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Petitioner: MUHAMMAD AKHTAR VS Respondent: StateHonorable Justice M. BILAL KHANNazeer Ahmad Ghazi,Faisal Ali Qazi, A.A.-G.
2007 P Cr
2007 P Cr. L J 281
[Lahore]
Before M. Bilal Khan and Tariq Shamim, JJ
MUHAMMAD AKHTAR----Appellant
Versus
THE STATE and 4 others----Respondents
Intra-Court Appeal No.104 of 1998 in Writ Petition No.22817 of 1997, heard on 6th November, 2006.
Penal Code (XLV of 1860)---
----Ss. 302(b), 316 & 315---Criminal Procedure Code (V of 1898), S.544-A---Constitution of Pakistan (1973), Art.199---Law Reforms Ordinance, 1972, S.3(2)---Intra-Court appeal---Amount of Diyat awarded by High Court while deciding criminal appeal---Constitutional petition against finding of High Court in criminal appeal---Maintainability---Petitioner/accused was convicted by Trial Court under S.302(b), P.P.C. and was sentenced to imprisonment for life as Ta'zir with direction to pay Rs.30,000 as compensation to legal heirs of deceased---High Court, in appeal filed thereagainst, held that as offence committed by petitioner/accused fell under S.315, P.P.C. punishable under S.316, P.P.C. therefore, conviction under S.302(b), P.P.C. and sentence of imprisonment for life as Ta'zir awarded to petitioner was not maintainable---Conviction of petitioner was converted from S.302(b) to S.316, P.P.C. and he was sentenced to rigorous imprisonment for 10 years as Ta'zir with direction to pay Diyat amount of Rs.1,89,906 to legal heirs of deceased---Petitioner filed constitutional petition to the effect that he be released from custody after completion of term of his sentence and Chairman of Provincial and Central Baitul Mal be directed to pay Diyat amount to legal heirs of deceased keeping in view financial position of petitioner---Constitutional petition was dismissed by High Court and petitioner filed Intra-Court Appeal against finding of single Judge---Validity---Amount of Diyat having been awarded by the High Court, constitutional petition was not competent against High Court.
Mian Jamal Shah v. Member Election Commission Government of Pakistan and others PLD 1966 SC 1 rel.
Nazeer Ahmad Ghazi for Appellant.
Faisal Ali Qazi, A.A.-G. for the State.
Date of hearing: 6th November, 2006.
JUDGMENT
M. BILAL KHAN, J.--- Through this Intra-Court Appeal, the appellant has called in question the order, dated 10-10-1997, whereby appellant's Writ Petition No.22817 of 1997 had been dismissed by a learned Single Judge in Chambers.
2. Precisely the facts giving rise to this appeal were that the appellant was tried by the learned Sessions Judge, Gujranwala for the murder of Muhammad Yousaf and was awarded punishment of imprisonment for life as Ta'zir under section 302(b), P.P.C. with further direction to pay a sum of Rs.30,000 to the legal heirs of the deceased by way of compensation as envisaged under section 544-A, Cr.P.C. or in default of payment thereof to further undergo simple imprisonment for five months vide judgment, dated 26-4-1993; benefit of section 382-B, Cr.P.C. had also been extended to him; his appeal bearing Criminal Appeal No.394 of 1993 had been disposed of by a learned Single Bench of this Court vide judgment, dated 6-5-1996 with the modification in the sentence, which had been converted into rigorous imprisonment for ten years as Ta'zir under section 316, P.P.C. with further direction to pay Diyat of Rs.1,89,906; thereafter he had approached this Court by filing Writ Petition No.22817 of 1997 praying therein that he be released from custody after completion of the term of his sentence and respondents Nos.3 and 4 therein (Chairman, Provincial Baitul Mal, Lahore and Chairman, Central Baitul Mal, Islamabad) be directed to pay "Diyat" to the legal heirs of the deceased keeping in view his financial position; the learned Single Judge in Chambers vide the impugned order, dated 10-10-1997 proceeded to dismiss the said writ petition. It was this order, which had been challenged by the appellant through the instant appeal.
3. We have heard the learned counsel for the appellant as also the learned Law Officer appearing on behalf of the State. This I.C.A. is liable to be dismissed at least on two grounds. Firstly, it is absolutely clear that no writ lies against the High Court. It would be advantageous to reproduce the prayer, made in Writ Petition No.22817 of 1998, which has given rise to the instant I.C.A.:--
"Under the above circumstances, it is respectfully prayed that the imposition of amount of "Diyat" being not commensurate with the financial position of the petitioner and his confinement in jail till the realization of the above amount are without lawful authority and it may be directed that the petitioner may be released on completion of his sentence of ten years' R.I.
In the alternative, it is further prayed that the respondents Nos.2 and 3 may kindly be directed to pay "Diyat" amount to the legal heirs of the deceased and the petitioner may be released.
It is further prayed that the respondents Nos.4 and 5 may be directed to verify the financial position of the petitioner and also submit the report in this Honourable Court.
Any other relief which this Honourable Court deems proper in the circumstances of the case may also be granted to the petitioner."
It is an admitted position that the appellant had been convicted under section 302(b), P.P.C. and was sentenced to undergo imprisonment for life as Ta'zir with further direction to pay Rs.30,000 to the legal heirs of the deceased under section 544-A, Cr.P.C. as compensation or in default of payment thereof to further undergo simple imprisonment for five months. The appellant filed an appeal and this Court held that the offence committed by the appellant falls under the category of Qatl-i-Shibh-i-Amd as defined in section 315, P.P.C. punishable under section 316, P.Y.C., therefore, conviction under section 302(b), P.P.C. and sentence of imprisonment for life as Ta'zir awarded to the appellant was not sustainable. Resultantly, the conviction of the appellant was converted from section 302(b), P.P.C. to section 316, P.P.C. and he was sentenced to rigorous imprisonment for ten years as Ta'zir with further direction to pay Diyat as fixed by the Federal Government i.e. Rs.1,89,906. It is thus, clear that the amount of Diyat was awarded by this Court, therefore, writ petition was not competent against the High Court. The learned Single Judge in Chambers had rightly relied on the case of Mian Jamal Shah v. Member, Election Commission Government of Pakistan and others PLD 1966 SC 1.
4. Secondly, this I.C.A. is not maintainable as in the constitutional petition, the order of the High Court had been challenged, which was an appellate order passed in appeal against conviction and sentence of the appellant in a criminal trial. As such I.C.A. is barred under the proviso of section 3(2) of the Law Reforms Ordinance, 1972.
5. Resultantly, this I.C.A. being not maintainable is hereby dismissed.
S.M.B./M-700/L????????????????????????????????????????????????????????????????????????????????? I.C.A. dismissed.