‑Decision of, enunciating principle of law --Binding on all Courts‑Constitution of Pakistan (1962), Art. 63.
Interpreting doubtful provisions in Statute‑Rules framed under Statute can be invoked for assistance.
Abdul Rahman Bhuya v. Commissioner of Narayanganj Municipality P L D 1959 Dacca 5 and Aryasthan Insurance Co. Ltd. v. Nurul Islam P L D 1959 Dacca 131 ref.
Legislature does not use words redundantly or without meaning.
Karachi Steam Navigation Co. Ltd. v. Abdul Rahman‑Abdul Ghani P L D 1962 S C 90 and Said Omar v. Federation of Pakistan P L D 1956 Lah. 382 rel.
Vicarious liability not recognised.
Stubbs v. Director of Public Prosecution (1890) 24 Q B D 577 ref.
Appellant through Jail.
Abdul Kadir Sheikh, Assistant A. G. for Respondent.
Dates of hearing: 4th, 5th, 6th and 7th September 1962.
One Kouro had been convicted by the Additional Sessions Judge at Sanghar under section 326, Pakistan Penal Code, and sentenced to rigorous imprisonment for five years. He had filed an appeal through Jail which came up for hearing before Mr. Justice Constantine, one of the Judges of this Bench, who on noticing that the provisions in regard to the punishment under section 326, P. P. C., being that a person "shall be punished with transportation for life, or with imprisonment of either des cription for a term which may extend to ten years, and shall also be liable to fine" though that the punishment awarded was not in consonance with the view expressed in the Division Bench decision in the case of The State v. Muhammad Akbar (P L D 1962 Lah. 1) Cons tantine, J. sitting as a Single Judge could not go against the decision of the Division Bench, he being himself of the view that the words "and shall also be liable to fine" meant that the imposi tion of fine was not obligatory under the section but was discre tional, referred the matter to a Full Bench. Consequently a Full Bench was constituted for the disposal of the reference made by him which was on the following issue :‑
"Whether the expression in the Penal Code and shall also be liable to fine' makes the imposition of fine obligatory or discretional."
2. We have heard this reference at a very great length and several points have been urged by the learned Assistant Advocate- General who handled this case on behalf of the State. Before we deal with the points raised, it is necessary to first understand the meaning of the word "liable" as used in various sections of the Pakistan Penal Code. The definition of the word "liable" as given in Webster's New International Dictionary, Second Edi tion, Vol. I, is as under:‑
"(1) Bound or obliged in law or equity; responsible; answer able ; as, the surety is liable for the debt of his principal ; also, now rarely, with to ; as, all his property is liable to pay his debts and to taxes.
(2) Exposed to a certain contingency or casualty of an undesired character ; as, liable to slip ; liable to be injured."
The definition of this very word as appearing in the Shorter Oxford English Dictionary, Vol. I, is in the following words
"(1) Bound or obliged by law or equity ; answerable ; legally subject or amenable to.
(2) (a) Exposed or subject to or likely to suffer from (some thing prejudicial) ; in older use with wider sense, subject to (any agency or change).
(b) Subject to the possibility of (doing or undergoing some thing undesirable).
(4) Subject or subservient to.
(6) U. S. likely."
In the Law Lexicon of British India by 1yer this is the meaning giving to word "liable":‑
"Bound or obliged by law; compellable to make satisfaction of a claim or debt; Exposed to a certain contingency or casualty more or less probable; financially responsible, to be obliged to pay, at least, upon a contingency ; According to the context the word may mean bound or obliged, likely or probable."
From the meaning given to the word "liable" it appears to us that its use in the expression "and shall also be liable to fine" is not without significance. In some of the meanings given to the A word "liable" in the various books cited above it cannot be said that it necessarily puts an obligation for the fine to be imposed. If the meaning, as given in the dictionaries, is to be scrutinized thoroughly the use of the words "and shall also be liable to fine" will in some cases mean no more than a discretion vesting in the Court to impose a fine or not. The word "liable" has also received the attention of the Courts for its interpretation. The first such case is Chuha v. Emperor (14 Cr. L J 522). This is how their Lord ships have expressed about the interpretation of the words "and shall also be liable to fine"
"The learned Sessions Judge has further sentenced the appel lants, Lali and Chanan Singh, to fines of Rs. 200 each, directing that if the fines are realised Rs. 200 shall be paid to the nearest heirs of Kapura and Rs. 200 to the nearest heirs of Ram Singh. This subsidiary order is open to two objections. In the first place, no evidence has been taken to show that the appellants in question can pay the fines imposed, and in the second place an order of compensation to the nearest heirs without specifying who those heirs may be is not a sufficient compliance with the law . . . . . . .
Besides this technical difficulty, we are unwilling to depart from the usual practice of this Court which is to avoid the imposition of‑fines wh re death sentences have been given."
If the word "liable" means an obligation on the Court to impose fine the learned Judges in this case could not have said that the fines are as a matter of practice not imposed on persons who have been sentenced to death.
3. The second case on the subject is Emperor v. Durg and others (A I R 1929 All. 260 (1)). This is what has been said about "shall be punished with imprisonment and shall also be liable to fine"
"This means that some sentence of imprisonment must be given and the Court has a discretion to add or refrain from adding a fine, for to the latter an offender is only liable'."
4. The third case is Babu Lal v. The State (A I R 1960 All. 223) and this is what has been expressed in this case
"Before parting with this decision we would like to observe that it is highly undesirable that where the longest term of imprisonment is awarded to an accused person, this punishment should be supplemented by an additional sentence of fine. The trial Court either misread the words of section 302, 1. P. Code and thought that it was obligatory to impose a sentence of fine or it was of the opinion that even a sentence of life impri sonment was not enough and something else should be added to this sentence. This Court has expressed its view repeatedly in several cases and if we mistake not even in those cases which have come up to this Court from Lucknow. It is, therefore, surprising that the observations made by this Court are not read by the lower Court, for we would not go to the extent of believing that they are being deliberately disregarded. We, therefore, set aside the sentence of fine Rs. 100 imposed upon the appellant. The fine, if deposited, should be refunded."
5. Same view has been expressed in Jagpat v. The State (A I R 1957 All. 764). In paragraph 5 of this judgment this is how their Lord ships have expressed themselves
"On the question of sentence we are of opinion that after having passed a sentence of life imprisonment upon the appel lants no justifiable reasons have been set out by the learned Sessions Judge as to why a further sentence of fine had been imposed. The Indian Penal Code sanctions either a term of imprisonment or a fine or both and it is left to the discretion of the Court whether to inflict a sentence of imprisonment or fine or both.
It is only in very exceptional cases that it is suitable and appro priate to inflict a fine as well as a substantive term of imprison ment. It is only suitable in cases where the Court thinks that the justice of the case will be met by inflicting a substantial fine, but at the same time thinks that a short term of imprison ment in addition will serve as a salutary lesson to the accused, or in cases where it is desired to compensate the complainant, or in cases where the accused had profited financially by his misdeeds. The Court should exercise a careful discretion in the matter of superimposing fines upon long substantive terms of imprisonment."
The conviction in this case was also under section 302 read with section 34, 1. P. C. The sentence of imprisonment alone was maintained whereas the sentence of fine imposed was set aside.
6. In State v. Amru Tulsi Ram (A I R 1957 Pb. 55) the matter received considerable attention and the words "and shall also be liable to fine" were dealt with at great length. The learned Judge observed as under :‑
"The words which have to be interpreted are and shall also be liable to fine' and they do not mean that it is necessary that a sentence of fine shall also be imposed. The learned Addi tional Sessions Judge has held that this would be the meaning of the words. Both the States as well as the opposite‑party submit that this is not a correct interpretation and that it is not a mandatory provision of the law and that all it means is that if the Magistrate wants to impose some fine he may do so if he finds the case to be of that nature.
No Indian case has been quoted before me on the meaning of the words shall be liable' by either of the parties, but I find that in one American case the words shall be liable' came up for interpretation. The Kate Heron 14 Fed. Cas. 139 at p. 141 (A). In that case the definition of the word liable' as given by Webster's dictionary was accepted. Webster defines liable' thus, obliged in law or equity, subject' and says that it means something external which may befall us' and the words shall be liable to forfeiture' as interpreted by the American Court do not affect a present absolute forfeiture but only give a right to have the vessel forfeited upon due process of law."
Similarly the words shall be liable' came up for interpretation in another American case where the words were shall be liable to serve as jurors', but in that case also it was held that shall be liable' only means that he is only likely to be and not must.
In other cases the word liable' has been interpreted to mean exposed to a certain contingency or casualty, more or less probable in other words, a future possibility or probability happening which may or may not actually occur.
The word liable' is also used in the Rules of the English Courts under R. S. C. Ord. 16, r. 28 (l) it has been inter preted to mean that the jurisdiction is discretionary and not that the order must necessarily be made.
From all these cases it appears to me that the word liable' means a future possibility or probable happening which may or may not actually occur. In other words the Magistrate has the power to impose the sentence of fine but it is discretionary. If the Legislature intended that imposition of fine was mandatory it would have used ‑words something like this and shall be punished with imprisonment to so many years and to fine'."
7. There is also a Single Judge case Suleman v. State (P L D 1962 Lah. 11) in which the following view has been taken
"The words shall be liable to confiscation' do not mean the same thing as the words shall be confiscated'. The plain meanings of the words liable to confiscation' are that the conveyance may be confiscated in a proper case, otherwise the Legislature would have used the words shall be confiscated'.
To make a thing liable to confiscation amounts to a declaration that the thing is available for confiscation. The use of the word shall' here in the context only means that in case the Court considers proper, it will have power to order the confisca tion of the conveyance."
8. A contrary view has, however, been expressed in The State v. Said Akbar (P L D 1956 Pesh. 110) and The State v. Muhammad Akbar (P L D 1962 Lah. 1) The view expressed in these last two mentioned cases is that the use of the words "and shall also be liable to fine" cast a mandatory duty on a Court to impose a fine.
9. The cases cited above and the meaning given to the word liable' in various dictionaries and by several Courts in our view make it quite plain that the use of the word conferred a discretion on a Court to impose a fine or not.
10. Apart from whether the meaning that we have given to the word liable' is corrector not, another argument that compels us to hold the view in favour of the interpretation of the words "and shall also be liable to fine" that they leave a discretion with the Court to impose a fine or not is that the Pakistan Penal Code which originally was Indian Penal Code was enacted as far back as 1860 and these words received the attention over all these years and that they have been construed to be conferring a discretion on a Court in respect of imposition of fine. Mr. Justice Shabir Ahmad in his judgment in The State v. Muhammad Akbar has dealt with this principle as a principle of stare decisis. According to the learned Judge, this principle of stare decisis cannot be invoked in matters of punishment for crimes. It can be invoked only in cases where people on the basis of the interpretation have entered into various transactions and a change in the interpretation would necessarily result in many a transaction becoming invalid though they were not suspected to be so at the time when they were entered into. The second ground on which the learned Judge has not pressed this principle of stare decisis into service is that there are only a few reported cases on the question. We have given our anxious consideration to the arguments of the learned Judge and we with respect do not feel inclined to accept his view that the principle of stare decisis in this particular case cannot be invoked. Several authors while dwelling upon this principle have been unanimous in their view B that the interpretation of the words which are ambiguous and which has been acted upon over a number of years has to, be accepted as a correct interpretation regardless of whether that interpretation is correct or erroneous. Jagadish Swarup in the Interpretation of Indian Statutes at page 195 has stated as under
"When a statute uses language of doubtful import, the acting under it for a long term of years may well give an interpretation to that obscure meaning and reduce that uncer tainty to a fixed rule."
Bindra in his book the Interpretation of Statutes at page 257 dealing with the question of usage has referred to several quotations from well‑known books and has finally expressed himself in the following words
"The meaning publicly given to contemporary or long pro fessional usage is presumed to be true one, even when the language has etymologically or popularly a different meaning. It is obvious that the language of a statute must be understood in the sense in which it was understood when it was passed, and those who lived at or near the time when it was passed, may reasonably be supposed to be better acquainted than their descendants with the circumstances to which it bad relation, as well as with the sense then attached to legislative expression."
Crawford in his book Statutory Construction at page 388 has stated as 'under : ‑
"Where the meaning of a statute is in doubt, the Court may resort to contemporaneous construction that is, the construction placed upon the statute by its contemporaries at the time of its enactment and soon thereafter for assistance in removing any doubt. Similarly, resort may also be had to the usage or course of conduct based upon a certain construction of the statute soon after its enactment and acquiesced in by the Courts and the Legislature for a long period of time. As is obvious, the meaning given to the language of a statute by its contemporaries is more likely to reveal its true meaning than a construction given by men of another day or generation. Even words change in meaning with the march of time. And the meaning given by contemporaries can be revealed with no more certainty than by resort to the common usage and practice under the statute itself over a considerable period of time.
To be sure, contemporaneous construction may not be controlling, yet it is obviously entitled to considerable weight, especially where men have acted under a particular interpreta tion of the statute for a long time. Such a construction should not be rejected . . . . ."
11. The principle of stare decisis has also received attention of Courts in several cases. The most pertinent case on the subject is Alfred Granville Ross v. The Queen (PLD 1957 P C 151). In this case the con tention put across was that the Appellate Court dealing with the appeal had no jurisdiction. Their Lordships of the Privy Council while disposing of this point observed in the following words :‑
"Their Lordships will first deal with the question of jurisdic tion. They regret that, as the point was not taken until the matter reached their Lordships' Board, they have not the benefit of the opinion of the Court of Appeal for Eastern Africa upon it, but as the jurisdiction has been exercised without challenge for more than 50 years during the whole of the existence of the present Court and its predecessors they are glad to be able to come to the clear conclusion that there is no valid ground for questioning it."
12. The next important question connected with the above question that might be mentioned here is that this practice of not imposing fine despite the use of the words "and shall also be liable to fine" has, as we have already stated, been consistently followed for a length of over 100 years. The Legislature which enacted this law originally cannot be argued to have not been in the know of such an interpretation being put on these words. It is undisputed that the Legislature has not over this long period of 100 years chosen to amend the law and put different words in place of "and shall also be liable to fine". This conduct of the Legislature is indica tive clearly of either (1) that the interpretation given to the words "and shall also be liable to fine" was the correct interpretation or (2) that the Legislature knowing of the interpretation that was put on these words acquiesced in such an interpretation being acted upon. Unless this is the view which can be taken of the Legislatures permitting the words "and shall also be liable to fine" to continue in the Code no other view can be consistent with it. In such an event when the Legislatures have either accepted the interpretation or acquiesced in the wrong interpretation the interpretation which has held the field for such a long period will be accepted to be the correct one. Jagadish Swarup in his book Interpretation of Indian Statutes has at page 198 discussed this proposition in the following words :‑
"The Legislature is presumed to know not only the general principles of law, but the constructions which the Courts have put upon particular statutes. Where a section of an Act, which has received a judicial construction, is re‑enacted in the same words, such re‑enactment must be treated as a legislative re cognition of that construction. It has long been a well established principle to be applied in the consideration of the Acts, that where a word of doubtful meaning has received a clear judicial interpretation the subsequent statutes which incorporate the same word ; or the same phrase, under a similar context, must be construed so that the word or phrase is interpreted according to the meaning that has been previously assented to. Thus where an Act has received a judicial construction putting a certain meaning on its words and the Legislature in its subsequent Act in pari materia uses the same words, there is a presumption, that the Legislature used those words intending to express the meaning which it knew had been put upon the same words before, and unless there is something to rebut that presumption ; the Act should be so construed, even if they were such that they might origin ally have been construed otherwise.
When the words of an old statute, are , ambiguous, it may be legitimate to refer to the construction put upon them through out a long course of years for the purpose of ascertaining the intention of the Legislature and as evidencing what must pre sumably have been its intention at that remote period."
13. The undoubted position that exists at present is that despite the fact that the words "and shall also be liable to fine" have been so interpreted by Courts that they connote a discretion vesting in the Court to impose fine or not, the Legislature has in several enactments after the Indian Penal Code was enacted used those very words. The ordinary presumption that can be attached to such use of these words is that the Legislature has accorded an approval to such an interpretation being put on these words. It is a well established principle that the Legislature must be presumed to approve of the established rules and practice if, on occasions when it does turn its attention to the subject it does not introduce provisions to the contrary. It is not that a con tinuous practice following legislation, interprets the mind of the Legislature, but when one finds legislation following a continuous practice and repeating the very words on which that practice was founded, it may fairly be inferred that the Legislature in re‑enacting the statute used these words in their received meaning and this inference grows stronger with each successive enactment. This view has also been expressed in a Full Bench decision in Kishori Lai Roy v. Sharut Chunder Mozumdar (8 I L R Cal. 593). Their Lordships have observed as under
"There is a very wholesome maxim of law optimus legis interpres consuetudo;" and Mr. Broome in his work on Legal Maxims, 2nd edition, page 534, says this :‑"Where a Statute uses language of doubtful import, the acting under it for a long term of years may well give an interpretation to that obscure meaning, and reduce that uncertainty to a fixed rule."
14. Similar view has been expressed by a Full Bench in Panchayat Board v. W. I. Matches Co. (A I R 1939 Mad. 421). The observation made by their Lordships runs as under :‑
"Where the Courts have consistently interpreted the law in a particular way for many years, it is for the Legislature and not for the Court to effect a change, if a change is desirable. Where a word of doubtful meaning has received a clear judicial interpretation, the subsequent statute which incorporates the same word or the same phrase in a similar context, must be construed so that the word or phrase is interpreted according to the meaning that has previously been assigned to it."
15. The next argument which is stronger in its import in support of the view that the words "and shall also be liable to fine" confer a discretion on Court to impose a fine or not is that the Privy Council, Federal Court of India, Federal Court of Pakistan and now the Supreme Court of Pakistan have accepted this interpretation to be the correct one. In several cases which have gone from the High Courts to the above Courts the inter pretation of imposition of fine being not obligatory on account of the use of the words "and shall also be liable to fine" has been accepted. If these words had meant that fine was necessarily to be imposed, the above Courts would have immediately drawn the attention of the High Courts and the subordinate Courts to the illegality of acting contrary to not imposing fine as envisaged by the use of the words "and shall also be liable to fine". Not only that but in some cases which have gone in appeal before the Supreme Court against the judgment of acquittal passed by the High Courts the Supreme Court itself has convicted persons merely to a term of imprisonment or sentence of death without imposing any fine. The sentence of imprisonment only without any imposition of fine, in the first instance, by the Supreme Court is a positive proof of the fact that the Supreme Court has accepted the interpretation of "and shall also be liable to fine" to be conferring only a discretion. When the highest Court of the country accepts this interpretation to be the correct one, it in our respectful view, does not lie in our mouth to say that that interpretation is not the correct interpretation. Crawford in his book Statutory Construction has at page 406 put this proposition as under : ‑‑
"The construction placed upon a statute by an inferior Court is entitled to consideration by the Court of last resort; and, if such a construction has been acquiesced in for a long period of time, and particularly where a refusal would result in hard ship, the superior Court should depart from the inferior Court's construction with considerable hesitancy. And after a construc tion has been adopted by the highest Court, it becomes a part of the statute itself, and remains so as long as it is not overruled."
16. In Lalu v. The State (P L D 1959 S C 258) their Lordships allowed the appeal filed against the acquittal of Hakim Ali and setting aside the order of the High Court acquitting him convicted him under section 302/34, P. P. C. and ordered him to be hanged by the neck till he be dead.
17. In the year 1956, the Federal Court of Pakistan disposed of several cases in which no fines had been imposed and it had not been directed that fines should be imposed. These cases are :‑
(1) Chan Shah v. Crown P L D 1956 F C 43.
(2) Shahbaz v. Crown P L D 1956 F C 46.
(3) Khan Beg v. The Crown P L D 1956 F C 62.
(4) Ghulam Safdar v. Crown P L D 1956 F C 126.
(5) Musafar v. Crown P L D 1956 F C 140.
(6) Adalat v. Crown P L D 1956 F C 171.
(7) Shahamad v. The State P L D 1956 S C (Pak.) 238.
(8) Dil Muhammad v. Crown P L D 1956 F C 402.
(9) Abdul Qadir v. The State P L D 1956 S C (Pak.) 407.
(10) Muhammad Anwar v. The State P L D 1956 S C (Pak.) 440.
In the P L D part of 1957 a similar decision of the Supreme Court in Hayat v. State appears at page 207. Two decisions of the Federal Court in Dilawar v. Crown and Allah Yar v. Crown (P L D 1962 S C 108) appear. These decisions of the Supreme Court even other wise are binding on the High Court. Article 63 of the Constitu tion of the Republic of Pakistan lays down as under
"63. Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle or law, be binding on all other Courts in Pakistan."
18. No one, we believe, can be heard to say that the attention of the Supreme Court had not been invited to the fallacy occurring in the decisions of the several Courts over such a long time. No one also can be heard to say that the Supreme Court had not bestowed consideration on this proposition or that it had escaped its notice. In Muhammad Bashir Alam v. The State (P L D 1958 S C (Pak.) 1) one of the Judges of this Court bad invited the attention of the Supreme Court to certain cases and said that they might review their previous view on consideration of those cases as probably they had not been brought to the notice of their Lord ships. Dealing with the subject, their Lordships of the Supreme Court expressed themselves in the following words
"As to the admissibility of the identification tests, the learned Judge is under a misapprehension if he thinks, as he seems to think, that there is any decision of any High Court or of the Supreme Court of India laying down that section 162 of the Code of Criminal Procedure is a specific provision, contrary to the identity provision of section 9 of the Evidence Act. Nor is he right in suggesting, as he seems to me to suggest, that some pre-partition decisions of the High Courts were not present to my mind when I wrote the opinion of the Court in that case, which he considers to be erroneous. All these cases and many others, more fully argued, were in my mind when I formed that opinion." .
19. Apart from what has been said above, rules can also be invoked for assistance in interpreting a doubtful provision in a statute. This view has been amplified in Abdur Rahman Bhulyal v. Commissioner of Narayanganj Municipality (P L D 1959 Dacca 5). This is how their Lordships have in this matter observed
"We also do not find any substance in his contention that the rules cannot be referred to for the purposes of interpreta tion of the provisions of the Act."
The same view has been expressed by the same Court in Aryasthan Insurance Co. Ltd. v. Nurul Islam (P L D 1959 Dacca 131). Their Lordships have observed as under :‑
"It will not be irrelevant for our purpose to look into the rules and forms made under the Act in this connection."
Section 554 of the Code of Criminal Procedure has authorised the High Court to make rules and it is under this section that the rules have been framed by the High Court. Rule 1 of Chapter 19‑C, Vol. III, is in the following words
" . .In the case of many offences under the Indian Penal Code and other Acts, it is provided that the offender shall be punished with imprisonment up to a certain term and shall also be liable to fine. In such cases the offender must be sentenced to some period of imprisonment (however small), but it is not obligatory to impose fine in addition, as supposed by some Magistrates."
This rule has not only interpreted the words "and shall also be liable to fine" as discretional but has thrown a word of caution to some Magistrates who had been erroneously of the view that these words necessarily put an obligation on them to impose a fine.
20. Another argument advanced by the learned Assistant Advocate‑General was that the Legislature could have used the words "shall be fined" instead of "shall also be liable to fine" if it intended to make the imposition of fine obligatory. The contention pressed into service was that the use of the words "and shall also be liable" was not without any meaning. According to him, it is well known that the Legislature does not use the words redundantly without any meaning. He has in support of his proposition relied upon the case of Karachi Steam Navigation Co. Ltd. v. Abdul Rahman‑Abdul Gani (P L D 1962 S C 90) in which their Lordships have observed as under:‑
"Surely, the figure above named' can only be found in the first paragraph. In the face of this fact, learned counsel was driven to argue that these last words in the paragraph were redundant. It is, however, a cardinal principle of construction of statues that redundancy must not be attributed to the Legislature unnecessarily."
21. The second case on which he placed reliance is Said Omar v. Federation of Pakistan (P L D 1956 Lah. 382) in which it has been observed
"If the idea behind the section was to confer wide powers of interference with particular orders regarding any evacuee property, the object could have been much more easily and simply achieved by omitting the word regulating' altogether. This word cannot be regarded as redundant. It is a cardinal principle of interpretation that redundancy must not be attributed unnecessarily to the legislature."
22. The next argument on which the learned Assistant Advocate‑General laid great stress was that if fine had necessarily to be imposed on account of the use of the words "and shall also be liable to fine" then the imposition of fine would not be avoided in a case where a person is sentenced to death and in such a case the recovery of fine will stand transferred as liability to the heirs of the person whose sentence of death has been executed. In the first instance, the Penal Code as a whole does not con template sins of fathers visiting on the heirs and in the second place no transfer of liability which is in the nature of punishment is contemplated by criminal law. Even if it be assumed that the transfer of punishment can be deemed to have been contemplated by the legislature in cases where sentence of death has been imposed, the cardinal principle of law is that the transferred punishment shall not be in any measure greater in extent than the punishment that was inflicted on the ancestor from whom the punishment has been inherited. In the case of a fine imposed upon a person sentenced to death and in case of the sentence of death being executed the recovery of fine shall be made from the heirs of the deceased. The method by which the recovery of the fine is to be made is laid down in section 386, Cr. P. C. Section 380, Cr. P. C., reads as under
"386.‑(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) 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 subsection (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
Provided that no such warrant shall be executed by the arrest or detention in prison of the offender."
This section lays down the method by which the recovery of fine can be made. The proviso to this section, however, is significant. The recovery of fine in case where a person has undergone sentence in default of payment of fine can be made only if the Court gives special reasons to be recorded in writing for recover ing fine. What is, therefore, quite plain from the proviso of this section is that it is not in all cases that fine shall be recovered as a matter of course if a person undergoes the sentence of imprison ment in default of payment of fine. But the cases where the sentence of death has been imposed and executed the benefit of the proviso, to undergo sentence in default of payment of fine is denied both to the person who has been executed and the heirs on whom the liability to pay fine has devolved. The fine in the case of a person who has been sentenced to death and whose sentence of death has been executed has, therefore, necessarily to be recovered from his heirs. The extent, therefore, to which the punishment can be inflicted in so far as the imposition of a fine is concerned appears to be obviously different from the extent to which the transferred liability is to be discharged. Once it is conceded that fine is necessarily to be imposed then there can be no limit on the extent to which the fine can be imposed. There may be cases where enormous fines may be imposed and where in the case of a person whose sentence of death has been executed his heirs may not be willing to pay the fines but may be willing to undergo the imprisonment in default of its payment, but such a contingency does not exist. It can, therefore, be safely inferred that the Legislature never intended the heirs to be punished differently on account of the transferred punishment of their father from the father himself. This view finds support also from Stubbs v. Director of Public Prosecution ((1890) 24 Q B D 577). It was held in this case that :‑
"Section 7 of 42 & 43 Vict. clause 22, imposed no greater liability on the director of public prosecutions than that from which the original prosecutor was relieved, viz., the costs for which he was liable under his security, and that the order was therefore invalid."
23. From what has been said above, we are clearly of the view that the expression "and shall also be liable to fine" appear ing in the Pakistan Penal Code makes the imposition of fine discretional and not obligatory. We, therefore, while answering the reference, hold that "and shall also be liable to fine" mean that it is within the discretion of the Court to impose a fine or not.
24. We shall in the end record our note of appreciation for the assistance Mr. Abdul Kadir, the learned Assistant A: G. has given to us in this matter.
K. B. A.
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