MUHAMMAD DAUD KHAN, J.--Petitioner Lal Habib, convict of case FIR No.214 dated 23.09.2008, registered under sections 324/34/109 P.P.C. at Police Station Latamber, District Karak, has filed this petition from Jail, seeking payment of arsh equal to one half of Diyat through installments and his release on bail till its payment, being destitute, having no source whatsoever to pay or arrange its payment from inside the Jail.
2. Learned counsel for the petitioner argued that the petitioner has served his substantive sentence of 05 years rigorous imprisonment, but is still suffering the rigors of prison by virtue of non- payment of arsh equal to one half of diyat. He next argued that the petitioner is a destitute having no source to pay the amount of arsh inside the jail in his entire life, so in case of his release on bail, it would be more suitable and easy for him to earn and pay Arsh to victim in installments, which exercise would not only decrease the agonies of the petitioner, but at the same time, would equally be beneficial for the victim to get something in hand. He requested that petitioner may be released on bail while payment of Arsh be ordered in installments. 2(sic) Learned Additional Advocate General, assisted by learned private counsel for the complainant controverted the submissions of learned counsel for the petitioner and contended that the apex court has already taken lenient view against the petitioner and he was directed, to pay total amount of rupees one million within two months from the day of decision, but he failed to comply with the decision of the apex Court, so in the circumstances, the judgment of this Court is in field and the petitioner would be dealt with in accordance with the sentence awarded therein. He, however, expressed his no objection on payment of arsh through installments on its discretion keeping in view the peculiar facts and circumstances of the case.
3. I have heard the respective submissions of both the sides and perused the record with their valuable assistance.
4. It appears from the record that petitioner Lal Habib, involved in case FIR No.214 dated 23.09.2008, registered under sections 324/34/109, P.P.C. at Police Station Latamber District, Karak was tried by learned Additional Sessions Judge-II, Karak, whereby he was convicted under sections 324 and 337-A(v), P.P.C. and sentenced to undergo 07 years rigorous imprisonment under section 324, P.P.C. and to pay Arsh to the tune of one 1/3rd of Diyat amount under section 337-A(v),A P.P.C. Being aggrieved from his conviction and sentence, the petitioner filed Cr.A. No.16-B/2011, before this Court which was partially allowed, consequently, his sentence was reduced in the following manner. For convenience the operating part of the judgment of this Court is reproduced below:-- "Thus, keeping in view the attending circumstances of the case, appeal of convict-appellant Lal Habib, is partially allowed, his sentence of imprisonment is reduced from seven years to five years under section 324 P.P.C. However, by accepting the criminal revisionpetitionofthe complainant, convict Lal Habib is sentenced to pay fine of Rs.50,000/- in default whereof to undergo 6 months S.I. under section 324 P.P,C, which was not awarded by the learned trial court. The appellant- convict is held liable to pay Arsh equal to one half of the Diyat under section 337-A(vi), P.P.C. instead of Section 337-A(v), P.P.C. The amount of Arsh shall be payable to the injured and in case of non- payment of Arsh, the appellant-convict shall be kept in Jail, till payment of the Arsh and would be dealt with to simple imprisonment.Benefitof Section 382-B, Cr.P.C. is extended to him".
5. Being discontented with the findings of this Court, petitioner preferred Criminal Petitions Nos.188 and 48-P of 2012, before the Hon'ble Supreme Court. During hearing of the petitions, the parties entered into compromise and the petitions were disposed of in light of terms of the compromise.
The concluding Paragraph of judgment of the apex Court is reproduced for ready reference:-- "Both the parties to this case are represented before us through their learned counsel, the injured victim namely Tahir Aziz and his elder brother namely Asif Aziz are present before the Court in person and paternal uncle of Lal Habib petitioner-convict namely Waseem Akram is also in attendance in person. During the course of hearing of these petitions, a compromise has been entered into by concerned and the said compromise is in the following terms:-- (I)The sentence of imprisonment passed against Lal Habib petitioner-convict may be reduced to a period which enables his release from the jail on 30.06.2013.
(II)Instead of payment of Arsh and fine, Lal Habib convict shall deposit a sum of Rupees one million (Rs.1,000,000/-) with the learned trial Court within two months from today for its disbursement to the injured victim namely Tahir Aziz and the learned trial Court shall be obliged to deliver this amount to the injured victim immediately after its deposit by the convict or his representative; (III)In view of the compromise arrived at between the parties both the present petitions shall be disposed of in terms of the compromise; and (IV)In case Lal Habib convict fails to deposit the requisite amount ofreupees one Million(Rs.1,000,000/-) with the learned trial Court within two months from today, both these petitions shall stand dismissed ipso facto.
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 requite amount of rupees one Million with the learned trial Court for its disbursement in favour 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 30.06.2013. 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 30.06.2013. These appeals are disposed of with these clarifications".
5(sic) The petitioner failed to honour the terms of the compromise and to comply with the judgment of the apex Court by depositing the amount of one Million rupees within the stipulated period of two months from the date of judgment of the apex court. It has been clarified by the apex Court that in case of failure of the petitioner to deposit the requisite amount, the judgment of this Court dated 16.04.2012, shall be deemed to have been upheld and maintained. In this way, the judgment which is in field is that of this Court and the petitioner will be dealt with in accordance with the same. Record divulges that petitioner has served his substantive sentence and is behind the bars by virtue of non-payment of Arsh. Section 337-X P.P.C., postulates a mechanism for payment of Arsh to be paid in lump sum or in installments spread over a period of five years. For convenience section 337-X P.P.C. is reproduced below:- "Section 337-X P.P.C. Paym ent of arsh: (1)The Arsh may be made payable in a 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 arsh 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 arsh is paid in full may be released on bail if he furnishes security or surety equal to amount of arsh to the satisfaction of the Court.
(3)Where a convict dies before the payment of arsh any part thereof, it shall be recovered from his estate.
6. The bare reading of the section ibid, provides two modes of payment of Arsh i.e. in lump sum or in installments, spreading over a period of five years. Perusal of judgment of this Court dated 16.04.2012, depicts that the petitioner has been held liable to pay Arsh equal to one half of the Diyat, but the mode of payment of the same has not been clarified, however, from the language of the judgment, what can be deduced, would be that when nothing has been mentioned about payment of Arsh in installments, it impliedly means payment in lump sum. The judgment of this Court, on one hand, has attained finality upto the honourable apex Court, while on the other hand, this Court cannot alter or review its judgment, in view of the bar contained in section 369 of the Cr.P.C. which for convenience is reproduced as under:- "S.369. Court not to alter judgment.
Save as otherwise provided by this Code or by any other law for the time being in force or, in case of a High Court by the Letters Patent of such High Court no Court when it has signed its judgment, shall alter or review the same, except to correct a clerical error".
7. The thread bare reading of the section ibid clearly provides only rectification of any clerical error in the judgment and not more than that, while in the instant case, we are not confronted with any such clerical error, rather with mode of payment of Arsh, which has not been specified in the judgment. Admittedly, the petitioner has served his substantive sentence, but is still suffering the rigors of Jail due to non-payment of Arsh. He has shown his complete inability to pay the same inside the jail, having no source to arrange the same being destitute. The Code of Procedure is always designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties; not a thing designed to trip people up. No problem arises for the Court for considering whether any lapse in the observance of the procedural law needs to be excused or overlooked. In the larger interests of administration of justice the Court may and the Court in fact does, excuse or overlook a mere irregularity or a trivial breach in the observance of any procedural law for doing real and substantial justice to the aggrieved and the Court passes proper orders which will serve the interests of justice best. Technicalities should not stand in the way of Courts doing substantial justice. After serving out substantive sentence of imprisonment keeping the convict in jail for non-payment of diyat, Arsh or Daman owning to the incapacity of the convict or because he is not in a position to furnish security for his bail is a punishment and not only incommensurate with the additional compensatory punishment but also offensive to human dignity. Human being cannot be allowed to rot in jail like a vegetable or to dye in an iron cage like an animal merely because for no fault of his own.
8. In light of the above and taking into consideration the substantial justice, the payment of arsh through installments and release of the petitioner on bail, would not only decrease the agonies of the petitioner but at the same time would be beneficial for the injured Tahir Aziz to get some thing in hand, as in case of release of the petitioner he would be able to earn and pay to the petitioner.
Otherwise, the stay of the petitioner without payment of Arsh would be meaning less for the victim.
In view of the above, this petition was allowed and the following short order of the even date was passed:-- "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 hundreds 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 installments to the injured Tahir Aziz, before the trial court, in case of failure of any installment he will again be taken into custody and put to jail till full payment."
These are the detailed reasons for our short order of even date.