ZAFAR Versus STATE

ORDER

1. The facts forming background for instant miscellaneous application are that Zafar son of Muhammad Ali was tried under section 302/34, P.P.C. alongwith Allah Ditta son of Lala, for commission of murder of Muhammad Sharif and were convicted by learned Additional Sessions Judge, Chiniot, who convicted and sentenced Zafar under section 308, P.P.C. to 14 years' R.I. and to pay an amount of Rs. 2,00,000 as Diyat to the legal heirs of deceased while Allah Ditta under section 302(b), P.P.C. to imprisonment for life and compensation of Rs.10,000 to be paid to legal heirs of deceased. Both the convicts Zafar and Allah Ditta had challenged their conviction and sentence through Criminal Appeal No.737 of 1996 which was heard and. decided by this Court vide judgment, dated 22-7-1999 whereby Allah Ditta, accused was acquitted while conviction of Zafar, was maintained, but the sentence was reduced from 14 years to 10 years' R.I. As far as payment of Diyat to the legal heirs of the deceased was concerned, it was argued on his behalf that he was not in a position to make the payment of Diyat as he had no property, therefore, the trial Court was directed to hold an inquiry as to whether the appellant owns some property or his Wali is in a position to pay the Diyat amount, if not then the State was ordered to make the payment.

2. Instant C.M. has been moved on behalf of Zafar, appellant alleging that the learned trial Court/Additional Sessions Judge, Chiniot had conducted detailed inquiry and reported on 2-10-1999 that neither Zafar, appellant nor his Wali has any property. The report was submitted to Deputy Registrar (J) of this Court, on which District and Sessions Judge, Jhang was directed for compliance of judgment, dated 22-7-1999 for recovery of the Diyat and to be paid to the legal heirs of the deceased. This direction was issued on 7-7-2000. Learned Sessions Judge, thereafter ordered the District Magistrate/D.C. to arrange for the payment of Diyat being representative of the Government/State at District level. The order was not complied with.

3. Learned counsel for the petitioner/appellant Zafar contends that convict has served out his entire sentence and now he is only confined for non-payment of Diyat but as per inquiry conducted, neither he nor his Wali has any property for realization of the Diyat, therefore, as per judgment, dated 22-7-1999 the State is responsible for making payment to the legal heirs of the deceased and the appellant cannot be kept in Jail. The judgment, dated 22-7-1999 has attained the finality as the State has not challenged the same.

4. Learned Additional Advocate -General was asked to assist this Court. Mr. Muhammad Nasim Sabir Chaudhary, learned Additional Advocate-General has seriously opposed the petition and raised objection that the Government has no funds to liquidate the personal liability 'of an accused, therefore, the direction issued by this Court cannot be complied with.

5. In view of important question of law involved in the matter, Dr. Riaz-ul-Hassan Gillani, learned Advocate was asked to assist this Court as amicus curiae.

6. Learned counsel for the petitioner in support of his application has raised following contentions:--

(a) That in 1st proviso of section 308, P.P.C. it is provided that if the offender is minor or insane ' Diyat' shall be payable either from his property or by such person as may be determined by the Court and as a result of the inquiry it has been found that the offender has no property from where the Diyat amount is to be recovered and paid to the legal heirs of the deceased.

(b) Under section 205(b), P.P.C., Wali in case of Qatl shall be the Government if there is no heir.

(c) Under section 310(3), P.P.C. it has been provided that where the Government is the Wali, it may compound the right of Qisas.

(d) Under section 313(2)(a), P.P.C. if the victim has no Wali, the Government shall have the right of Qisas.

(e) In proviso (2) to section 313, RP.C, it has been mentioned that if the minor has no father, grandfather, how highsoever alive and no guardian is appointed by the Court, the Government shall have the right of Qisas on his behalf.

(f) Under section 314, P.P.C., it is provided that at the time of execution of Qisas in Qatl-e-Amad the Qisas shall not be executed until all the Walis are present at the time of execution either personally or through their representatives and where a Wali or his representative falls to present himself then the Government shall cause execution of Qisas in absence of such Wali.

7. Lastly, the learned counsel has made reference to judgment reported as 1999 SCMR 2652 (at page 2657) wherein it has been observed by the Hon'ble Supreme Court that in case the offender is minor, the Court has to find out the source from which Diyat has to be paid and the person who shall pay the Diyat and then to pass appropriate direction this necessarily entails an inquiry and as to whether the minor owns any property and if so who is the person in custody of that property so direction can be made to pay the Diyat or there is no person liable to make the payment e.g. an Insurance Company, etc.

8. Learned counsel for the petitioner has concluded his arguments by arguing that in the instant case the inquiry, as observed by the Hon'ble Supreme Court, has been conducted and the offender or his Wali has no property, therefore, the Government is to be considered as Wali of the offender and should arrange for the payment of the Diyat and the petitioner/appellant cannot be detained for non-payment of Diyat and be ordered to be released forthwith.

9. Dr. Riaz-ul-Hassan amicus curiae has adopted the arguments of the learned counsel on behalf of the petitioner and further made reference to ((Allama Alli-o-din Al-qasasni Jild Huftam Badia-ul-Shania Taleef) wherein it has been stated that (Aaqliah) is the (Wali) of the offender and (Aaqliah) has been defined as (Qabilah) and the (Biat-ul-Mall) has been considered as ( Aaqliah) for payment of diyat of the people who are unable to pay the same. It has been elaborated that 'Diyat' is to be recovered from the property of offender but in case he has no property then (Aaqliah) has to bear/make the payment for contribution by the (Qabilah) but if there is no (Qabilah) then the Muslims in general have to contribute and (Biat-ul-Mall) is property of the Muslims; therefore, it includes in ( Aaqliah ) to liquidate the liability of the offender.

10. After giving due consideration to the contentions raised at the bar and after re-examination of the provisions of the law, I agree with the arguments advanced on behalf of the petitioner. As per inquiry conducted by the trial Court, Zafar petitioner/appellant or his Wali has no property and intention of the law as noted above is clear that in 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.

11. Resultantly, the objection raised by the learned Additional Advocate-General is repelled. The Home Secretary, Government of the 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 authorities controlling 'Baitul Maal', within a period of two months after receipt of this order; failing which the trial Court take necessary steps for the recovery and payment of Diyat by attachment/sale of State movable or immoveable property in accordance with law.

12. Zafar petitioner/appellant if has served out his substantial sentence and is detained only for the payment of Diyat, he is ordered to be released from jail 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 so that his presence be secured at any time if he is needed for further proceedings in this matter.

13. Before departing with order, I acknowledge the assistance rendered by Mr. Hassan Qadir, learned counsel for the petitioner, Dr. Riaz-ul-Hassan Gillani, amicus curiae and Mr. Muhammad Nasim Sabir Chaudhry, learned Additional Advocate-General, on the. question of public importance involved in the instant petition.

14. N.H.Q./Z-49/L Petition accepted.