2012 P Cr. L J 1053
[Balochistan]
Before Jamal Khan Mandokhail, J
KALA KHAN ---Petitioner
Versus
THE STATE ---Respondent
Criminal Miscellaneous Quashment No.97 of 2011, decided on 26th December, 2011.
Criminal Procedure Code (V of 1898) ---
----S. 386 ---Penal Code (XLV of 1860) , S. 409 ---Prevention of Corruption Act (II of 1947),
S. 5(2) ---Criminal breach of trust by public servant, criminal misconduct --- Warrant for
levy of fine ---Scope ---Clarification of judgment ---High Court while hearing appeal of
accused maintained h is conviction and reduced his sentence to that already undergone by him
with the order that the amount of fine shall be recovered from the accused from his property --
-Accused requested clarification of such order with the contention that although accused w as
ordered to pay fine, but in default of payment of the fine, the order was silent, and that it was
ordered that amount of fine shall be recovered from the properties of the accused, but accused
did not have any property ---Validity ---High Court had given no direction for detention of the
accused in default of payment of fine and it had been specifically mentioned that the amount
of fine shall be recoverable from the movable or immovable properties, or both, of the
accused ---Section 386, Cr.P.C. suggested t hat in case of default in the payment of fine, the
amount could be recovered either by the attachment and sale of any property of the convict or
the amount could be realized by the execution in accordance with the provisions of the Civil
Procedure Code, 19 08, and executing Court could issue warrants to the District Officer
(Revenue), authorizing him to realize the amount by the execution according to the civil
process against the movable or immovable properties, or both, of the offender ---Proviso to
S.386, Cr.P.C. clearly stated that in case, offender had undergone the whole of the sentence
or there was no order for imprisonment in default of payment of fine, no court shall issue
warrant of arrest of offender ---High Court had reduced the sentence awarded to the accused
by the Trial Court to that already undergone by him, however the amount of fine was ordered
to be recovered from the movable or immovable properties of the accused and there was no
order for imprisonment in default of payment of the fine, which meant that the fine was still
recoverable, but without the detention of the accused in prison ---If the accused did not own
any property, the amount of fine would remain due against him, which could be recovered
whenever he acquired a property in the futur e---Appeal of accused was dismissed, with such
clarification.
Tahir Ali Baloch for Petitioner.
Haji Liaquat Ali for the State.
Date of hearing: 19th December, 2011.
ORDER
JAMAL KHAN MANDOKHAIL, J. ---This petition has been filed for the correctio n of the
judgment dated 3rd November 2011, passed by this Court in Criminal Appeal No.288 of
2004, whereby the conviction awarded to the petitioner has been maintained by reducing the
sentence in the following terms: --
"The conviction awarded to the appe llant is maintained. However, the sentences awarded to
the appellant in both the sections are reduced to that already undergone. The amount of fine
under section 409, P.P.C. is reduced to 50,00,00 (Rupees Five Lac) and the amount of fine of
Rs.20,00,000 (R upees Twenty Lac) awarded to the appellant under section 5(2) of the Act(ii)
1947, is also reduced to that of Rs.50,00,00 (Rupees Five Lac). The amount of fine on both
counts shall be recovered from the appellant from his property.."
2. The learned couns el for the petitioner pointed out that though the petitioner/appellant was
ordered to pay fine, but in default of payment of the fine, the order is silent. He stated that in
the judgment, it is ordered that the amount of fine shall be recovered from the pr operties of
the petition, but he does not have any property, therefore, he requested for the clarification of
the judgment.
3. The learned State's counsel opposed the contention of the learned counsel for the petitioner
and stated that the amount of fine is recoverable from the properties of the petitioner,
therefore, the judgment impugned is clear and needs no clarification or correction.
4. I have heard the learned counsel for the parties and have perused the record of the case.
The subject of levy of fine is governed by section 386, Cr.P.C. which is reproduced
hereinbelow: --
"Warrant for levy of fine. ---(1) Wherever 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 [District Officer (Revenue)] authorizi ng him to realize 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 default,
no Court shall issue such warrant."
5. Considering the judgment dated 3rd November, 2011, passed by this Court, it is clear that
no direction for detention of the petitioner/appellan t in default of payment of fine has been
given. It has specifically been mentioned that the amount of fine shall be recoverable from
the movable or immovable properties, or both of the defaulter. The above provision of law
suggests that in case of default in the payment of the fine, the amount can be recovered either
by the attachment and sale of any property of the convict or the amount could be realized by
the execution in accordance with the provision of the Civil Procedure Code 1908, and the
nearest civ il Court can execute it. In such -like cases, the executing Court can issue warrant to
the District Officer (Revenue), authorizing him to realize the amount by the execution ling to
the civil process against the movable or immovable properties or both of th e offenders.
Proviso of the section 386, Cr.P.C. is manifestly clear that in case, the offender has
undergone the whole of the sentence or there is no order for imprisonment in default of the
fine, no Court shall issue warrant of the arrest. This Court, wh ile deciding the appeal, reduced
the sentence of the petitioner/appellant awarded to petitioner by the trial Court to that already
undergone, however, the amount of fine was ordered to be recovered from the movable or
immovable properties of the petitioner . There is no order of imprisonment in default of the
fine, which means that the fine is still recoverable, but without the detention of the petitioner
in the prison. If the petitioner does not own any property, the amount of the fine shall remain
due agai nst him, which could be recovered whenever he acquires the property in future.
In view of the above clarification, the petition is hereby dismissed.
M.W.A./20/Bal.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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