' Ghaniur Rehman was charged for criminal intimidation by firing 2/3 shots at the house of Izzat Khan complainant and his brother Mehr Wali (P.W.) under section 506, P.P.C. Vide F.I.R. No, 200, dated 21-10-1982 P.S. Naurang, District Bannu. At the trial Izzat Khan, the complainant and his father Shaista Khan appearing as P.Ws, had however, claimed that the accused had in fact fired at them with intention of murder which luckily went amiss. They thus attempted to make out a case of attempted murder against the petitioner. In their assertion as such the complainant however, stood rebutted by his statement in the F.I.R. While Shaista Khan (P.W.) by his statement under section 161, Cr.P.C. There were also not found crime empties, cardboard discs, pellets or marks of the pellets on the walls around from the spot in corroboration of their ocular evidence.
2. On examination under section 342, Cr.P.C. The accused petitioner professed innocence and charged the P.Ws. Being a father and son inimically disposed towards him and interested in his false involvement.
3. The evidence as above was, however, believed by the trial Court who proceeded to pass the order in the words:- "I convict the accused for one year's imprisonment, but I cancel his imprisonment due to his first offence. I send him on probation for the period of one year...".
It may be stated here that the learned Magistrate was perhaps inexperienced to pass the above order couched in inartistic language and not to differentiate between conviction and sentence.
After finding an accused guilty the Court first orders his conviction and then proceeds to pass a suitable sentence on him commensurate with the gravity of the offender. Here the trial Court has convicted the accused for one year imprisonment due to inadvertence or lack of knowledge and at the same time he sent the accused-petitioner on probation for a period of one year. His order comprises of two parts, one part of the conviction and sentence and the other part of the probation. The first part to the extent of conviction is alright but to the extent of sentence is seemingly wrong as at the same time the Court has also proceeded to send the accused on probation.
4. The defect as pointed out above, was taken notice of by the learned Additional Sessions Judge Bannu at Lakki in revision. He referred to a Single Bench authority published in PLD 1967 Pesh. 105 which laid down a law that under section 5(b) of the Probation of Offenders Ordinance, 1960 after recording the conviction of the accused if the Magistrate forms an opinion that instead of sentencing the person at once he may be sent on probation, he shall proceed to pass the orders of probation and if the Magistrate passes the orders of sentence of imprisonment against an accused-person and also places him on probation at the same time, the order of sentence would nullify the order of probation. Following the authority, the Court of revision declared the order of probation unlawful and ordered the accused-petitioner to suffer the imprisonment. Unfortunately, PLD 1969 Pesh. 226, a Division Bench, authority, was not brought to his notice which dissented from the Single Bench authority, holding that if by inadvertence the Magistrate while releasing an offender on probation has also at the same time sentenced him to imprisonment the same will not render the order regarding probation unlawful. In the later authority reference was also made to the provisions of sections 562, 563 and 564 of the Code of Criminal Procedure, since repealed and substituted by the Probation of Offenders Ordinance, 1960, in connection therewith the Lahore High Court had quashed the orders regarding the sentence and maintained he order regarding the probation in cases published in AIR 1930 Lah. 56 and AIR 1934 Lah.
514.
In fact under section 5 of the Probation of Offenders Ordinance, the Court has the powers to make a probation order in case of conviction of an accused-person for certain offences if in his opinion having regard to the circumstances including the nature of the offence and the character of the offender, he considers it expedient for which he has to record reasons in writing that instead of sentencing him at once he should make a probation order placing the accused under the supervision of a Probation Officer for a period from one year to three years binding him to commit no offence and to keep peace and be of good behavior during the said period and if called upon to appear and receive the sentence during the period of bond. Thus in a way the Court passes the order of conviction as well impliedly the order of sentence but suspends the order of sentence and instead sends the offender on probation under the bond and as long he complies with the requirements of the bond not to commit an offence and to keep peace and be of good behavior and fulfils any other condition of the bond, he continues on probation while in case of contravention of the terms of the bond, the accused is called upon to appear and receive and undergo the sentence during the period of the bond.
5 Since the impugned order of the learned Additional Sessions Judge was made in exercise of the powers conferred by section 439-A , Cr.P.C. While clause (b) of subsection (4) of section 439 forbids the High Court to entertain any proceeding in revision with respect to the order made by the Sessions Judge under section 439-A, as such, the petitioner having been left with no remedy to set at naught the injustice done to him by the impugned order which has been found based on wrong interpretation of law, he invoked the inherent powers of the High Court to secure the ends of justice. In a case like the one the High Court shall be justified to exercise its inherent powers under section 561-A, Cr.P.C. To set aside the impugned orders passed in revision in order to do real and substantial justice in the cause and to prevent the abuse of the process of the Court and to secure the ends of justice and in the instant case for added reason also because the trial Court had recorded the conviction of the petitioner on the uncorroborated inconsistent testimonies of interested witnesses. I would have better thought about the all-out release of the petitioner in face of the evidence but shall preferably refrain because of petitioner having accepted the conviction by not filing appeal and also not making such a prayer to me, may be, on account of guilty mind on his part.
6 By the impugned order, the learned Additional Sessions Judge has confiscated the licensed shotgun but for no rhyme and reason. E The shotgun has not been connected with the commission of the offence in any manner. It shall, therefore, be returned to the licensee.
7 As a result, the impugned order of the learned Additional Sessions Judge is hereby set aside while that of the trial Court is restored with modification that on conviction under section 506, P.P.C. The petitioner is sent on probation for a year on furnishing the requisite bonds.