He can now contest the polls as five years have already passed since his serving the sentence.

The Public Prosecutor (PP) expressed concern over the trial court order yesterday while the defence was satisfied with it.

Earlier on January 4, Judge Mohamamd Amirul Islam of the First Additional District and Sessions Judge's Court, Dhaka, had asked the former president, who was on bail, to surrender by yesterday for serving out his sentence.

The defence lawyers on January 10 submitted a petition seeking withdrawal of the January 4 order.

But in his yesterday's order, Judge Amirul said Ershad has 'already served out his sentence in full' and he may remain 'as it is till for further order'.

Ershad, his party leaders and lawyers appeared before the court at 10:15am, and the court started the hearing at 11:30am.

Additional police force and Rapid Action Battalion (Rab) were deployed on and outside the court premises to avoid any untoward incident.

Moving the petition, defence counsel Barrister Rokanuddin Mahmud argued that Ershad had been in custody for three years, one month and 23 days before his conviction on July 6, 1995.

A bail petition for the former president in this case was also submitted yesterday but no order on it was issued.

Mentioning a provision of the Criminal Procedure Code (CrPC), Rokanuddin told the court that if the total period of one's custody is longer than the period of imprisonment, he or she shall be deemed to have served out the sentence of imprisonment. So, Ershad need not be in custody to serve out the sentence, as he has been in custody for over three years', the lawyer added.

Opposing the defence lawyers' arguments on the January 10 petition, Public Prosecutor (PP) Mohammad Mohsin Miah said the trial court and the HC had had earlier handed down the sentence after considering his (Ershad) old age and period of custody. So, he must be in custody now, and must file a leave to appeal with the Supreme Court (SC) against the sentence, the PP said.

After an hour-long hearing of the both sides, the judge took an hour to prepare his order and passed it at 1:30pm in a packed courtroom.

Later, Rokanudin told reporters that they were happy with the court verdict but the PP said he was displeased, and he would file an appeal with the higher court against it.

But Ershad and his party leaders Kazi Zafar Ahmed, ABM Ruhul Amin Howlader and Kazi Firoz Rashid declined to comment on the order.

Section 35(A) of the CrPC says: Where a person is in custody at the time of conviction and the offence for which he is convicted is not punishable with death or in prison for life, the court may, in passing the sentence of imprisonment, take into consideration the continuous period of his custody immediately preceding his conviction.

The court in its order mentioned that Section 35 (A) is applicable in this case.

Ershad was found guilty of misappropriating Tk 33 crore in a shady deal for purchasing 520 Japanese boats and 10 water purifying machines for relief operation in 1989.

On July 6, 1995, Judge Jinnat Ara of the trial court sentenced Ershad to three years' imprisonment. The court also fined him Tk 10,000 and in default, he was to be in jail for four more months.

The same year, Ershad filed an appeal with the HC against the lower court verdict.

Later, justice Faisal Mahmud Faizee of the single-member HC bench rejected his appeal and handed down two years' imprisonment to the former president.

Faizee also asked Ershad to surrender before the trial court without specifying any time or date.

According to the prosecution, Ershad was shown arrested in the case on May 13, 1992 after submission of the probe report the same day. He was granted bail on August 19, 1996 and released from jail on January 9, 1997.

Following the December 14 HC verdict, Ershad's five nomination papers for general elections were cancelled by the returning officers. In response to an appeal against this, the Election Commission had also declared him unfit for contesting the polls, and his nomination papers illegal.

The former president was discharged and acquitted of four graft cases in August and September last year after his announcement to join the BNP-led four-party alliance.

A lawyer of Dhaka Bar Association on condition of anonymity told The Daily Star that Ershad got an appropriate order from the court after the new caretaker government took over.