ALAM JAN vs THE STATE And Another

This is somewhat different case in nature arising in the following circumstances.

2. Alam Jan petitioner herein was convicted by Additional Sessions Judge, Kohat vide judgment dated 1-2-1995 under section 324, P.P.C. For attempting at the life of respondent Abdul Qadir.

Consequent to his conviction the petitioner was sentenced to imprisonment for the period already undergone by him. Aggrieved Abdul Qadir (respondent) filed revision petition in this Court for the enhancement of the sentence of imprisonment and also imposition of compensation payable to the respondent. The revision petition was admitted to regular hearing. After hearing the parties, the revision petition was allowed on 20-4-1998 and in pursuance thereof Alam Jan petitioner who was on bail was taken into custody and following short order was passed and duly signed by me:- "For reasons to be recorded later, this criminal revision is accepted and by maintaining the conviction of the accused-respondent Alam Jan, his sentence is enhanced to four years' R.I. And a fine of Rs.50,000 or in default of payment of fine to undergo further six months' S.I. Benefit of section 382-B, Cr.P.C. Is also extended to the accused-respondent. The accused-respondent is present in Court on bail. He is taken into custody and sent to jail to undergo the sentence.

Announced 20th April, 1998."

2-A. However, in the detailed judgment written later the sentence of the petitioner was enhanced to four years as Tazir and also to pay Rs.50,000 as Arsh for inflicting two injuries on the person of Abdul Qadir (respondent) or in default of payment of Arsh to undergo simple imprisonment till payment thereof. It would be appropriate to reproduce the concluding para. Of the detailed judgment of 20- 4-1998:-- "Therefore, in such circumstances, I feel justify to allow the petition and enhance the imprisonment to four years as Tazir and also sentence the respondent accused for the offence under section 337- D, P.P.C. For inflicting two 'Jurh Jaifah' injuries on the person of petitioner Abdul Qadir to pay Rs.50,000 as Arsh or in default of payment of Arsh to undergo simple imprisonment till payment thereof.

However, the benefit of section 382-B, Cr.P.C. Is allowed to respondent --accused. The petition is disposed of accordingly."

3. The petitioner after serving his sentence as per short order dated 20-4-1998 was released from jail. The complainant-- respondent approached this Court through Criminal Miscellaneous No.296 of 2000 for the arrest of the petitioner and remanding to jail till payment of the amount of Arsh. The petitioner-accused was issued summon and subsequently NBW of arrest. In pursuance thereof the petitioner was arrested. Saddened with his arrest, the petitioner filed instant petition under section 561-A, Cr.P.C. For quashing the detailed judgment dated 20-4-1998.

4. The learned counsel for the parties heard and record gone through.

5. There can be no controversy that where an order has been announced verbally in the open Court and later on while writing the reasons thereof if new material or issue comes to the notice of the Court or any important aspect which was not pointed by the lawyers, during the arguments or slipped the notice of the Court, the Court in the interest of justice can reverse its order orally announced in order to secure the ends or justice.

6. But in the instant case, the situation is peculiar. As observed above, the short order dated 20-4- 1998 was announced in the open Court and also signed. It was duly implemented and acted upon.

The accused served out his sentence. Now the question as to which of the two orders will prevail would not be difficult to resolve out in the light of the dictum laid by the august Supreme Court in the case of Babar Khan v. The State and others (Criminal Review Petition No.33 of 2061). The facts of the said case were that petitioner Babar Khan therein was tried and convicted under section 302, P.P.C. And sentenced to life imprisonment with fine of Rs.20,000 in. Default thereof to undergo 2 years' R.I. The order of this Court (Peshawar High. Court) acquitting the accused ill appeal was assailed before Supreme Court through two petitions for leave to appeal one by State and other by the complainant. After hearing the appeals on 9-5-2001 Babar Khan was directed to pay Rs.2,00,000 as Diyat and it was also ordered through a short order with reasons to be recorded later that the period of sentence i.e. 5-1/2 years be considered as imprisonment under section 308(2), P.P.C but while recording the reasons, the order of the trial Court was restored whereby the accused was sentenced to life imprisonment under section 302, P.P.C. When both the orders were brought to the notice of august Supreme Court, the august Supreme Court held that short order which had been implemented and Diyat amount had been duly paid shall be valid order. The detailed order was reviewed and conviction and sentence was converted to section 308(2), P.P.C.

And imprisonment to 5-1/2 years.

7. In the instant case, too, the short order has been implemented and given effect giving legitimate expectation to the petitioner to be a free man.

H.B.T./905/P