P L D 2007 Supreme Court 315

Present: Iftikhar Muhammad Chaudhry, C.J., Javed Iqbal, Abdul

Hameed Dogar, Mian Shakirullah Jan and Saiyed Saeed Ashhad, JJ

GOVERNMENT OF PUNJAB, LAHORE---Petitioner

Versus

ABID HUSSAIN and others---Respondents

Civil Appeals Nos.66, 67 and 91 of 2003, along with Criminal Petitions

Nos. 433-L/2002, 292-L/2003 and Criminal Appeal No.223 of 2003, decided
on 14th December, 2006.

(On appeal from the judgment/order of Lahore High Court Lahore dated
13-8-2002 passed in Writ Petitions Nos.11242/2001, 6370/2002, dated 22-
11-2002 in W.P. No.20432/2002, dated 25-5-2001 in Cr.Misc. 96-M/2001 in
Cr.A. 737/96, dated 30-4-2003 in Cr.A. No.707/2003 and judgment/order of
Peshawar High Court Peshawar dated 15-1-2002 passed in Jail Cr.A. 5 of
2001.)

(a) Penal Code (XLV of 1860)---

----Ss. 331, 337-X & 337-Y---Constitution of Pakistan (1973), Art.184(3)---

Vires of Ss.331, 337-X & 337-Y, P.P.C.---Sections 331, 337-X & 337-Y, P.P.C.
are intra vires to the Constitution.

(b) Penal Code (XLV of 1860)---

----Ss. 331, 337-X, 337-Y & 338-G---Constitution of Pakistan (1973),

Art.184(3)---Constitutional petition under Art.184(3) of the Constitution---
Supreme Court directed the Federal Government to frame Rules under
S.338-G, P.P.C. to give effect to Ss.331, 337-X & 337-Y, P.P.C. providing
mechanism for creating the funds for the purpose of making payment of
Diyat, Arsh and Daman of the convicts, who, on account of their weak
financial position were languishing in Jails for want of snaking the said
payment, within a period of three months; possibility while framing the
rules may also be examined as to whether out of the created funds, soft
loans could be extended to the convicts enabling them to satisfy the claim
of the legal heirs of the deceased or the victim: Government would also
examine the possibility to provide jobs to the convicts, in other than the
Government Departments through social organization or philanthropist,
enabling them to disburse the amount of loan, if extended to them, rules
should also provide that in appropriate cases trial Court may examine
the question of release of such prisoners on parole, who after having
served out the substantive sentence of imprisonment, if any, were
confined in jails on account of non-payment of Diyat, Arsh and Daman;
convicts who had already undergone substantive imprisonment but
were in Jails all over the country due to non-payment of Diyat or Arsh,
shall be released forthwith under Ss. 331(1) and 337-X, P.P.C. as an
interim arrangement, subject to furnishing security to the satisfaction of
the District and Sessions Judge concerned for a period of three years,
enabling them to make the payment of Diyal and Arsh at their own
resources in lump sum or in equal instalments, or taking loans from the
funds created by the Government; similarly convicts who were in Jail
only on account of non-payment of Diyat or Arsh, as no substantive
imprisonment was awarded to them in accordance with law, shall also be
released forthwith in the same manner, as noted herein above; in case a
convict fails to pay the amount of Diyat and Arsh within the stipulated
period, he shall be dealt with under Ss.331(2) and 337-X(2), P.P.C.; Federal
Government shall also evolve a mechanism to ensure that the rights of
the victims i.e., heirs of the deceased and the injured, for the purpose of
Diyat, Arsh and Daman were equally protected by making specific
provision in the rules; Federal Government shall also examine whether
the period of three years under Ss.331 and 337-X, P.P.C. could be enlarged
up to seven years and similarly in S.337-Y, P.P.C. relating to payment of
daman, same provision will be incorporated as previously no such
period was provided, perhaps on account of same omission---Such
arrangement shall continue till the framing of the Rules by the Federal
Government and thereafter the cases of such convicts shall be dealt with
accordingly under the said Rules.

M. Hanif Khattana, Addl. A.-G. Punjab and Ms. Afshan Ghazanfar, A.A.-G.
for Appellant/Petitioner (in Cr.As. Nos. 66-67 and Cr.P. No.433-L/2002).

Ms. Hafza Aziz, Advocate Supreme Court for Appellant (in C.A. No.91 of
2003).

M.D. Tahir, Advocate Supreme Court for Appellant (in Cr.P.No.292-L of

2003).

Syed Ali Hasan Gillani, Advocate Supreme Court for Appellant (in
Cr.A.223 of 2003).

Nasir Saeed Sheikh, Deputy Attorney-General and Mansoor Ahmed,

Secretary, LJ&PA for Respondents (in C.A. 91 of 2003).

Dr. Muhammad Aslam Khaki, Advocate Supreme Court: Amicus Curaie.

M. Bilal, Senior Advocate Supreme Court on behalf of A.G. (N.-W.F.P.).

Mehmood Raza, Addl. A.G., Balochistan for Government of Balochistan.

Ch. Muhammad Rafique Rajoorvi, Addl. A.-G. Sindh for the Government
of Sindh.

Sheikh Riazul Haq, Advocate Supreme Court/Legal Advisor, Pakistan

Baitul Mall.

Syed Mansoor Gardezi, Dy. Director (Legal) Pakistan Bailtul Mall.

ORDER

IFTIKHAR MUHAMMAD CHAUDHRY, C J.---

Civil Appeals Nos. 66, 67 & 91 of 2003

along with Criminal Appeal No.223/2003

For the reasons to be recorded later, the appeals are disposed of in the
following terms:

(i) Sections 331, 337-X and 337-Y, P.P.C. are intra vires of the
Constitution of the Islamic Republic of Pakistan, 1973.

(ii) The Federal Government is hereby directed to frame Rules

under Section 338-G, P.P.C. to give effect to these provisions of law,
providing mechanism for creating the funds for the purpose of
making payment of Diyat Arsh and Daman of the convicts, who on
account of their weak financial position, arc languishing in Jails for
want of making the said payment, within a period of three months.

(iii) While framing the rules the possibility may also be examined
as to whether out of the funds created, soft loans can be extended
to the convicts, enabling them to satisfy the claim of the legal heirs
of the deceased or victim. Simultaneously it would also be
examined whether it would be possible for the Government to
provide jobs to the convicts, other than the Government
Departments through social organization or philanthropist,
enabling the convicts to disburse the amount of loan, if extended
to them.
 (iv) A provision be also made available in the rules that in
appropriate cases, the Trial Court may examine the question of
release of such prisoners on parole, who, after having served out
the substantive sentence of imprisonment, if any, are confined in
Jails on account of non-payment of Diyat, Arsh and Daman.

(v) As an interim arrangement, the convicts, who have already

undergone substantive imprisonment but are in Jails all over the
country due to non-payment of Diyat or Arsh, shall be released
forthwith under section 331(1) and 337-X, P.P.C., subject to
furnishing security to the satisfaction of the District and Sessions
Judge concerned for a period of three years, enabling them to
make the payment of Diyat and Arsh at their own resources in
lump sum or in equal instalments, or taking loans from the funds,
created by the Government. Similarly, the convicts who are in jails
only on account of non-payment of Diyat or Arsh, as no
substantive imprisonment was awarded to them in accordance
with law, shall also be released forthwith in the same manner, as
noted herein above.

If the amount of Diyat and Arsh is not paid by a convict within the
stipulated period, he shall be dealt with under sections 331(2) and
337-X(2); P.P.C.

(vi) The Federal Government shall also evolve a mechanism to

ensure that the rights of the victims i.e. heirs of deceased and the
injured for the purpose of Diyat, Arsh and Daman are equally
protected by making specific provision in the Rules.

(vii) The Federal Government shall also examine whether the

period of three years under sections 331 and 337-X, P.P.C. can be
enlarged up to seven years. Similarly, in section 337-Y, P.P.C.,
relating to payment of Daman, same provision will be
incorporated as previously no such period was provided perhaps
on account of some omission.

(viii) The above arrangements shall continue till the framing of the
Rules by the Federal Government. Thereafter the cases of such
convicts shall be dealt with accordingly, under the said Rules.

The appeals are disposed of in above terms. However, the matter shall be
fixed before the respective benches of the Court for decision on merits.

Criminal Petition No.433-L of 2002

Instant petition is disposed of in view of the above judgment with the
observations that respondent Zafar shall be dealt with for payment of
Diyat in accordance with law.

Criminal Petition No.292-L of 2003

Similarly in view of the judgment announced in the appeals listed above

instant petition has become infructuous, as such the same is dismissed
accordingly.

N.H.Q./G-2/S Order accordingly.

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