ALLAH DITTA Versus THE STATE

This order shall dispose of Criminal Appeal No.340 of 1999 and Criminal Miscellaneous No. l of 2002.

2. Appellapt Allah Ditta son of Bashir was tried for the murder of Muhammad Zafar deceased and while convicting him under section 302, P.P.C. read with section 306, P.P.C. the learned trial Court sentenced him for a term of 14 years and a Diyat amount of Rs.2,52,000 to be paid to the legal heirs of the deceased. The appellant has served out the entire period of sentence and he is now confined in Borstal Jail, Bahawalpur for the last 8 months on account of non‑payment of Diyat amount. Through Criminal Miscellaneous No.l of 2002, appellant's father has prayed that he and his son, the appellant, cannot pay the diyat amount and that State be directed to arrange the amount in question and he be released forthwith.

3. Since the appellant and his father pleaded that they could not pay the Diyat amount on account of their poverty a report was called from the District and Sessions Judge, Khanewal. The report of enquiry conducted by the District and Sessions Judge ‑has been received and is being placed on record as 'Mark‑A'. According to the said report which is based on statements of Local Councillor, Lumberdar and Nabi Bakhsh Chawkidar (statements of those witnesses have also been, attached with the report), the appellant and his father are labourer by proession and the do not own property movable or immovable..

4. Learned counsel for the appellant submits that since the appellant has served out his entire period of sentence and is confirmed in Borstal Jail, Bahawalpur for the last 8 months, he be released forthwith and the State be directed to pay the Diyat amount from the 'Bait‑ul‑Maal' fund or any other fund.

5. Learned did no contest the report submitted by the District and Sessions Judge with regard to the financial status of the appellant and his father but he contended that according to the spirit of section 331, P.P.C. any of the appellant's relatives be directed to pay the Diyat amount and till the amount is paid, he should remain confined in jail.

6. Heard.

7. Appellant does not challenge the conviction but has only prayed that since he and his father cannot pay the Diyat amount for lack of means, the State be directed to pay the said amount. For the better appreciation of the issue raised, it is relevant to refer section 331, P.P.C., which reads as under:‑‑

"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 (,in) full or may be released on bail if he furnishes security equivalent to the amount of Diyat to the satisfaction of the Court."

Can a riunor who has undergone the entire sentence of imprisonment but cannot poi' the Diyat amount be detained indefinitely? This question was considered by a learned Judge of this Court, in Mulraniniad Zafar v. The State (2001 YLR 533) and while disposing of the appeal in the said case, die trial Court was directed to hold an enquiry as to whether the appellant owned soine property or his ' Wali' were in a position to pay the Diyat amount arid if trey were not in a position to pay the said amount, the State was directed to make the payment. In terms. of the enquiry held by the trial Cuurt, it was found that the convict and his Wali were not in a position to pay the Diyat amount but despite that the State had not complied with the direction. The convict/appellant moved the said learned Judge through a civil miscellaneous application and sought conipliance of the direction given in appeal. The Court after hearing counsel for the applicant/appellant, the learned amicus curiae and the learned A.A.‑G., while releasing the appellant subject to his furnishing surety bonds in the sum of Rs.25,000 with one surety in the like amount to the satisfaction of the trial Court, held as under:‑‑

"As per inquiry conducted by the trial Court, Zafar petitioner/appellant or his Wali has no property and intention of law as noted above is Dear that An absence of any other source for payment, the Government is Wali for the minor offender and on also behalf of the legal heirs of the deceased, therefore, the direction already issued to the State vide judgment dated 22‑7‑1999 in Criminal Appeal No.737 of 1996 still holds the field and has attained the finality. Resultantly, the objection raised by the learned A.A.‑G. is repelled. The Home Secretary, Government of Punjab is directed to ensure the compliance of the direction issued by this Court for deposit of Diyat amount in the trial Court after taking up the matter with the concerned quarter also with the Authorities controlling ' Baitul Maal' within a period of 2 months after receipt of this order, failing which the trial Court shall take necessary steps for the recovery and payment of Diyat by attachment/ sale of State's movable or immovable property in accordance with law.

8. The State did not challenge the aforereferred judgment. The appellant, in the instant case, admittedly was a minor at the time of occurrence. His father is a poor anti old man, As per the report of the A District and Sessions Judge they are not in a position to pay the Diyat amount. Under the current state of unemployment the appellant even if he gets a menial job would not be able to save the Diyat amount of Rs.2,52,000 for the years to come. The provision for payment of Diyat in such circumstances entails uncertainty both for the intended beneficiary and for the convict particularly when he is a minor.

9. Under the new dispensation; tG law has provided for a different mode of trial, sentencing and releasing the minors on probation. Juvenile Justice System Ordinance, 2000 is benign and favourable to the accused. The appeal is continuation of trial. The aforereferred law, therefore, has to be given retrospective effect. Section 11 of the said Ordinance reads as under:‑‑

"Release on probation.‑‑ ‑Where on conclusion of an inquiry or trial, the Juvenile Court finds that a child has committed an offence, then notwithstanding anything to the contrary contained in any law for the time being in force, the Juvenile Court may, if thinks fit-----

(a) direct the child offender to be released on probation for good conduct and place such child under the care of guardian or any suitable person executing a bond with or without surety as the Court may require, for the good behaviour and well being of the child for any period not exceed the riot of imprisonment awarded to such child:

Provided that the child released on probation be produced before the Juvenile Court periodically on such dates and time as it may direct

(b) make an order directing. the child offender to be sent to a Borstal institution until he attains the age of eighteen years or for the eriod of imprisonment whichever is earlier;

(c) reduce the period of imprisonment or probation in the case where the Court is satisfied that further imprisonment or probation shall be ? unnecessary."

Keeping in view the law laid down in Muhammad Zafar v. The State (2001 YLR 533) referred to above, and the spirit of section 11 of the Juvenile Justice System Ordinance, 2000, 1 am inclined to allow Criminal Miscellaneous No. l of 2002 and direct as under:‑‑

(I) That the appellant shall be released ~on probation subject to his furnishing bond of good behaviour before the District and Sessions Judge, . Kharewal and the learned District and Sessions Judge shall ensure that he appears before him every month for a period of six months with a view to ensure that the .bond of good behaviour C submitted by him is acted upon in letter and spirit.

(II) ? The Home Secretary, Government of Punjab, shall ensure that amount of‑Diyat in the. instant case is deposited in the tizal Court by the State (for payment to the legal heirs) from ' Baitul Maal' or from any other fund within three months of the receipt of this order, failing which the learned trial Court shall take necessary steps for ? the recovery of the amount of Diyat by attachment/sale of movable or immovable property of the State in accordance with law.

N.H.Q./A‑457/L ????????????????????????????????????????????????????????????????????????????????? Petition allowed.