MUHAMMAD YOUNIS THAHEEM, J.---The petitioner Tahir Aziz, by invoking the inherent jurisdiction of this Court under section 561-A, Cr.P.C. Prayed for cancellation of to Lal Habib, respondent No,1 under sections 337-X/331(2), P.P.C., vide judgment of this court dated 31-3-2014, passed in Cr. Misc. 64-B of 2013, and commuting the respondent No,1 to jail till full payment of the specified amount of Arsh Rs,15,77,771 to the petitioner.
2. The brief facts of the case leading to file instant petition are that Lal Habib, respondent No,1 being accused in case FIR No, 214 dated 23-9-2008 under sections 324/23/109, P.P.C. At Police Station Latamber, Karak was sent for trial before the learned Additional Sessions Judge-II, Karak and on conclusion of trial, vide judgment dated 23-9-2011 he was convicted under section 324, P.P.C. And sentenced for seven years RI and was further convicted under section 337-A(v), P.P.C. And sentenced to pay Arsh to the tune of 1/3rd of Diyat. In Cr.A. No,16-B/2011 filed by the respondent No,1 and Cr.R No,21-B of 2011, filed by petitioner before this Court were adjudicated and vide judgment dated 16-4-2012 the sentence under section 324, P.P.C. Was reduced and convicted for five years RI, while conviction under section 337-A(v), P.P.C. Was enhanced to half of diyat amount as Arsh, with fine of Rs,50000 or in default of payment of fine he would further undergo for six months SI. The parties approached to the Supreme Court by filing separate criminal petitions the same were disposed of on 19-9-2012 in following terms: "We have found the compromise detailed above to be just and fair in the circumstances of this case and we allow the same. As a consequence of allowing this compromise both these petitions are converted into appeals and the same are disposed of in terms of the compromise noted above. It is, however, clarified that if Lal Habib appellant-convict fails to deposit the requisite amount of Rupees One Million with the learned trial court for its disbursement in favor of the injured victim namely Tahir Aziz within the stipulated period then his petition/ appeal shall be deemed to have been dismissed and the judgment of the High Court shall be deemed to have been upheld and maintained by this Court. It is further clarified that in case Lal Habib appellant/ convict deposits the said amount within the stipulated period then his sentence of imprisonment shall be so reduced that he is released from the jail on 30-6-2013. As a final explanation it is also clarified that irrespective of any remission in his sentence earned or to be earned by the convict he shall not be released from the jail in connection with this case before 30-6-2013. These appeals are disposed of with these clarifications.
3. Lal Habib, the respondent failed to comply with the orders/judgment dated 30-6-2013 of the apex Court by depositing the aforementioned amount of Rupees ten lacs within the stipulated period, therefore, the judgment dated 16-4-2012 of this Court has attained finality.
4. The respondent after serving his sentence invoked the jurisdiction of this Court by filing J. Cr.
Misc: No,64-B of 2013 for seekDing payment of Arsh amount in instalments and releasing him on bail, which was decided on 31-3-2014, the operating Para is as follows.
"For the reasons to be recorded later on, the instant J.Cr. Misc: bail application under section 331(2), P.P.C. Is allowed, resultantly, petitioner/convict Lal Habib Khan is granted bail for a period of five years subject to furnishing bail bonds amounting to Rs,3155542 (thirty one lacs, fifty five thousands five hundred and forty two) as equivalent to full diyat amount, with two local, reliable and men of means sureties each in the like amount to the satisfaction of trial Court, on condition that petitioner/convict will earn and arrange for the payment of Arsh Rs,1577771 (one half of diyat amount) in 60 equal monthly instalments to the injured Tahir Aziz, before the trial court, in case of failure of any instalment he will again be taken into custody and put to jail till full payment."
5. The respondent, Lal Habib challenged the aforementioned Judgment dated 31-3-2014 of this Court before the Hon'ble Supreme Court through Cr.P No,277 of 2014, which was decided vide judgment dated 10-7-2014, as under: After arguing the matter at great length the learned counsel for the petitioner wishes to withdraw this petition, so as to advise the petitioner to approach an appropriate forum for determination of the amount due from the petitioner for payment to the victim in the first instance. This petition is, therefore, disposed of as having been withdrawn.
6. After withdrawal of criminal petition Cr.P. No,277 of 2014 from the apex Court, the respondent Lal Habib approached learned Sessions Judge, Karak through Cr. Misc: Application for determination of the Arsh amount, whereas the petitioner approached the same court by filing application for cancellation of bail of respondent on the ground of wilful default in payment of instalments of Arsh amount, as determined by this court vide judgment dated 31-3-2014. Both the petitions were dismissed by the learned Sessions Judge, Karak vide order dated 6-11-2014, the operative part of the order is as under: "While so far the Cr. Misc: Bail cancellation application of the petitioner/ complainant is concerned, at this stage also no case for cancellation of bail of the respondent/convict is made out because although, the respondent/convict had not deposited the instalments after the month of May 2014, but from the available record it is very much clear that despite the fact that accused/respondent was directed for payment of Arsh amount in 60 monthly instalments, but accused/ respondent had deposited Rs,551340 in lump sum on 7-4-2014 and this fact is categorically brought on record vide order sheet No,2 dated 15-4-2014 of the instant case, file maintained in respect of deposit of monthly instalment by convict of the above Arsh, as a result of which the accused/respondent is entitled for leniency, hence, the instant Bail Cancellation Application is hereby disposed of accordingly with the observation/direction to the convict (respondent) that onward before 15th of each month, the convict will positively deposit the monthly instalment of Rs,27000 for each Month in respect of the determined Arsh amount payable to the injured complainant and in case of failure on the part of accused/ convict, he would be taken into custody and put to jail till full payment in accordance with the worthy judgment of the Peshawar High Court Bannu Bench dated 31-3-2014."
7. The petitioner being aggrieved from the judgment/order dated 6-11-2014 approached this Court by filing instant Criminal Misc: Q.P. No,2-B of 2015 contending therein that the respondent after release from jail on bail has not deposited a single penny in shape of monthly instalments, despite lapse of nine months, hence, he failed to comply direction of this court and in such a situation, the respondent violated the conditional part of the judgment dated 31-3-2014, hence, his bail should be recalled and he be commuted to jail till full payment of Rs,15,77,771.
8. Learned counsel for petitioner argued that the respondent after release from jail on bail, has not deposited a single penny in shape of monthly instalments, despite lapse of nine months and is reluctant to pay further, hence, he failed to comply with the direction of this court and in such a situation, the respondent violated the conditional part of the judgment dated 31-3-2014. He went on to say that the conduct of respondent fully falls within the definition of 'abuse' and 'misuse' of the concession extended by this Court. He lastly argued that respondent after taking concession of bail had started threatening the complainant in order to compel the petitioner for compromise. He concluded his arguments with prayer that the by this Court is recalled and respondent be commuted to jail till full payment of Arsh.
9. Learned counsel for respondent vehemently controverted the arguments advanced by learned counsel for petitioner by arguing that the fixation of amount of Arsh or diyat is the job of the trial court at the time of execution, which as per Notification No,F8 (3)1-FOIV/91-536 dated 1-7-2008, comes to 1102680, whereas half of which comes out to be Rs,551340, as the occurrence took place on 23-9-2008, while the respondent Lal Habib deposited an amount of Rs,578340 (451340+ 100000+ 27000), hence, the total amount deposited is in excess to the amount of Arsh payable by the respondent, therefore, nothing is due upon the respondent and this court has ample power to release the respondent from the liability to pay further Arsh amount by declaring the order of this Court dated 31-3-2014 being per incuriam, null and void. He further argued that amount of Arsh determined on 31-3-2014 by this Court is in violation of Article 12(b) of the Constitution. He went on to say that the respondent by not depositing instalments after 15-4-2014 has not violated the order of this Court. By opposing the contention of learned counsel for petitioner he argued that the respondent has not advanced any threat to the petitioner for forced compromise, as no FIR, complaint or even an application in this respect has been brought on record. He lastly prayed that the instant petition is liable to be dismissed without having any legal footing.
10. I have heard valuable arguments of learned counsel for the parties and learned Asstt: A.G. For the State and perused the record.
11. Perusal of the record reveals that the respondent after serving sentence filed a Criminal Misc.
Application before this Court for payment of Arsh amount 1/2 of Diyat, in instalment, which application was accepted vide order dated 31-3-2014, Arsh amount was fixed to the tune of Rs,15,77,771 and the respondent was directed to pay the same in sixty equal instalments, which order was assailed before the apex Court and later on withdrawn as discussed above, and the order of this Court has attained finality.
12. The present respondent also moved a Criminal Misc: Application before the learned Sessions Judge, Karak while the present petitioner moved an application for cancellation of by this Court.
Both the petitions were dismissed with observation/ direction to deposit monthly installment onward on 15th of each month by taking lenient view, but despite this the respondent has failed to deposit further instalments, which is the dire violation of order dated 31-3-2014 of this Court.
13. The contention of learned counsel for respondent that as per notification (supra), the half of the Arsh amount comes to be Rs,551340, as the occurrence took place on 23-9-2008, while the respondent Lal Habib deposited an amount of Rs,578340 (451340+ 100000+ 27000), hence, the total amount deposited is in excess to the amount of Arsh payable by the respondent, therefore, nothing is due upon the respondent. Which arguments of learned counsel for respondent is not tenable, as the order of this court dated 31-3-2014 has attained finality and the conduct of respondent shows that he is reluctant to pay further remaining amount of Arsh, which is clear violation of the order of this Court and respondent is liable to committed to jail till final payment of remaining Arsh amount under the conditional penal part of the order dated 31-3-2014.
14. In view of above, it is held that the respondent has violated the order dated 31-3-2014 of this court hence on accepting instant petition the concession of through the same order is recalled and respondent Lal Habib is commuted to jail.
These are the detailed reasons of my short order of the even date.