BASHIR AHMED vs MUHAMMAD SIDDIQUE and another

ORDER

' SAAD SAOOD JAN, J.---The petitioner was convicted by the Additional Sessions Judge at Khanewal of offences under section 302 (two counts) and was sentenced to death under each count. He was also directed to pay fine in the sum of Rs,2,000 in respect of each count. On appeal and reference, the High Court maintained his convictions and confirmed the sentences of death and fine. On further appeal by special leave to this Court his convictions were altered from under section 302 to section 304, Part I, and he was sentenced to imprisonment for life. Both sentences were ordered to run concurrently and he was given the benefit of the provisions of section 382-B, Criminal Procedure Code, in the matter of computation of the sentences. However, the sentences of fine were increased to Rs,20,000 under each count.

' In default of the payment of fines he was directed to suffer rigorous imprisonment for a period of six months. It was also directed that in the event the fines were realised these were to be paid to the heirs of the two deceased by way of compensation. The petitioner did not pay the fines and instead suffered the sentence of imprisonment which was imposed in lieu thereof. Subsequently, the respondent who is the heir of the two deceased moved the Court for the issuance of a warrant to the Collector for the realisation of the fines. The application was allowed and a warrant to the Collector was issued. The petitioner filed a revision petition in the High Court to call in question the legality of the order of the learned trial Court. A learned Single Judge thought that the order of the learned trial Court was perfectly justified and in accordance with law. Accordingly, he dismissed the revision petition. The petitioner seeks leave to appeal from the order of the High Court.

2. After hearing the learned counsel for the parties we convert this petition into appeal.

3. The operative part of the judgment of the Supreme Court reads as follows:-- "We would convert his conviction from section 302 read with section 34, P.P.C. On two counts to section 304, Part I, P.P.C. On these counts and substitute the sentence of tranportation for life on each count. We further direct that in computing his sentence the period during which he remain in detention should be counted as provided by section 382-B, Cr.P.C. The sentences are ordered to run concurrently. However the fine on each count is enhanced to Rs,20,000 or in default to suffer R.I.

For six months therefor. The fine if realised shall be paid to the heirs of the deceased."

It is clear from this part of the judgment that the fines had been imposed upon the petitioner under section 304, Part I, and not under section 544-A, Criminal Procedure Code, and that these were to be paid, only if realised, to the heirs of the deceased by way of compensation. Thus, so far as the petitioner is concerned these were sentences of fine and all the provisions relating to the levy and recovery of fines were to apply in giving effect to this part of his sentences. Section 386(1), Criminal Procedure Code, reads as follows:-- "Whenever 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 Collector of the District authorising him to realised 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 in default, no Court shall issue such warrant.

The proviso to the subsection appears to be attracted to the case before us. According to the proviso if the convict has already suffered the imprisonment which has been imposed upon him in default of payment of fine the Court will not issue a warrant for the levy of the fine. Admittedly, the petitioner has already suffered the imprisonment which he was to undergo in the event he did not elect to pay the fines. In the circumstances, by virtue of the bar created by the proviso the trial Court could not issue a warrant to the Collector for the realisation of the fines.

3. For the reasons stated above we accept this appeal, set aside the orders of the High Court and the trial Court and withdraw the warrant issued to the Collector.