ZAWAR alias MUHAMMAD RAMZAN vs THE STATE and 2 others
This criminal revision application challenges an order passed by the Additional Sessions Judge, which accepted a compromise in a criminal case but immediately remanded the accused to judicial custody for failing to pay the Diyat amount on the date of the order. The core legal question is whether a trial court can lawfully remand an accused to custody for non-payment of Diyat without first fixing a specific timeframe or installment schedule for such payment as mandated by statute. The Sindh High Court held that the trial court acted illegally by failing to follow the procedure prescribed under Section 331 of the Pakistan Penal Code 1860. The Court ruled that the trial court must first pass an order specifying whether the Diyat is payable in a lump sum or in installments over a period of up to three years. Only upon a failure to comply with such a specified order can the penal provisions regarding custody or bail be invoked. Consequently, the impugned order was set aside, and the matter was remanded to the trial court for proper adjudication.
- Can a trial court immediately remand an accused to judicial custody for non-payment of Diyat without first fixing a timeframe for payment?
- What is the procedure for payment of Diyat under Section 331 of the Pakistan Penal Code 1860?
- Under what circumstances can a convict be kept in jail for non-payment of Diyat?
- Section 331, Pakistan Penal Code 1860
ORDER
1. ' RAHMAT HUSSAIN JAFFERI, J.---The present revision application is directed against the order dated 19-4-2005 passed by the learned Additional Sessions Judge, Naushahro Feroze in Sessions Case No.211 of 2000 State v. Zawar alias Muhammad Ramzan. Under the impugned order the learned Judge accepted the compromise. One of the legal heirs of the deceased was minor, therefore, her Diyat amount was fixed at Rs.1,77,500. The Wali of the minor accepted the said amount. The trial Court further directed that the amount should be invested to some profitable scheme in the name of minor which shall be paid to her on attaining her age of puberty. Consequently the applicant was acquitted from the case subject to above. The order further reveals that the applicant was present as he did not pay the amount of Diyat on that date, therefore, he was taken and remanded to judicial custody till the payment of said amount.
2. ' Learned counsel for the applicant has stated that trial Court was not justified in straightway remanding the application to custody without giving him an opportunity or fixing the time in which Diyat amount should be paid as such the trial Court has violated the provisions of section 331, P . P .
3. C .
4. ' Learned A.A.-G. Has stated that the trial Court was required, first to determine the time by which the Diyat amount was required to be paid and in case of non-payment of Diyat amount then the penal provisions could have been invoked. He has further stated that as the trial Court has not adopted the proper procedure therefore, he is unable to support the impugned order.
5. ' The dispute revolves around the interpretation of section 331, P.P.C., which reads as under:- "331. Payment of Diyat.---(1) The Diyat may be made payable in lump sum or in instalments spread over a period of three years from the date of final judgment.
(2) Where a convict fails to pay Diyat or any part thereof within the period specified in subsection (1), the convict may be kept in jail and dealt with in the same manner as if sentenced to simple imprisonment until the Diyat is paid full or may be released on bail if he furnishes security equivalent to the amount of Diyat to the satisfaction of the Court.
(3) Where a convict dies before the payment of Diyat or any part thereof, it shall be recovered from his estate."
6. ' From the bare reading of the above provisions of law it is clear that under subsection (1) the Diyat amount can be paid in lump sum or in instalments spread over a period of 3 years from the date of judgment. Subsection (2) provides that when convict fails to pay Diyat or any part thereof within the period specified in subsection (1), then the convict may be kept in jail and dealt with in a same manner as if sentenced to simple imprisonment until the Diyat amount is paid or that he may be released on bail if he furnishes security equivalent to the amount of Diyat to the satisfaction of the Court. Subsection (3) provides that when the convict dies before the payment of Diyat or any part thereof then it shall be recovered from his estate. It is well-settled that penal provisions are construed strictly.
7. Thus before invoking the penal provisions of section 331, P.P.C., the trial Court was required to have passed an order either to pay the Diyat amount in lump sum or in instalments which may spread over a period of 3 years from the date of judgment. Secondly if the accused fails to part Diyat or any part thereof as specified above then he can be kept in jail till the amount is paid. The Court has further been given discretion to release the accused on bail if he furnishes security equivalent to the amount of Diyat or any part thereof to the satisfaction of the Court.
8. A perusal of the impugned order feveals that the trial Court did not pass any order directing the accused to pay the Diyat amount in lump sum or in instalments, nor fix the time for payment of such amount as such without invoking the provisions of sub-rules (1) and (2) the accused can not be remanded to judicial custody.
9. As such the impugned order to the above extent is illegal and without jurisdiction, therefore, the same is set aside. The matter is remanded to the trial Court to pass an appropriate order within the meaning of subsections (1) and (2) of section 331, P.P.C. And then proceed further in accordance with law. The accused was on bail before the trial Court. The trial Court is directed to restore the position as it was on 19-4-2005. Criminal revision application is allowed.