LIAQAT ALI Versus State
KHADIM HUSSAIN TUNIO, J.--- Liaqat Ali Cheema was booked and tried in case FIR No. 76 of 2014 for the offence under sections 324, 337-H(2), 147, 148, 149, P.P.C. registered at Police Station Tando Masti Khan and in consequence whereof he was convicted by the trial court under section 324 read with section 149, P.P.C., 337-H(2), 147 and 148, P.P.C. and was sentenced to suffer R.I. for five years and fine of Rs.5,000/= in default he shall suffer S.I. for one month more and pay daman of Rs.50,000/-. The benefit of section 382-B, Cr.P.C. was extended.
2. Briefly, facts of the prosecution case, according to the FIR, are that on 22-05-2014, the appellant along with co-accused entered into the agricultural land of complainant, armed with deadly weapons, while the complainant party were irrigating their land, with the intention to commit Qatl of the complainant's brother, the appellant. made straight fire on them and his farmer Aijaz Ali sustained fire arm injury, hence the FIR.
3. At trial, the prosecution examined in all 5 witnesses namely Abdul Ghafoor Gorayo, Aijaz Ali Virk, Abdul Sattar Virk, SIP Zafarullah Bajwa and M.O. Muhammad Hamid Morejo.
4. Statement of accused was recorded under section 342, Cr.P.C. to which he denied the allegations levelled against him by the prosecution and stated that the complainant has roped him in this false case due to enmity over landed property, however, he did not examine himself on oath nor led any evidence in his defence.
5. Trial court after hearing learned Advocates for the parties and assessment of evidence, convicted and sentenced accused as stated above.
6. Learned counsel for the appellant has submitted that the appellant does not want to contest this appeal on merits and but only prays for reduction of daman amount from Rs. 50,000/- to rupees 5,000/-. As against that, learned A.P.G Sindh appearing for the State submitted that the incidents had taken place in this case wherein the victim had received the injuries thus appellant does not deserve any sympathy in the matter of reduction of their compensatory amount.
7. Though the appellant has confined his appeal to extent of reduction of Daman amount from Rs.50,000/- to Rs.5,000/- whereby not challenging the conviction, so awarded by the trial Court. However, the perusal of the record shows that appellant had caused injuries in a brutal manner and prosecution did bring sufficient evidence to establish the charge against the appellant for the offences wherein he has been convicted in absence of any prima facie illegality or mis-reading of the evidence resulting into miscarriage of justice the interference into conclusion of conviction even would not be necessary. Accordingly, the instant appeal is and all the conviction and sentences against appellant are upheld except daman amount to which I shall come later.
8. It would suffice for the plea of appellant regarding reduction of Daman amount that "Daman" is not a sort of compensation but is a "punishment" as defined by section 53 of the Code (P.P.C.) hence payment thereof cannot be relaxed merely by remaining in jail. The daman amount is determined by the Court within meaning of section 337-Y which reads as:-
"Value of daman: (1) The value of daman may be determined by the Court keeping in view:- a) the expenses incurred on the treatment of victim; b) loss or disability caused in the functioning or power of any organ; and c) the compensation for the anguish suffered by the victim the appellant has not been able to pin-point any illegality in Daman amount, so determined by trial Court or that such determination is excessive or is in deviation to above criterion. In absence thereof the appellant legally cannot press reduction of the amount, so determined by the trial Court. However, since the subsection (1a) and (2) of section 337-Y itself provides as:-
"(1a) the daman may be made payable in lump sum or in installments spread over a period of five years from the date of the final iudgment;)
"(2) Where a convict fails to pay daman or any part thereof within the period specified in subsection (la), the convict may be kept in jail and dealt with in the same manner as if sentenced to simple imprisonment until daman is paid in full or may be released on bail if he furnishes security or surety equivalent to the amount of daman to the satisfaction of the Court or may be released on parole as may be prescribed in the rules ).
9. From above, it would require no more debate that there can be no exception to payment of the 'daman' amount hence the Courts cannot make payment thereof subject to any detention period in jail. In short, either the convict has to remain in jail till payment of daman amount or may be released on bail which too with an object to enabling the convict to pay the daman amount in full or installment. Therefore, I find it in all fairness that amount of daman shall be paid by the convict/appellant in ten monthly installments of Rs.5,000/- each, to be deposited with the trial Court on or before 5th of every calendar month. The installment would commence from date of the judgment. I note that the occurrence in this case had taken place in the year 2014 i.e. 3 years ago and the appellant had been sentenced by the trial court to five years hence if period of sentence completes before completion of payment of full daman amount then he shall be released on bail subject to furnishing solvent surety in the sum of Rs. 50,000/- which (surety) would continue under obligation till payment of full daman amount. Needless to add that in case of default such amount (remaining daman amount) would be recoverable from the surety directly. The judgment is modified only to such extent i.e. manner of payment of daman.
This appeal is disposed of in these terms.
HBT/L-6/Sindh Order accordingly.