CJDA 38
JUDGMENT SHEET
IN THE LAHORE HIGH COURT LAHORE
JUDICIAL DEPARTMENT
Criminal Appeal No.02 of 2011
(Safdar Ali alias Soni
versus The State & another)
JUDGMENT
Date of hearing:
20.03.2015
Appellant by:
M/s. Abdul Khaliq Safrani and Muhammad
Saad Bin Ghazi Advocates
State by:
Mirza Abid Majeed, Deputy Prosecutor General
Muhammad Anwaarul Haq, J.:-
Appellant Safdar Ali
alias Soni, through Criminal Appeal No.02 of 2011, has challenged
the judgment dated 07.12.2010 passed by learned Additional Sessions
Judge, Phalia whereby he has been convicted under section 376 PPC
and sentenced to 25 years rigorous imprisonment with fine of
Rs.1,00,000/-, in default thereof, to further undergo two years S.I.
The benefit of section 382-B Cr.P.C was extended to the appellant.
2.
The allegation against the appellant is that he committed rape
with Laiba Altaf aged about 5/6 years in his shop that was witnessed
by the complainant Mst. Asia Altaf (mother of the victim). After
conclusion of trial the learned trial court vide impugned judgment
convicted and sentenced the appellant as mentioned above.
3.
After failing to establish innocence of the appellant, learned
counsel for the appellant has frankly conceded and opted not to
challenge the conviction of the appellant with the requests for
suitable reduction in his sentence.
Criminal Appeal No.02 of 2011
4.
2
On the other hand learned law officer while opposing the
request of the learned counsel for the appellant contends that the
learned trial court has already taken a lenient view while not awarding
death sentence to the appellant therefore, he does not deserve any
further leniency.
5.
The father of the complainant present in Court states that the
complainant along with her children including the victim has already
been deserted by her husband and she is now living with him. He
confirms that respectables of the locality have intervened and an
amount of Rs.7,50,000/- has already been agreed to be paid to the
victim as compensation.
Complainant present in Court has
acknowledged the deposit of compensation in the shape of Defence
Saving Certificates and prays for reduction in the sentence awarded to
the appellant for finalization of compromise between the parties
subject to the approval of this Court.
6.
Heard. Record perused.
7.
After having heard both the sides and scrutinized the
prosecution evidence available on the file, I am of the considered view
that the learned trial court has rightly convicted the appellant under
section 376 PPC, thus, the conviction even otherwise unchallenged is
maintained.
8.
As far as question of quantum of sentence of the appellant is
concerned, keeping in view the stance taken by the complainant and
dirt poor financial condition of the family of the victim, I am quite
convinced to examine the same.
9.
In the modern era Penal Laws of various countries provide
substantive punishments for the offence of rape and recently a
tendency has developed to provide compensatory relief to the victims
of rape for their rehabilitation and revival in the society. In the United
States of America, Victims of Crime Act 1984 provides compensation
to the victims of crime including sexual abuse.
In the United
Criminal Appeal No.02 of 2011
Kingdom,
Sexual
offences
3
Act,
2003
penalizes
rape
with
imprisonment whereas Criminal Injuries Compensation Scheme 2012
is in field that provides compensation in the suitable cases through the
Criminal Injuries Compensation Authority. In India section 376 of
the Indian Penal Code, 1860 proposes imprisonment and fine as
primary punishments and additionally section 357 of Code of
Criminal Procedure 1973 empowers a criminal court that the whole or
any part of fine recovered can be paid to the victim as compensation
for any loss or injury caused by the offence. The said section also
casts an obligation on State Governments to introduce Victim
Compensation Schemes for provision of funds for the purpose of
compensation to the victims.
The Superior Courts in various
countries have regarded rape as violation of fundamental right to life
and as such compensation has been awarded under the public law
remedies to be paid by the State.
10.
In Pakistan section 376 PPC provides the following punishment
for rape: [376. (1) Whoever commits rape shall be punished with death or
imprisonment for either description for a term which shall not be
less than ten years or more than twenty-five years and shall also be
liable to fine;
(2)
When rape is committed by two or more persons in
furtherance of common intention of all, each of such persons shall
be punished with death or imprisonment for life.]
In addition to the punishment provided under section 376 PPC, Code
of Criminal Procedure 1898 provides adequate compensation to the
crime victims under sections 544-A. For ready reference section 544A Cr.P.C is reproduced hereunder:“[544-A. Compensation of the heirs to the person killed, etc.
(1)
Whenever a person is convicted of an offence in the commission
whereof the death of, or hurt, injury, or mental anguish or
psychological damage, to, any person is caused or damage to or
loss or destruction of any property is caused the Court shall, when
convicting such person, unless for reasons to be recorded in
writing it otherwise directs, order, the person convicted to pay to
the heirs of the person whose death has been caused, or to the
person hurt or injured, or to the person to whom mental anguish or
Criminal Appeal No.02 of 2011
4
psychological damage has been caused, or to the owner of the
property damaged, lost or destroyed, as the case may be, such
compensation as the Court may determine having regard to the
circumstances of the case.
(2)
The compensation payable under sub-section (1) shall be
recoverable as [an arrears of land revenue] and the Court may
further order that, in default of payment [or of recovery as
aforesaid] the person ordered to pay such compensation shall
suffer imprisonment for a period not exceeding six months, or if it
be a Court of the Magistrate of the third class, for a period not
exceeding thirty days.
(3)
The compensation payable under sub-section (1) shall be in
addition to any sentence which the Court may impose for the
offence of which the person directed to pay compensation has been
convicted.
(4)
The provisions of sub-sections (2-B), (2-C) and (4) of section 250
shall, as far as may be apply to payment of compensation under
this section.
An order under this section may also be made by an Appellate
Court or by a Court when exercising its powers of revision.]
(5)
The Hon’ble Supreme Court of Pakistan has held in various cases that
compensation awarded under section 544-A Cr.P.C is mandatory
requirement of law in addition to any sentence, which the Court may
impose upon the convict. PLD 2004 SC 89, 1995 SCMR 1679, 1992
SCMR 549 and many other cases can be quoted to highlight the
importance of awarding compensation to the crime victims under
section 544-A Cr.P.C. Suffice it to refer a portion of the observations
of the Hon’ble Supreme Court in the case of “The State versus Rab
Nawaz and another” (PLD 1974 SC 87): “24. Before I conclude it is important to observe that
section 544-A Cr.P.C., which on conviction of the accused in
a case involving death, hurt or injury to or loss, destruction
or theft of property requires the Court to “award
compensation to the heirs of the person killed” or to an
injured person, or who has suffered loss of property, is very
salutary. Its provision is mandatory and casts a clear duty on
the Court to award compensation “unless for reasons to be
recorded it otherwise directs”.
The plain object is to
Criminal Appeal No.02 of 2011
5
alleviate the suffering of the bereaved family or as the case
may be, the injured person, or who suffers loss of property. It
can also be an effective deterrent against violent crime and
crime against property, the incidence of which is on the
increase and becoming disquieting.
It is also important to point out that “compensation” is
a very well understood expression. It is something to be paid
which makes up for the loss that the other person has
suffered.
Under section 544-A, Cr.P.C. the amount of
compensation though recoverable as fine is not fine.
Therefore, for proper discharge of its statutory obligation
under section 544-A, Cr.P.C. the Court at the penultimate
stage of the case, may have to receive evidence to determine
the quantum of compensation, appropriate in a particular
case.
It is obvious that for the purpose of substantive
sentence under section 302, P.P.C., the law does not
distinguish between the murder of an infant and that of an
adult who is also a bread winner of his family. Similarly
financial position of an accused is not material so far as
substantive
punishment
is
concerned.
But
these
considerations become highly relevant for the purpose of
determining proper compensation under section 544-A, Cr. P.
C. Such inquiry becomes necessary so that, on the one hand
the compensation awarded is commensurate with the loss
suffered by the victim of the crime or his family and on the
other hand the order for compensation is not made in vain for
want of capacity of the convict to pay. Power to conduct such
inquiry must be regarded as incidental or ancillary to the
main power exercisable under section 544-A, Cr. P. C.,
which, the section being remedial, will be necessarily read
into it so as to advance the remedy and to give effect to the
legislative intent.”
Criminal Appeal No.02 of 2011
6
The words hurt, injury, mental anguish and psychological damage
caused to the victim are the key words in section 544-A Cr.P.C
qualifying victims of rape and sodomy entitled for compensation
under section 544-A Cr.P.C. This Court has observed in numerous
cases that even after insertion of section 544-A Cr.P.C, trial courts are
not passing any order for compensation to the victims of rape and
sodomy ignoring this mandatory provision of law. Needless to add
that in appropriate cases victims of such offences can validly draw the
attention of the learned trial courts for award of adequate
compensation under section 544-A Cr.P.C and in case no such order is
passed by the learned trial court, victim can also invoke the provisions
under sections 435, 439 & 439-A Cr.P.C before the appellate forums
as well as before this Court under section 561-A Cr.P.C for award of
compensation under section 544-A Cr.P.C while examining the
correctness or propriety of the sentence awarded by the learned trial
court. The Hon’ble Supreme Court of Pakistan in the case of “Mokha
versus Zulfiqar & 9 others” (PLJ 1978 SC 19) has clarified this
aspect of the proposition in the following words: 35.
The trial Court had failed to award compensation
under section 544-A Cr.P.C.
The Division Bench while
maintaining the convictions of Zulfiqar, Azam and Rajada
also did not award any compensation. Accordingly, there
was no compliance with the mandatory provision. I would,
therefore, direct, that the respondents shall pay a fine of
Rs.1000/- each as compensation to the heirs of the two
deceased in equal shares, under section 544-A Cr.P.C or in
default, to suffer rigorous imprisonment for six months.
36.
Accordingly, the appeal is allowed and the judgment
of the High Court stands modified to the extent indicated
above.”
11.
The case in hand is also an example where the learned trial
court even after passing conviction and sentence against the accused
Criminal Appeal No.02 of 2011
7
has not passed any order regarding payment of any compensation to
the victim of the offence. Even learned trial court remained fail to
notice section 545 Cr.P.C while passing the sentence of fine in this
case that empowers the trial court to pay expenses or compensation
out of fine. Section 545 Cr.P.C reflects as under:[545. Power of Court to pay expenses or compensation out of fine.
(1) Whenever under any law in force for the time being a Criminal Court
imposes a fine or confirms in appeal, revision or otherwise a sentence of
fine, or a sentence of which fine forms a part, the Court may, when
passing judgment, order the whole or any part of the fine recovered to be
applied—
(a)
in defraying expenses properly incurred in the prosecution;
(b)
(c)
in the payment to any person of compensation for any loss [injury
or mental anguish or psychological damage] caused by the
offence, when substantial compensation is, in the opinion of the
Court, recoverable by such person in a Civil Court;
when any person is convicted of any offence which includes theft,
criminal misappropriation, criminal breach of trust or cheating, or
of having dishonestly received or retained, or of having voluntarily
assisted in disposing of stolen property knowing or having reason
to believe the same to be stolen, in compensating any bona fide
purchaser, of such property for the loss of the same if such
property is restored to the possession of the person entitled
thereto.
(2)
If the fine is imposed in a case which is subject to appeal, no such
payment shall be made, before the period allowed for presenting the
appeal has elapsed, or, if an appeal be presented, before the decision of
the appeal]
12.
Adverting to the question of acceptance of joint request of the
parties for reduction of sentence of the appellant in the backdrop of a
settlement between them outside the Court, I am of the considered
view that while dealing with the question of sentence, approach of the
court should be dynamic and the court has to find ways and means to
guarantee complete dispensation of justice to all stakeholders of a
criminal case, as most of them being unaware of the legal
technicalities, flaws/lacunas left in the investigation and defects in
conduct of their trials, only see the result announced by the court and
form an opinion about the prevailing system of administration of
justice. The question of sentence after conviction of an accused in a
Criminal Appeal No.02 of 2011
8
criminal trial essentially requires serious consideration of the Court to
meet the ends of justice, thus, the court should answer it keeping in
view facts and circumstances of each case subject of course to the
penal provisions under the relevant law and sentence provided
thereunder without causing any prejudice to either side in any manner
whatsoever. The benefitting and proper approach of the trial court in
this regard can substantially reduce the volume of litigation as the
appropriate sentence can satisfy the victims of the offence and also the
convicted accused who can be saved to knock the doors of the
appellate forums for redressal of their grievance. Keeping in view all
above, I am convinced that case in hand is a fit case where will of the
parties can validly be adhered to.
I shall take advantage of quoting
here an observation of the Hon’ble Supreme Court of Pakistan in the
case of “Mst. Sarwar Jan versus. Ayub and another” (1995 SCMR
1679) wherein the Hon’ble Supreme Court of Pakistan when found
the sentence passed against the accused inadequate, on the request of
the counsel for the accused has held as under:“36. Facing embarrassing situation the learned counsel for
the respondents pleaded that his clients have already
undergone their sentences. They are out. It would be harsh if
their sentences of imprisonment are enhanced. They are rearrested and remanded to custody.
However, there was
consensus at the bar that it would in the interest of justice and
interest of victim that if adequate compensation under section
544-A Cr.P.C is paid to the victim. We are impressed by such
consensus.
37.
We are therefore, inclined to maintain the conviction
and sentences awarded to the respondents by the Judicial
Magistrate but additionally award compensation under
section 544-A Cr.P.C to the victim. The respondents are
directed to pay compensation of Rs.25,000/- each to the
victim Muhammad Iqbal. They shall deposit it in the Court of
Criminal Appeal No.02 of 2011
9
Judicial Magistrate, Haripur within a period of one month. If
fine has already been deposited as directed by the Judicial
Magistrate by the respondents and paid to the victim the same
shall be deducted from the compensation of Rs.25,000. In
failure whereof they shall suffer R.I. for six months in jail.
The Judicial Magistrate shall issue coercive process for their
arrest and remand them to custody in that even. Besides the
Magistrate, to recover the compensation as arrears of Land
Revenue from the respondents.”
In the case of “Bahadar Ali versus The State” (2002 SCMR 93) the
Apex Court has observed as under: 9.
Reverting to Criminal Appeal No.359 of 1999 at the
behest of complainant Nazir Ahmad, Mr. Khadim Hussain
Qaiser, learned Advocate Supreme Court as against Bahadur
Ali did not press his prayer for enhancement of sentence of
life imprisonment to death but he pressed for enhancement of
compensation payable to the legal heirs of the deceased. In
support of his submission, learned counsel referred to Razia
Begum v. Jehangir reported in PLD 1982 SC 302, in which
this Court while refraining from awarding death sentence of
convict, although he deserved it, imposed a fine of
Rs.25,000/- as enhancement of sentence. It was directed that
on realization the amount shall be paid as compensation to
the heirs of the deceased under section 544-A Cr.P.C. In the
facts and circumstances of the case, while we are inclined to
enhance the sentence of life imprisonment in view of release
of the convict but would enhance the amount of
compensation from Rs.50,000/- to Rs.1,00,000/- which shall
be recovered by way of arrears of land revenue and paid to
the legal heirs of the deceased. Reference may be made to
the precedent reported as Muhammad Sharif v. Muhammad
Javed (PLD 1976 SC 452) relevant page 461.” (Emphasis
supplied)
Criminal Appeal No.02 of 2011
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In the case of Anwar Ali Shah versus The State (1992 SCMR 1224)
the Hon’ble Supreme Court of Pakistan while dealing with the similar
question whether the sentence of imprisonment can be converted into
a sentence of fine so as to compensate the victim of an offence, has
observed as under: “We are also of the view that the sentence of ten years’ R.I.
could have been enhanced by adding some more years of
R.I.; but, ultimately both the learned counsel agreed that
instead of enhancing rigorous imprisonment, the sentence
of fine may be enhanced so as to compensate the heirs of
the deceased. This approach is reasonable and satisfies the
Islamic Ethos also. We, accordingly, instead of enhancing
the rigorous imprisonment, enhance the fine to Rs.1,50,000/-.
The entire amount, when recovered, shall be paid as
compensation to the heirs of the deceased.
In default of
payment of fine, the accused-appellant shall suffer rigorous
imprisonment for 6-1/2 years. The acquittal appeal, namely,
Criminal Appeal No.169 of 1991 is partly allowed with the
enhancement
of
sentence
of
fine
and
award
of
compensation.” (Emphasis supplied)
Therefore, by seeking guidance from the case law referred above,
sentence of 25 years rigorous imprisonment awarded to the appellant
under section 376 PPC is reduced to 10 years R.I. with the benefit of
section 382-B Cr.P.C. Sentence of fine of Rs.1,00,000/- and further
detention in default thereof are maintained, however, in case of
payment of fine the same shall also be paid to the victim through her
mother as compensation under section 545 Cr.P.C.
The original
Defence Saving Certificates of an amount of Rs.7,50,000/- bearing
registration No.29275 dated 18.03.2015 have already been handed
over to the complainant. Deputy Registrar (Judicial) of this Court
Criminal Appeal No.02 of 2011
11
shall direct Officer Incharge, National Saving Centre concerned to
make an endorsement in the relevant book that no one is authorized to
encash these certificates except the victim herself upon attaining her
majority. Needless to add that in the utmost need of the victim, her
guardian can validly apply for encashment of the full amount or part
thereof before the learned Guardian Judge concerned who can pass an
appropriate order keeping in view the best interest of the minor victim
of the offence. With this modification in the quantum of sentence of
the appellant, this Criminal Appeal stands dismissed.
(Muhammad Anwaarul Haq)
Judge
*Saeed Akhtar*
APPROVED FOR REPORTING
Judge