Kala Khan v. State,
Bench: Jamal Khan Mandokhail
📝 AI Summary — Plain-Language Overview
This case involved a man named Kala Khan who had earlier been convicted of criminal breach of trust by a public servant and criminal misconduct, offenses related to sections 409 of the Pakistan Penal Code and 5(2) of the Prevention of Corruption Act. In an earlier appeal, the Balochistan High Court had upheld his conviction but reduced his sentence to time already served, while ordering that fines totaling ten lac rupees be recovered from his property.
Kala Khan then asked the court to clarify that judgment. He argued that the order did not specify what should happen if he failed to pay the fine, and pointed out that he owned no property from which the fine could be recovered.
The High Court explained that under section 386 of the Criminal Procedure Code, a fine can be recovered either by seizing and selling the offender's property or through civil execution proceedings against his movable or immovable assets. Importantly, the law only allows arrest or imprisonment for non-payment if the original sentence specifically ordered imprisonment in default of payment. Since the court's earlier judgment contained no such order for imprisonment, Kala Khan could not be jailed for failing to pay the fine.
However, the court clarified that the fine obligation itself does not disappear. If he currently owns no property, the debt remains outstanding and can be recovered later if and when he acquires property in the future. With this clarification, the petition was dismissed.
یہ مقدمہ کالا خان نامی ایک شخص سے متعلق تھا جسے قبل ازیں سرکاری ملازم کی حیثیت سے مجرمانہ خیانت اور بدعنوانی کے جرائم میں سزا سنائی گئی تھی، جن کا تعلق پاکستان پینل کوڈ کی دفعہ 409 اور انسدادِ بدعنوانی ایکٹ کی دفعہ 5(2) سے تھا۔ ایک سابقہ اپیل میں بلوچستان ہائی کورٹ نے اس کی سزائے قید کو برقرار رکھتے ہوئے اسے کم کر کے اس مدت تک محدود کر دیا تھا جو وہ پہلے ہی کاٹ چکا تھا، جبکہ عدالت نے یہ حکم بھی دیا تھا کہ کل دس لاکھ روپے جرمانہ اس کی جائیداد سے وصول کیا جائے۔
اس کے بعد کالا خان نے عدالت سے درخواست کی کہ اس فیصلے کی وضاحت کی جائے۔ اس کا مؤقف تھا کہ فیصلے میں یہ واضح نہیں کیا گیا کہ اگر وہ جرمانہ ادا کرنے میں ناکام رہے تو کیا ہوگا، اور اس نے یہ بھی نشاندہی کی کہ اس کے پاس کوئی جائیداد موجود نہیں جس سے یہ جرمانہ وصول کیا جا سکے۔
ہائی کورٹ نے وضاحت کی ک
Generated from the full judgment text below — not a substitute for reading the actual opinion.
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.