2020 P Cr. L J 1562
[Balochistan]
Before Muhammad Kamran Khan Mulakhail, J
Bibi ZARGHOONA and another ---Petitioners
Versus
The STATE ---Respondent
Criminal Revision No. 76 of 2019, decided on 31st December, 2019.
Penal Code (XLV of 1860) ---
----Ss. 302 & 34---Criminal Procedure Code (V of 1898), S. 345 ---Qatl-i-amd, common
intention ---Compromise ---Payment of Diyat amount by State ---Scope ---Accused were
charged for committing murder of their father ---During the proceeding of the case,
petitioners entered in to compromise with the legal heirs of the deceased ---Compromise was
accepted and petitioners were directed to deposit the share of Diyat amount of the minor
legal heirs ---Petitioners moved an application before the trial court for issuing direction to
the State to pay the Diyat amount on their behalf, which was dismissed ---Validity ---
Petitioners had not challenged the payment of Diyat amount but had only prayed that since
they could not pay the Diyat amount for lack of reasonable resources, the State be dir ected to
pay the said amount ---Scope ---Diyat, Arsh and Daman Fund Rules, 2007 (Rules 2007),
issued vide S.R.O. No.1110(I)/2007, dated 13th November, 2007, described that only
vulnerable prisoners could be compensated, if they were languished in jail only f or payment
of Diyat amount ---Said concession was earlier only available to the prisoners of 60 years of
age, but subsequently Rules were amended and the minimum age limit was fixed at 40 years -
--Petitioners could not be compensated under the said rules as they were neither behind the
bars or languished in jail nor they meet the criteria of minimum age limit of 40 years ---In the
present case, in the list of legal heirs some were of minor age, being below the age of 18
years, therefore, the right of Diyat cou ld not be pardoned or waived of by their respective
wali under the injunctions of Islam, however, the Trial Court could grant the permission for
payment of Diyat amount in lieu of shares of minor legal heirs of the deceased in sixty
instalments and further the petitioners were also admitted to bail subject to furnishing surety
equivalent to the Diyat amount ---High Court observed that petitioners' case though did not
fall within the purview of Rules 2007, but it was admitted feature of the case that the
Gove rnment was wali for the deceased on behalf of his/her legal heirs, without imposing any
embargo of upper or lower age limit ---Impediment of payment of Diyat on behalf of
offenders to the legal heirs of the deceased subject to minimum age limit of 40 years, did not
stand of any explicit reason, rather it seemed discriminative to the petitioners on the basis of
their age as well as for the reason that they were not languishing in jail merely for payment
of Diyat amount ---Petitioner's case was distinguishable one, since they had been admitted to
bail by the trial court by invoking provisions of S. 331 of P.P.C. and the reference to Rules
2007 could not be considered as sacrosanct piece of legislation ---In view of equality of
citizens guaranteed under Art. 25 of the Constitution, rather the Rules 2007 were an attempt
to create a special class, and said class or category of the prisoners would only be entitled to
get benefit of payment of Diyat after attaining the age of 40 years ---In the present case both
the pet itioners were below the age of 40 years and in case of non -payment of Diyat amount
through instalments, they would ultimately be incarcerated due to default in payment of
Diyat amount, in that case both of them would be kept in jail till attaining the age of 40 years
and then they would be entitled for the payment of Diyat through Bait -ul-Mal or any other
medium allocated by the concerned government in that behalf ---If the stated situation was
accepted, then the petitioners would not be in position to get b enefit of funds allocated by the
Government for payment of Diyat, therefore, present case was a fit case to be referred to the
Secretary, Home and Tribal Affairs, who shall further proceed and place the case before the
appropriate committee of the Ministry of Human Rights for considering the case on
sympathetic basis in view of observations by the High Court ---High Court further observed
that no inquiry had so far been conducted to ascertain that whether the petitioners had any
other means in shape of movea ble or immovable property to make the payment good, or
otherwise ---High Court remanded the case to the Trial Court to conduct inquiry with regard
to financial situation of the petitioners through concerned Tehsildar ---If the report suggested
and finally co ncluded that the petitioners did not have enough means to make payment of
Diyat good, the trial court shall forward the case to the Secretary Home and Tribal Affairs
along with copy of the judgment with the direction for compliance ---Home Secretary shall
ensure that amount of Diyat in the present case was deposited in the Trial Court by the State
for payment to the legal heirs, either from the 'Bait -ul-Maal' or from the fund allocated by the
Federation to the Ministry of Human Rights, within three months of the receipt of that order,
failing which the Trial Court shall take necessary steps for the recovery of the amount of
Diyat by attachment/sale of movable or immovable property of the State in accordance with
law---Revision petition was accepted accordingl y.
Muhammad Asif Khilji for Petitioners.
Muhammad Yunus Mengal, APG, Tahir Iqbal Khattak, Assistant Attorney General,
Muhammad Salam Jamali, A.A.G., Syed Haroon, Shah, Director, Pakistan Bait -ul-Mal
Balochistan and Ms. Jehan Ara Tabasum, Deputy Director , Regional Office Quetta, Ministry
of Human Rights for the State.
Date of hearing: 20th December, 2019.
JUDGMENT
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. ---This criminal revision
petition is directed against the order dated 25.05.2019 (the "impugned order") pa ssed by the
Additional Sessions Judge -II, Quetta (the "trial Court"), whereby the application filed by the
petitioners "for directing the State to pay Diyat amount on behalf of the petitioners" was
rejected.
2. The brief facts as narrated in the FIR are t hat on a report submitted by complainant
Amir Muhammad, an FIR bearing No.07 of 2018 was lodged under sections 302 and 34,
P.P.C. alleging therein that on 28th/29th April, 2018 at about 12:20 a.m., he was informed
that his stepbrother viz Wali Muhammad has been murdered by unknown accused persons by
means of firing. Consequently, the instant FIR was lodged; that after registration of FIR,
challan was submitted before the trial court, meanwhile, the petitioners entered into
compromise with the legal heirs of the deceased, but after acceptance of compromise, the
learned trial court directed them to deposit the share of Diyat amount of the minor legal heir,
which was calculated to the tune of Rs.11,29,090/ -; that the petitioners have been released on
bail and w ere directed to pay the Diyat amount in sixty installments, but they being
womenfolk are neither having any employment nor any source of income, thus unable to pay
the amount of diyat.
3. The petitioners moved an application before the trial court for iss uing direction to the
State to pay the Diyat amount on their behalf, which was dismissed by the trial court vide
order dated 25th May 2019. Hence the instant revision petition is preferred.
4. Heard, record perused.
Learned counsel for the petitioners c ontended that the petitioners have entered into
compromise with the legal heirs of deceased, while they being daughters of the deceased, are
unable to pay the amount of Diyat, as they have no independent source income being
womenfolk, thus, the State be di rected to pay the Diyat amount from the 'Bait -ul-Maal' fund
or any other fund.
Learned APG did no contest the financial status of the petitioners, and also did not
seriously oppose the request of the petitioners.
7. The petitioners have not challenged t he payment of Diyat amount but have only
prayed that since they cannot pay the Diyat amount for lack of reasonable resources, the
State be directed to pay the said amount. For the better appreciation of the issue raised, it is
relevant to refer section 331 , P.P.C., which reads as under: -
"331. Payment of Diyat. ---(1) The diyat may be made payable in lump sum or in
installments spread over a period of five years from the date of the final judgment.
(2) Where a convict fails to pay Diyat or any part thereof within the period specified
in subsection (1), the convict may be kept in jail and dealt with in the same manner as
if sentenced to simple imprisonment until the diyat is paid full or may be released on
bail if he furnishes security [o r surety] equivalent to the amount of Diyat to the
satisfaction of the Court [or may be released on parole as may be prescribed in the
rules]."
(3) ..............
8. Can womenfolk, who have entered into compromise with the legal heirs of the
deceased, b ut held liable to pay the diyat amount to the minor legal heirs of the deceased, but
cannot pay the Diyat amount, be detained indefinitely? This question was considered by his
lordship Mr. Justice Bashir A. Mujahid, while speaking for the Lahore High Court , in the
case 'Zafar v. The State' (2001 YLR 533) and while disposing of the appeal in the said case,
the trial Court was directed to hold an enquiry as to whether the appellant owned some
property or his ' Wali' were in a position to pay the Diyat amount, and if they were not in a
position to pay the said amount, the State was directed to make the payment. After receipt of
the inquiry, it was held: -
"As per inquiry conducted by the trial Court, Zafar petitioner/appellant or his Wali
has no property and in tention of law as noted above is clear that an absence of any
other source for payment, the Government is Wali for the minor offender and on also
behalf of the legal heirs of the deceased, therefore, the direction already issued to the
State vide judgment dated 22 -7-1999 in Criminal Appeal No.737 of 1996 still holds
the field and has attained the finality. Resultantly, the objection raised by the learned
A.A. -G. is repelled. The Home Secretary, Government of Punjab is directed to ensure
the compliance of th e direction issued by this Court for deposit of Diyat amount in the
trial Court after taking up the matter with the concerned quarter also with the
Authorities controlling ' Baitul Maal' within a period of 2 months after receipt of this
order, failing whic h the trial Court shall take necessary steps for the recovery and
payment of Diyat by attachment/ sale of State's movable or immovable property in
accordance with law.
The afore -referred judgment was not challenged by the State. The petitioners, in the
instant case, admittedly are womenfolk and daughters of the deceased, who was a poor man,
while their family is also facing financial constraints. Under the current state of
unemployment and being womenfolk, the petitioners would not be able to pay the diya t
amount Rs. 11,29,090/ - for the years to come. The provision for payment of diyat in such
circumstances entails uncertainty both for the intended beneficiary and for the convicts
particularly when they are also womenfolk.
9. During pendency of this petit ion, in response to this court's order dated 07th August
2019, on 25th September 2019, Syed Haroon Shah, the Director, Pakistan Bait -ul-Mal,
Balochistan, appeared, when the following order was passed: -
"Learned DAG along with Director Pakistan Bait -ul-Mal, Balochistan submitted a
report on behalf of the Pakistan Bait -ul-Mal along with copy of minutes of the 64th
meeting of Bait -ul-Mal Board held on 13th March, 2019, and states that according to
newly formulated policy, certain conditions have been stipulat ed for compensation of
condemned prisoners in view of payment of Arsh, Daman and Diyat which states as
follows:
i. No cases of Capital punishment to be considered;
ii. Prisoner of heinous crime shall not be given financial relief in any case,
iii. Recomm endations of concerned Provincial Secretary (Home) will be an essential
requirement;
iv. Imposed fine should not exceed to PKR 50,000/ -;
v. Only first time convicted male, female and juvenile prisoners shall be preferred;
vi. Condemned prisoners must ha ve completed substantial punishment and are behind the
bars only for non -payment of fine".
While, responding the query posed by the court, the learned DAG states that due to
limited sources of Pakistan Bait -ul-Mal, it would not be possible to compensate the
petitioners for payment of Diyat amount to the tune of Rs.11,29,090/ -.
Be that as it may, but it cannot be ascertained that whether the said policy has any
statutory backing or otherwise, therefore, learned DAG is directed to assist the court
as to w hether or not the relevant law empowered the board to lay down a policy and
to impose a condition for compensation of vulnerable prisoner/citizen.
Learned counsel for the petitioners is directed to provide a copy of the petition along
with annexures to th e learned DAG.
Office to transmit copy of this order to the learned DAG and the learned counsel for
the petitioners."
On 28th October 2019 once again Mr. Sanaullah, Assistant Director, Pakistan Bait -ul-
Mal, Balochistan appeared, when the following order was passed: -
"Learned DAG along with Assistant Director, Pakistan Bait -ul-Mal, Balochistan at
the very outset placed on record a copy of communique dated 19.03.2019, issued by
the Deputy Director, Ministry of Human Rights, Government of Pakistan add ressed to
the Secretary, Home Departments of the respective provinces, and states that the issue
involved in this case with regard to payment of Diyat amount on behalf of the
petitioner can be resolved, if the Provincial Director, Ministry of Human Rights at
Quetta be summoned along with Secretary Home Department, Government of
Balochistan.
After perusal of aforesaid letter, the suggestion rendered by learned DPG seems
reasonable, therefore, office to issue notice to the Provincial Director, Ministry of
Human Rights, through office of the DAG, while the Secretary Home Department,
Government of Balochistan be summoned through office of the Advocate General.
Both the learned Law Officers of the Province and Federation are expected to apprise
the concerned of ficials about issue involved in this case.
Mr. Sanaulla, Assistant Director, Bait -ul-Mal need not to appear unless otherwise
directed.
Office to issue notices to the above said officials, which shall accompany the copy of
this order."
In pursuance of aforesaid orders on 20th December 2018, Ms. Jehan Ara Tabasum,
Deputy Director, Regional Office Quetta, Ministry of Human Rights appeared and submitted
a comprehensive reply for assistance of the court. She also placed on record the copy of
Diyat, Arsh and Daman Fund Rules, 2007 (Rules 2007), issued vide S.R.O. 1110(I)/2007,
dated 13th November 2007 and inter alia contended that according to the policy, only
vulnerable prisoners can be compensated, if they are languished in jail only for pay ment of
diyat amount; that said concession was earlier only available to the prisoners of 60 years of
age, but subsequently Rules were amended and the minimum age limit was fixed at 40 years.
She stated that she is unable to comprehend that how in the inst ant case the petitioners can be
compensated, when they are neither behind the bars or languished in jail only for payment of
diyat, nor they meet the criteria of minimum age limit of 40 years. However, she suggested
that it would be appropriate if this cas e be referred to the Secretary, Home and Tribal Affairs,
Government of Balochistan, for its onwards transmission to the concerned committee of
Ministry of Human Rights for considering the same as a special case.
Be that as it may, but it may not be out o f place to mention here that the Hon'ble apex
Court while deciding some identical cases vide order dated 14th December 2006, whereby it
was observed that the convicts who have to pay Diyat, Arsh and Daman are languishing in
jails on account of non -payment of the same due to poverty and weak financial position. In
this backdrop the Hon'ble Supreme Court directed that the Federal Government may create a
fund and evolve a mechanism for the payment of Diyat, Arsh and Daman. In order to
implement the decision of the Supreme Court, section 338 -G has been amended through the
Pakistan Penal Code (Amendment) Ordinance, 2007 (VI of 2007), empowering the Federal
Government to create fund by making rules. The Ordinance has been re -promulgated time
and again. The last Or dinance in this regard was promulgated on 20th April, 2010; Ordinance
No.VII of 2010. The Federal Government established Diyat, Arsh and Daman Fund and
framed its rules by invoking section 338G, P.P.C. to provide financial assistance to the
convicts who ar e confined in jails on account of non -payment of Diyat, Arsh and Daman
amount. The preliminary purpose of this fund is to provide financial assistance to the
prisoners who are languishing in jails on account of nonpayment of Diyat, Arsh and Daman
amount to the legal heirs of victim due to poverty and weak financial position. Soft loans or
financial grants out of fund are being provided to the convict prisoners who fulfil the
prescribed criteria. The Federal Government placed this fund under the administrati ve
control of Ministry of Law, Justice and Human Rights. As provided in rule 5 of Diyat, Arsh
and Daman Fund Rules, 2007, the Administrative Committee delegated all powers to
Provincial Sub -Committees, to be chaired by Home Secretaries and having a member of the
Federal Government for the disposal of business. The Provincial Sub -Committee scrutinizes,
process and recommends the eligible cases to the Administrative Committee of Diyat, Arsh,
and Daman approves the cases recommended by the Provincial Sub -Commi ttees. The
Administrative Committee consists of followings is responsible for management, control and
disbursement of fund:
a) Minister for Human Rights Chairman
b) Secretary, Ministry for Human Rights Member
c) Secretary, Ministry of Interior Member
d) Provincial Home Secretaries Member
e) Director General Human Rights Member
11. In the instant case the petitioners were charged for committing murder of their father
and both of them are real sisters. It appears that after submission of challan, all the legal heirs
of the deceased have entered into compromise with them and they were pardoned in the name
of Allah Almighty, however, in the list of legal heirs some were of minor age, being below
the age of 18 years, therefore, the right of diyat could not b e pardoned or waived of by their
respective wali under the injunctions of Islam. However, the trial court was pleased to grant
the permission for payment of diyat amount in lieu of shares of minor legal heirs of the
deceased in sixty installments and furth er the petitioners were also admitted to bail subject to
furnishing surety equivalent to the diyat amount of Rs. 11,29,090/ -.
12. In view of above discussion, though the petitioners case does not fall within the
purview of Rules 2007, but it is admitted f eature of the case in hand that the government is
wali for the deceased on behalf of his/her legal heirs, without imposing any embargo of
upper or lower age limit, therefore, the impediment of payment of diyat on behalf of
offenders to the legal heirs of t he deceased subject to minimum age limit of 40 years, does
not stand of any explicit reason, rather it seems discriminative to the petitioners on the basis
of their age as well as for the reason that they are not languishing in jail merely for payment
of diyat amount. The petitioners' case is distinguished one, since they have been admitted to
bail by the trial court by invoking provisions of section 331 of P.P.C. and the referred to
Rules 2007 cannot be considered as sacrosanct piece of legislation, in vie w of equality of
citizens guaranteed under Article 25 of the Constitution, rather the rules 2007 is an attempt to
create a special class, and said class or category of the prisoners would only be entitled to get
benefit of payment of diyat, only after atta ining the age of 40 years.
In this case both the petitioners are below the age of 40 years and in case of non -
payment of diyat amount through instalments, they would ultimately be incarcerated due to
default in payment of diyat amount. In that case both of them will be kept in jail till attaining
the age of 40 years, and then they would be entitled for the payment of diyat though Bait -ul-
Mal or any other medium allocated by the concerned government in this behalf. If the
aforesaid situation is accepted, t hen the petitioners would not be in position to get benefit of
funds allocated by the Federation for payment of diyat, therefore, I am of the considered
view that this case is a fit case to be referred to the Secretary, Home and Tribal Affairs,
Government of Balochistan, who shall further proceed and place this case before the
appropriate committee of Ministry of Human Rights. It is expected that the worthy members
of the Committee shall consider the case on sympathetic basis in view of observations
rendere d herein above.
13. At this juncture it is also worthwhile to observe here that, no inquiry has so far being
conducted to ascertain that whether the petitioners have any other means in shape of
moveable or immovable property to make the payment good, or o therwise? Therefore, in the
first instance, the case is remanded to the trial court to conduct inquiry with regard to
financial situation of the petitioners through concerned Tehsildar, and, in case if the report
suggests and finally concludes that the pet itioners did not have enough means to make
payment of diyat good, the trial court shall forward the case to the Secretary, Home and
Tribal Affairs, Government of Balochistan along with copy of this judgment with the
direction for compliance. The Home Secre tary, Government of Balochistan, shall ensure that
amount of Diyat in the instant case is deposited in the trial Court by the State (for payment to
the legal heirs) either from the 'Bait -ul-Maal' or from the fund allocated by the Federation to
the Ministry of Human Rights, within three months of the receipt of this order, failing which
the learned trial Court shall take necessary steps for the recovery of the amount of Diyat by
attachment/sale of movable or immovable property of the State in accordance with law.
The petition stands accepted in the above terms.
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