Bhawal Khan v. the State,
Bench: Syeda Tahira Safdar
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This case involved a man named Bhawal Khan who had been convicted under Section 337-H(ii) of the Pakistan Penal Code (causing hurt through a rash or negligent act) and fined Rs. 5,000, with a default sentence of two months imprisonment if unpaid. He paid the fine through the jail superintendent while pursuing his appeals.
Later, the complainant and Khan reached a compromise, with the complainant forgiving him and giving up any claim to Arsh or Daman (forms of compensation under Islamic criminal law equivalents recognized in Pakistani law). The Balochistan High Court accepted this compromise, set aside the earlier convictions from the trial and appellate courts, and acquitted Khan of the charge.
Following his acquittal, Khan asked the court to return the Rs. 5,000 fine he had already paid, arguing that since the case was compromised and he was acquitted, the money should come back to him.
The High Court rejected this request. It clarified an important legal distinction: Arsh or Daman (compensation paid to a victim) can be returned if the victim waives their right to it as part of a compromise, since that money belongs to the victim. However, a fine is different because it is paid to the State, not to the victim. Even when a conviction is set aside due to compromise and acquittal, fines already deposited with the State cannot be refunded. The application was dismissed.
اس مقدمے کا تعلق بھاول خان نامی شخص سے ہے جسے پاکستان پینل کوڈ کی دفعہ 337-H(ii) کے تحت (غلط یا غفلت پر مبنی فعل کے ذریعے تکلیف پہنچانے کے جرم میں) مجرم قرار دیا گیا تھا اور اس پر پانچ ہزار روپے جرمانہ عائد کیا گیا تھا، جس کی عدم ادائیگی کی صورت میں دو ماہ قید کی متبادل سزا مقرر کی گئی تھی۔ اپیلوں کے زیرِ سماعت رہنے کے دوران اس نے یہ جرمانہ جیل سپرنٹنڈنٹ کے ذریعے ادا کر دیا۔
بعد ازاں شکایت کنندہ اور خان کے درمیان صلح ہو گئی، جس میں شکایت کنندہ نے اسے معاف کر دیا اور ارش یا دیت (اسلامی فوجداری قانون کے تحت معاوضے کی صورتیں جنہیں پاکستانی قانون میں بھی تسلیم کیا گیا ہے) کے اپنے دعوے سے دستبردار ہو گیا۔ بلوچستان ہائی کورٹ نے اس صلح کو منظور کر لیا، ٹرائل کورٹ اور اپیلیٹ کورٹ کی جانب سے دی گئی سابقہ سزاؤں کو کالعدم قرار دیا، اور خان کو الزام سے بری کر دیا۔
بریت کے بعد خان نے عدالت سے درخواست کی کہ وہ پان
Generated from the full judgment text below — not a substitute for reading the actual opinion.
2010 Y L R 2382
[Quetta]
Before Mrs. Syeda Tahira Safdar, J
BHAWAL KHAN ---Petitioner
Versus
THE STATE ---Respondent
Criminal Revision No. (s) 4 of 2007, decided on 20th May, 2010.
Penal Code (XLV of 1860) ---
----S. 337 -H(ii) ---Criminal Procedure Code (V of 1898), S.435 ---Hurt by rash or negligent act---Acquittal of accused on ground of compromise ---Application for return of amount deposited in lieu of fine --Applicant/accused had filed application seeking return of amount of Rs.5000 deposited by him in lieu of fine imposed on him while convicting him under S.337 - H(ii), P. P. C. as the matter had bee n compromised and accused was acquitted of the charge -- -Amount of fine had already been paid by accused through Superintendent Jail ---No Arsh or Daman was imposed on accused, and he was only fined ---In case of compromise and on waiving right of Arsh or Dam an by the victim, amount paid as Arsh or Daman could be returned to the accused, but in case of fine, return of amount of fine was not possible as that amount was deposited in favour of State, which could not be refunded, even in case of acceptance of comp romise and setting aside of conviction order.
Tahir Ali Baloch for Petitioner.
ORDER
MRS. SYEDA TAHIRA SAFDAR, J. ---Instant application has been filed by the applicant seeking return of amount of Rs.5,000, deposited by him in lieu of fine i mposed on him while convicting him under section 337 -H(ii) P.P.C. through judgment dated 14 -9-2006 by Judicial Magistrate, Sibi, as the matter has been compromised, which was accepted by this Court through order dated 17 -10-2008, whereby he has been acquit ted of the charge.
The perusal of record reveals that a complaint bearing No.28 of 2005 was filed by one Mir Muhammad before Judicial Magistrate, Sibi, which was registered against present applicant, on completion of trial through judgment dated 14 -9-2006 the trial Court come to the conclusion that the charge is established against the accused, present applicant namely Bahawal Khan who was convicted of the offence under section 337 -H(ii), P.P.C., while sentenced to pay fine of Rs.5000, in default he sha ll suffer two months' simple imprisonment. It is further apparent from record that the applicant preferred appeal, while the complainant also filed revision petition seeking enhancement. Both the appeal and revision petition were dismissed by the appellate Court through judgment made on 29 -12-2006. Still feeling aggrieved of the order the applicant preferred revision petition seeking setting aside of both the orders of trial and appellate Court. During pendency of the same the parties arrived to a compromis e, whereby the complainant Mir Muhammad pardoned the applicant and showed his consent for not conducting any other proceedings against him, nor he wanted to receive any Arsh or Daman. This compromise was accepted by this Court through order made on 17 - 10-2008, whereby the judgment dated 14 -9-2006 of Judicial Magistrate Sibi and dated 29 -12- 2006 of Additional Sessions Judge -II, Sibi were set aside, while the petitioner/present applicant was acquitted of the charge. Now the applicant has filed present applica tion for return of said amount of Rs.5,000 deposited by him.
The matter has been compromised between the parties, while the compromise deed filed before this Court was accepted and in consequence thereof the applicant stands acquitted of the charge. In present case the applicant was convicted for the offence punishable under section 337 -H(ii) P.P.C., which is surely a compoundable offence, as such on effecting of compromise between the parties the Court while accepting the same acquitted the applicant from the charge. But the only punishment awarded to the applicant was of fine of Rs.5000, in default he had to suffer two months' simple imprisonment. This fine has already been paid by him through Superintendent District Jail Sibi. No Arsh or Daman was imp osed on him, rather he was only fined. As such in case of compromise and on waiving right of Arsh or Daman by the victim, the amount can be returned to the applicant paid by him as Arsh or Daman, but in case of fine this is not possible, as the amount is d eposited in favour of State, which cannot be refunded even in case of acceptance of compromise and setting aside of conviction order.
The application being without merits is hereby dismissed.
H.B.T./.66/Q Application dismissed.