KALA KHAN vs THE STATE
This petition was filed seeking clarification of a previous judgment which maintained the petitioner's conviction but reduced the sentence to the period already undergone, while imposing fines under Section 409, Pakistan Penal Code 1860 and Section 5(2), Prevention of Corruption Act 1947. The petitioner argued that the judgment was silent regarding the consequences of default in payment of the fine and noted that he possessed no property from which the fine could be recovered. The core legal question was whether the court could clarify or alter the mode of recovery of a fine when the original judgment did not specify imprisonment in default and the convict lacked assets. The Court held that the judgment was clear and required no correction. It clarified that under Section 386, Code of Criminal Procedure 1898, where no imprisonment in default is ordered, the fine remains a debt recoverable from the convict's property, present or future, through civil process, but the convict cannot be detained in prison for non-payment.
- Can a court order the detention of a convict for non-payment of a fine if the original judgment did not impose imprisonment in default?
- What is the legal procedure for recovering a fine when a convict does not possess property at the time of sentencing?
- Does the absence of property ownership by a convict extinguish the liability to pay a court-imposed fine?
- Section 409, Pakistan Penal Code 1860
- Section 5(2), Prevention of Corruption Act 1947
- Section 386, Code of Criminal Procedure 1898
- Code of Civil Procedure 1908
ORDER
' JAMAL KHAN MANDOKHAIL, J.---This petition has been filed for the correction of the judgment dated 3rd November 2011, passed by this Court in Criminal Appeal No,288 of 2004, whereby the conviction awarded to the petitioner has been maintained by reducing the sentence in the following terms:- "The conviction awarded to the appellant is maintained. However, the sentences awarded to the appellant in both the sections are reduced to that already undergone. The amount of fine under section 409, P. P. C. Is reduced to 50,00,00 (Rupees Five Lac) and the amount of fine of Rs,20,00,000 (Rupees Twenty Lac) awarded to the appellant under section 5(2) of the Act(ii) 1947, is also reduced to that of Rs,50,00,00 (Rupees Five Lac). The amount of fine on both counts shall be recovered from the appellant from his property.. "
2. The learned counsel for the petitioner pointed out that though the petitioner/appellant was ordered to pay fine, but in default of payment of the fine, the order is silent. He stated that in the judgment, it is ordered that the amount of fine shall be recovered from the properties of the petition, but he does not have any property, therefore, he requested for the clarification of the judgment.
3. The learned State's counsel opposed the contention of the learned counsel for the petitioner and stated that the amount of fine is recoverable from the properties of the petitioner, therefore, the judgment impugned is clear and needs no clarification or correction.
4. I have heard the learned counsel for the parties and have perused the record of the case. The subject of levy of fine is governed by section 386, Cr.P.C. Which is reproduced hereinbelow:-- "Warrant for levy of fine.---(1) Wherever 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 [District Officer (Revenue)] authorizing him to realize 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 default, no Court shall issue such warrant."
5. Considering the judgment dated 3rd November, 2011, passed by this Court, it is clear that no direction for detention of the petitioner/appellant in default of payment of fine has been given. It has A specifically been mentioned that the amount of fine shall be recoverable from the movable or immovable properties, or both of the defaulter. The above provision of law suggests that in case of default in the payment of the fine, the amount can be recovered either by the attachment and sale of any property of the convict or the amount could be realized by the execution in accordance with the provision of the Civil Procedure Code 1908, and the nearest civil Court can execute it. In such-like cases, the executing Court can issue warrant to the District Officer (Revenue), B authorizing him to realize the amount by the execution ling to the civil process against the movable or immovable properties or both of the offenders. Proviso of the section 386, Cr.P.C. Is manifestly clear that in case, the offender has undergone the whole of the sentence or there is no order for imprisonment in default of the fine, no Court shall issue warrant of the arrest. This Court, while deciding the appeal, reduced the sentence of the petitioner/appellant awarded to petitioner by the trial Court to that already undergone, however, the amount of fine was ordered to be recovered from the movable or immovable properties of the petitioner. There is no order of imprisonment in default of the fine, C which means that the fine is still recoverable, but without the detention of the petitioner in the prison. If the petitioner does not own any property, the amount of the fine shall remain due against him, which could be recovered whenever he acquires the property in future.
In view of the above clarification, the petition is hereby dismissed.