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Petitioner: ABID HUSSAIN and another VS Respondent: CHAIRMAN,. PAKISTAN BAIT-UL-MAL and JUDGMENT
Court Name: Lahore High Court Judge(s): Asif Saeed Khan Khosa Title:ABID HUSSAIN and another vs CHAIRMAN,. PAKISTAN BAIT-UL-MAL and
JUDGMENT
Reported As: PLD 2002 Lahore 482 Result: Order accordingly Judgment JUDGMENT Putting a human being, the best of Almighty Allah's creations (Al-Qur'an: Sura 95: Verse 4), in an iron cage for the rest of his life for no other reason than his abject poverty is an idea abhorrent to the 'dignity' bestowed upon him by the Creator (Sura 17: Verse 70). When the Holy Qur'an enjoins upon the believers to spend on prisoners, slaves and those in debt and for saving their necks and for lessening of their burdens (Sura 76: Verse 8, Sura 2: Verse 177 and Sura 9: Verse 60) it sends an unmistakable message that what is to be hated is crime and not the criminal and the unfortunate predicament of such a human being is to be visited with compassion and Mercy wherever and however, possible. It is manifestly in this backdrop that the Constitution of the Islamic Republic of Pakistan, 1973 ensures it as a Fundamental Right guaranteed by Article 14 thereof that the dignity of man is inviolable. In the case of In re: Suo Mom Constitutional Petition (1994 SCMR 1028) the Hon'ble Supreme Court of Pakistan had unequivocally declared that even the worst criminal is entitled to his dignity as a man and the crime committed by him does not denude him of such a right which is referable to his belonging to the human race and not to his belonging to the community of criminals. 2. The plight of Abid Hussain petitioner, one such unfortunate human being and citizen, is the subject-matter of Writ Petition No,11242 of 2001 filed through Mr. M.D. Tahir. Advocate. The same learned Advocate has also filed Writ Petition No,6370 of 2002 before this Oourt highlighting the unfortunate predicament of many others who, like Abid Hussain petitioner, are facing the same ordeal and don't even have the means to approach this Court through a proper petition. I have
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heard both these petitions together as they involve common questions of law and 1 propose to decide them together through the present consolidated judgment. 3. Abid Hussain petitioner was convicted for an offence under section 316 of the Pakistan Penal Code, 1860 (hereinafter referred to as P.P.C.) vide judgment dated 3-5-1994 handed down by the learned Additional Sessions Judge, BhalwaL District. Sargodha and was sentenced to imprisonment for life and to pay a sum of Rs,3,50,000 to the heirs of the victim by way of Diyat. The said petitioner, according to the learned counsel for the petitioner, has already served out his substantive, sentence of imprisonment but he is presently being detained at the Central Jail, Mianwali only on account of his failure to pay the requisite amount of Diyat. According to the learned counsel for the petitioner the said petitioner has absolutely no means to pay the requisite amount of Diyat and so far none of his relatives, friends or others have come forward to pay the same on his behalf and, thus, as per the present interpretation of the provisions of section 331, P.P.C., Abid Hussain petitioner is to languish in jail for the rest of his life till he dies or till somebody pays the amount of Diyat on his behalf. Mr. M.D. Tahir, Advocate has also 'referred to the plight of one Feroze son of Sarja who was convicted for an offence under section 306, P.P.C. Vide judgment dated 18-2-1991 rendered by the learned Sessions Judge, Sargodha and was sentenced under section 308, P'.P.C. To rigorous imprisonment for ten years and to pay a sum of Rs,2,75,000 to the heir of the victim by way of Diyat. The said convict has also already served out his substantive sentence of imprisonment and presently he is being detained, in the Central Jail, Mianwali only on account of non-payment of the amount of Diyat According to Mr. M.D. Tahir, Advocate the said convict, on account of his extreme poverty, has no means to pay the amount of Diyat and nobody has so far volunteered to pay the same on his behalf. A reference in this regard has been made to the documents appended with Writ Petition No,6370 of 2002 as Annexures B and C to point out that even the father of that convict is a destitute who is receiving assistance from the local Zakat and Ushr Committee for his own survival and sustenance. Mr. M.D. Tahir, Advocate had informed this Court at the initial stage of hearing of these petitions that his own personal visits to various jails in the Province of the Punjab had revealed that scores of other convicts were also languishing in various jails of the Province whose tales of woes in this regard stemming from their extreme poverty were no different from those of the above mentioned Abid Hussain petitioner and Feroze son-of Sarja. 4. On 16-4-2002 this Court had admitted Writ Petition No,6370 of 2002 to regular hearing and it was observed in the order passed on that date that the following points, inter alia, required consideration: "(i) Whether a person can be imprisoned for more period than is prescribed for an offence? (ii) Whether such a. Person is also to be punished for his poverty besides the offence he has committed? (iii) Whether there is any way or any legal dispensation whereby payment can be made for such prisoners from any fund for securing their release? (iv) Whether the relevant law in this regard which requires such a prisoner to be kept in jail for an indefinite period is in consonance with Islamic dispensation of justice? (v) Whether the law- in this regard is unreasonable and oppressive and the same needs to be struck down or suitably amended? (vi) Whether the Zakat or Bait-ul-Mal Funds can be utilized for the benefit of such prisoners who are-otherwise adjudged criminals?" Through the same order the office of this Court was directed to issue notice to the learned Attorney-General for Pakistan and the learned Advocate-General, Punjab and Dr. Syed Riaz-ul- Hassan Gilani, Syed Afzal Haider, Syed Shabbar Raza Rizvi and Mr. Umar Ata Bandial, Advocates were requested to assist the Court as amicus curiae.
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5. On the subsequent dates of hearing of these petitions I had the privilege of hearing at length not only the learned counsel for the petitioner but also the learned Deputy Attorney-General, the learned Law Officer appearing on behalf of the learned Advocate-General, Punjab and the learned counsel appearing as amicus curiae who assisted the Court very ably. A report Was also submitted before the Court by the Inspector-General of Prisons, Punjab pointing out that as on 23-5-2002 as many as 145 prisoners were lodged in different jails in the Province of the Punjab who have already served out their substantive sentences of imprisonment and are being detained in jail only on account of non-payment of Diyat, Arsh or Daman. Likewise 64 prisoners were in captivity merely because they have so far failed to pay fines imposed upon them by different Courts although they have already served out their substantive sentences of imprisonment. The report further showed that for keeping one prisoner in jail and average sum of Rs,15.51 is spent on his diet and more on his maintenance by the Government per day. 6. In support of these petitions it has passionately been argued by Mr.M.D. Tahir, Advocate that poverty of a citizen is not per se an offence and if a convict has been punished, alongwith a sentence of imprisonment, to pay a sum of money to the victim or his heirs then, after serving out his entire substantive sentence of imprisonment, he cannot be detained in jail for an indefinite period or for the rest of his life if he is incapable of paying the requisite amount of money. He has maintained that a convict's poverty is a circumstance beyond his personal control and in such a situation the State, through the Zakat Fund or Bait-ul-Mal, should pay such an amount on behalf of the convict. According to him such an approach shall not only satisfy the victim's or his heirs' claim in that regard but shall also bring about peace and harmony in the society achievement of which is a basic duty of the State. 7. Kh. Saeed-uz-Zafar, the learned Deputy Attorney-General, has maintained that Diyat, Arsh and Daman are more of compensation than punishment and the provisions of sections 331, 337-X and 337-Y, P.P.C. Are to be read in conjunction with those of section 544-A of the Code of Criminal Procedure, 1898 (hereinafter referred to as Cr.P.C.) which deals with an identical situation, i,e, payment of compensation to the victim or his heirs. According to him the word "may" mentioned in sections 331(2), 337-X(2) and 337-Y(2), P.P.C. And the words "unless for reasons to be recorded in writing it otherwise directs" appearing in section 544-A(1), Cr.P.C. And "may further order" figuring in section 544-A(2), Cr.P.C. Unmistakably reflect the intention of the Legislature that incarceration of a convict upon his failure or inability to pay such compensation to the victim or his heirs is not mandatory. He has categorically maintained that, while "reading down" the provisions of sections 331, 337-X and 337-Y, P.P.C. So as to harmonize them with the provisions of section 544-A, Cr.P.C., it should be understood and interpreted that failure or inability of a convict to pay the requisite compensation does not have to necessarily entail his incarceration till he pays up the said amount and in an appropriate case a Court, after holding an inquiry in that regard, may refuse to pass an order regarding detention of such a convict in jail till recovery of such amount from him and, in such a situation, the Court may order that such an amount would be recoverable from the convict as arrears of land revenue. The learned Deputy Attorney-General has gone on to maintain that detention of a citizen in jail for an indefinite period only because of paucity of funds available with him to pay up a financial liability is indeed debasing of human dignity and it militates against the provisions of Article 14 of the Constitution. According to him even under the civil law a person incurring a financial liability is to be detained for the purposes of recovery only where he is capable of meeting that liability and not otherwise. He has lastly maintained that, as is evident from the report submitted by the Inspector-General of Prisons, Punjab, the State is already spending a lot of money on boarding and lodging of the prisoners and there may be cases where the State may ultimately end up spending more on keeping in prisoner in jail than paying up such prisoner's liability towards the victim or his heirs. The learned Deputy Attorney-General has referred to the
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case of Abdul Rahim and 2 others v. Messrs United Bank Limited (PLD 1997 Karachi 62) to highlight that while interpreting a law a Court is to avoid a result which is oppressive. A reference has also been made by him to the provisions of sections 51 and 57 of the Code of Civil Procedure, 1908 (hereinafter referred to as C.P.C.) and to the case of Syed Shaffai Hussain v. Kamran Khokhar (2000 MLD 801) to point out that in civil cases detention of a defaulter is to be ordered only where certain conditions are met and where he has the means to pay up his liability. The case of Mst. Shirin Masood v. Malik Nasim Hassan, Judge Family Court and others (1985 CLC 2758) and Major Feroze Din Khan and others v. Sh. Muhammad Amin (PLD 1967 Lah. 966) have also been referred to by him in this context. He has also brought it to the notice of the Court that in the case of Muhammad Afzal alias Seema v. The State (1999 SCMR 2652) the Hon'ble Supreme Court of Pakistan has already held that before passing an order against a minor convict regarding payment of Diyat the trial Court has to hold an inquiry regarding his capability or financial capacity to pay Diyat. He has also informed the Court that the order passed by this Court on 25-5-2001 in Criminal Miscellaneous No,96-M of 2001 in Criminal Appeal No,737 of 1996 has already opened a door for payment of Diyat from the Bait-ul-Mal for the benefit of a convict who is destitute and incapable of meeting his liability in that regard on his own. A reference has also been made by him to the case of Gulab v. The State (1997 PCr.LJ 193) wherein such a convict had been admitted to bail so as to facilitate him to arrange for funds to pay Diyat. The learned Deputy Attorney-General has lastly referred to the case of Muhammad Kamal v. The State (1998 PCr.LJ 1781) to point out that a recommendation has already been made by the Hon'ble Peshawar High Court to the Federal Ministry of Law to remove the anomalies and confusion in all these regards. 8. Mr. Ishfaq Ahmad Chaudhry, Advocate, the learned Law Officer appearing on behalf of the learned Advocate-General, Punjab, has by and large taken the same stand as taken by the learned Deputy Attorney-General. He has, however, maintained that Diyat, Arsh or Daman are not debts but are punishments and the provisions of section 544-A, Cr.P.C. Appear to be more humane and appropriate for exaction of such a punishment than the provisions of sections 331, 337-X and 337-Y, P.P.C. He has also drawn this Court's attention to the cases of Muhammad Zafar v. The State (2001 YLR 533) and Allah Ditta v. The State (PLD 2002 Lahore 406) wherein a direction had been issued by this Court that the relevant compensation to the victims or their heirs should be paid from the Bait-ul-Mal for the benefit of the destitute convicts in those cases and also to the case of Fazal Hussain v. The State (2002 PCr.LJ 1256) wherein on the basis of a compromise between the convict and the major heirs of the victim the share of Diyat payable by the convict to the minor heirs of the victim had been waived by this Court. Mr. Ishfaq Ahmad Chaudhry has, however, maintained with respect that the orders passed in those cases had not, been proceeded by any meaningful discussion about legal permissibility or otherwise of adoption of such a course by the Court. 9. Syed Shabbar Raza Rizvi, Advocate appearing as amicus curiae, has addressed elaborated arguments from diverse angles including legal, Islamic and Constitutional. On the legal plane he has maintained that Diyat, Arsh or Daman are not just compensation to the victim or his heirs but are substitute punishment for Qisas as is manifest from the provisions of section 308, P.P.C. According to him the provisions of sections 331 and 337-X, P.P.C. Contemplate a grace period of three years to be allowed to a convict to pay up his liability in that regard failing which he is either to be kept in jail or he is to be admitted to bail till he pays up or dies in which case the requisite amount is to be recovered from his estate. He has, with reference to the provisions of section 338-F, P.P.C., pointed out that this matter is to be applied and interpreted by this Court while being guided by the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah. 10. While dilating upon the Injunctions of Islam in this regard Mr. Rizvi has extensively referred to various sources of Islamic law, including the Holy Qur'an, the Sunnah of the Holy Prophet (p.b.u.h.)
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and writings of various scholars to maintain as follows:- . (a) The object of Qisas and Diyat laws is to satisfy the victim or his heirs so as to bring about peace in the society by quenching their thirst of vengeance and, in the absence of Qisas, the victim or his heirs are to be compensated in financial terms through payment of Diyat. (b) If the convict is sourceless and his relatives also have no means to pay the liability on his behalf then Diyat can be exacted from the Aqila (the convict's clan or tribe) so that the blood of the victim does not go waste and vengeance of the heirs of the victim is satisfied through financial compensation. With the growing irrelevance of clans and tribes the State is the modern manifestation of Aqila. While making these submissions the learned amicus curiae has extensively quoted from the following books:- "Tefheem-ul-Ouran: Volume I, Surah Al-Baqara, Verse 177 by Maulana Abul A'la Maudoodi. Hadood, Oisas, Divat wa Tazeerat: Pages 43, 198, 373 and 400 by Dr. Tanzil-ur-Rehman, published by Qanuni Kutab Khana, Katcheri Road, Lahore. Islami Oawaneen-e-Oisas wa Diva: Pages 16, 87 and 125 by Min Masood Ahmad Bhutta, published in 1991 by Kashmir Law Times, Temple Road, Lahore. Islam Ka Fauidari Oanoon: Volume I, pages 157, 162 and 257 by Abdul Qadir Auda Shaheed, published in 1979 and 2000 by the Islamic Publications Limited, Shah Alam Market, Lahore. Tadabar-i-Duran: Volume 1, page 431 by Amin Ahsan Islahi, published by Faran Foundation, Lahore. Mishkat-ul-Masahib: Volume II, page 1163 English translation by Alhaj Maulana Fazal-ul-Quran, published by the Law Publishing Company, Katcheri Road, Lahore. Oisas our Diva: pages 155, 156, 157 and 248 by Ch. Altaf Hussian, published in 1981 by Sang-e-Meel Publications, Lahore. Bada-i-al-Sana: Volume VII, pages 561, 563 and 564, translated by Prof. Khan Muhammad Chawla, published by Markaz-e-Tehqeeq, Research Cell, Diyal Singh Trust Library, Nisbat Road, Lahore. 11. For his argument based upon the Constitution Mr. Rizvi has referred to the provisions of Articles 3, 37, 38 and 156 of the Constitution of the Islamic Republic of Pakistan, 1973 as well as to the speech delivered by then Law Minister Mr. Abdul Hafeez Prizada which presenting the Draft Constitution before the National Assembly. Mr. Rizvi has maintained that the Constitution envisages a Welfare State; Article 3 visualizes elimination of all forms of exploitation; Article 37(a) provides that the State shall promote the economic interests of the backward classes; Article 37(d) requires the State to ensure inexpensive and expeditious justice; Article 38(a) mandates that the State shall secure the well-being of the people; and Article 38(d) contemplates that the State shall provide basic necessities of life, such as food, clothing, housing, education and medical relief for all such citizens as are permanently or temporarily unable to earn their livelihood on account of infirmity, sickness or unemployment. Keeping in view these Constitutional requirements, according to Mr. Rizvi, the convicts of the type under discussion in the present petitions do qualify for financial assistance by the State which is under a Constitutional obligation to reach out to such citizens for amelioration of their financial handicap which is not of their own making. 12. Mr. Rizvi has further argued that some Constitutional and Fundamental Rights of the prisoners under discussion can also be pressed into service by this Court and appropriate directions can be issued by the Court to the relevant functionaries of the State for enforcement of such rights so as to provide the necessary relief to such prisoner. In this context he has referred to Articles 4, 9, 14 and 25 of the Constitution. Article 4 deals with an inalienable right to liberty in accordance with the law, Article 9 provides protection against unlawful deprivation of life or liberty, Article 14 pertains to inviolability of dignity of man and Article 25 ensures equality before law and equal protection of law. The learned counsel has, in this regard, referred to page 812 of the book titled Constitutional Foundations of Pakistan authored by Dr. Safdar Mahmood, published by the Jang Publishers,
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Lahore in December, 1989 and to the cases of Miss Benazir Bhutto v. Federation of Pakistan and another (PLD 1988 SC 416 at page 490), Haji Nizam Khan v. Additional District Judge, Lyallpur and others (PLD 1976 Lahore 930 at page 979), Mst. Fazal Jan v. Roshan Din and 2 others (PLD 1990 SC 661), Mian Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993 SC 473 at page 557), Zohra and 5 others v. The Government of Sindh, Health Department through its Secretary, Sindh Secretariat, Karachi and another (PLD 1996 Karachi 1), The Employees of the Pakistan Law Commission, Islamabad v. Ministry of Works and 2 others (1994 SCMR 1548), Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another (PLD 1989 Karathi 404 at page 442), Mumtaz Ali Bhutto and another v. The Deputy Martial Law Administrator, Sector 1, Karachi and 2 others (PLD 1979 Karachi 307 at page 357), Federation of Pakistan and another v. Malik Ghulam Mustafa Khar (PLD 1989 SC 26 at page 53), In re: Juvenile Jail, Landhi, Karachi (Suo motu notice) (1990 PCr.LJ 1231) and Sh. Liaquat Hussain and others v. Federation of Pakistan through Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others (PLD 1999 SC 504). 13. Mr. Umar Ata Bandial, Advocate, also appearing as amicus curiae, has maintained that Diyat, Arsh or Daman, in addition to the sentence passed against a culprit for the offence committed by him, are basically different forms of compensation to the victim or his heirs which, in terms of the provisions of sections 331, 337-X and 337-Y, P.P.C., is recoverable from the convict or from his estate in case he dies before paying the same. Such compensation, according to him, is meant primarily for making up for a loss caused by the convict and, therefore, it can also be termed as a 'debt' for the recovery of which the provisions of the civil law can be usefully pressed into service. He has maintained that in the civil law a loss is to be compensated for by the wrongdoer either in contractual matters or in respect of torts and in both of these spheres such compensation is awarded in the shape of damages which, if not recovered, assume the status of a debt. He has further maintained that a debt is either owed to a private creditor or to the State and on the civil side the law is fairly developed as to how such a debt is to be recovered through execution of a decree. While advancing this submission Mr. Bandial has categorically maintained that before detaining a person in execution of a decree for recovery of a debt an inquiry has to be conducted regarding his capacity to pay back such debt and in any case his detention for the purposes of recovery of such debt cannot be for an indefinite period and certainly not for the rest of his life. In this regard he has referred to the following legislative enactments and provisions:-- (i) Sections 36 to 74, C.P.C. And particularly section 55 thereof dealing with arrest and detention of the judgment-debtor according to which a judgment-debtor may be detained in prison for a maximum period of one year whereafter he cannot be detained any further but his liability to pay back the debt remains intact; (ii) Order XXI, rules 37 to 41, C:P.C. Requiring holding of an inquiry into the judgment-debtor's capacity to pay back the debt and providing the judgment-debtor an opportunity to satisfy the Court that he cannot pay back the debt and, therefore, he may not be detained; (iii) Section 48 in Chapter IX of the Sales Tax Act, 1990; (iv) Section 202 of the Customs Act, 1969; (v) Sections 80 and 82 in Chapter VIII of the Land Revenue Act, 1967; and (vi) The Provincial Insolvency Act, 1920. ' With reference to the provisions of section 82 of the Land Revenue Act, 1967 Mr. Bandial has maintained that after exhaustion of the period of imprisonment provided in the relevant provisions of the said Act there is no provision for the defaulter's re-arrest for an indefinite period till he pays up his liability. In this context he has referred to the case of Muhammad Riaz v. District Collector, Okara (PLD 1997 Lahore 680) wherein it has been held by this Court that the provisions of the Land Revenue Act, 1967 are to be strictly construed in this regard. He has also extensively referred to the
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provisions of sections 6, 7, 27, 28, 31, 41 and 44 of the Provincial Insolvency Act, 1920 to point out that imprisonment of a person in execution of a decree of any Court for payment of money is by itself an act of insolvency, upon such person's petition for adjudication of his insolvency a Court can pass an order of adjudication whereafter the whole property of such person may vest in the Court, consequent upon an order of adjudication of insolvency the Court, after declaring such person an undischarged insolvent, may grant such person protection against arrest or detention subject to imposition of certain conditions and upon an application for discharge submitted by him the Court may discharge him upon condition qua his future earnings. According to the learned amicus curiae such person cannot be discharged as far as debts owned to the Government are concerned but as regards all other debts he can be released from all of them by the Court. Drawing an analogy from the provisions of the Provincial Insolvency Act, 1920 Mr. Bandial has argued that an imprisoned convict incapable of discharging his financial liability towards his victim or his heirs may…
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