GOVERNMENT OF PUNJAB, LAHORE vs ABID HUSSAIN and others

ORDER

1. ' IFTIKHAR MUHAMMAD CHAUDHRY, C J.--- Civil Appeals Nos. 66, 67 & 91 of 2003 along with Criminal Appeal No,223/2003 ' For the reasons to be recorded later, the appeals are disposed of in the following terms:--

(i) Sections 331, 337-X and 337-Y, P.P.C. Are intra vires of the Constitution of the Islamic Republic of Pakistan, 1973,

(ii) The Federal Government is hereby directed to frame Rules under Section 338-G, P.P.C. To give effect to these provisions of law, providing mechanism for creating the funds for the purpose of making payment of Diyat Arsh and Daman of the convicts, who on account of their weak financial position, are languishing in Jails for want of making the said payment, within a period of three months.

(iii) While framing the rules the possibility may also be examined as to whether out of the funds created, soft loans can be extended to the convicts, enabling them to satisfy the claim of the legal heirs of the deceased or victim. Simultaneously it would also be examined whether it would be possible for the Government to provide jobs to the convicts, other than the Government Departments through social organization or philanthropist, enabling the convicts to disburse the amount of loan, if extended to them.

(iv) A provision be also made available in the rules that in appropriate cases, the Trial Court may examine the question of release of such prisoners on parole, who, after having served out the substantive sentence of imprisonment, if any, are confined in Jails on account of non-payment of Diyat, Arsh and Daman.

(v) As an interim arrangement, the convicts, who have already undergone substantive imprisonment but are in Jails all over the country due to non-payment of Diyat or Arsh, shall be released forthwith under section 331(1) and 337-X, P.P.C., subject to furnishing security to the satisfaction of the District and Sessions Judge concerned for a period of three years, enabling them to make the payment Of Diyat and Arsh at their own resources in lump sum or in equal installments, or taking loans from the funds, created by the Government. Similarly, the convicts who are in jails only on account of non-payment of Diyat or Arsii, as no substantive imprisonment was awarded to them in accordance with law, shall also be released forthwith in the same manner, as noted herein above.

2. If the amount of Diyat and Arsh is not paid by a convict within the stipulated period, he shall be dealt with under sections 331(2) and 337-X(2), P.P.C.

(vi) The Federal Government shall also evolve a mechanism to ensure that the rights of the victims i,e, heirs of deceased and the injured for the purpose of Diyat, Arsh. And Daman are equally protected by making specific provision in the Rules.

(vii) The Federal Government shall also examine whether the period of three years under sections 331 and 337-X, P.P.C. Can be enlarged up to seven yers. Similarly, in section 337-Y, P.P.C., relating to payment of Daman, same provision will be incorporated as previously no such period was provided perhaps on account of some omission.

3. (viii)The above arrangements shall continue till the framing of the Rules by the Federal Government. Thereafter the cases of such convicts shall be dealt with accordingly, under the said Rules.

4. ' The appeals are disposed of in above terms. However, the matter shall be fixed before the respective benches of the Court for decision on merits.

5. Criminal Petition No,433-L of 2002 ' Instant petition is disposed of in view of the above judgment with the observations that respondent Zafar shall be dealt with for payment of Diyat in accordance with law.

6. Criminal. Petition No,292-L of 2003 ' Similarly in view of the judgment announced in the appeals listed above instant petition has become infructuous, as such the same is dismissed accordingly.