Accused was convicted under subsection (2) of S. 3 of Illegal Dispossession Act, 2005---High Court observed that although, Illegal Dispossession Act, 2005 was silent as to whether it was compoundable or not, however, the dispute being related to property was presumed to be of civil nature---Room for negotiation, in civil rights, ever remained open, therefore, the legislature in its wisdom had left it open for the courts to decide such issue---Keeping in view the compromise, which had taken place between the parties outside the court, it was not proper to uphold the conviction specially when the complainant himself did not want to pursue his case anymore and had raised no objection to the acquittal of the accused-appellant---Compromise application arrived at between the parties merited consideration, therefore the same was accepted---Consequently, appeal was disposed of.
2020 P Cr. L J Note 20
[Sindh]
Before Muhammad Saleem Jessar, J
AKHTER HUSSAIN---Appellant
Versus
STATION HOUSE OFFICER SACHAL KARACHI and 2 others---Respondents
Criminal Appeal No. 214 of 2017, decided on 12th July, 2018.
(a) Illegal Dispossession Act (XI of 2005)---
----Ss. 3, 4 & 9---Criminal Procedure Code (V of 1898), Ss. 426 & 345---Prevention of illegal dispossession of property---Suspension of sentence---Compromise---Scope---Legislature had not provided any specific provision of law in the Illegal Dispossession Act, 2005 for compounding the offence---Section 9 of the Act, provided that unless otherwise provided in the Illegal Dispossession Act, 2005, the provisions contained under the scheme of Criminal Procedure Code, 1898 shall be applicable to all the proceedings under the Act---Compromise arrived at between the parties under the Act would be treated as the compromise within the meaning of S. 345, Cr.P.C.
(b) Illegal Dispossession Act (XI of 2005)---
----S. 3(2)---Criminal Procedure Code (V of 1898), Ss. 426 & 345---Suspension of sentence---Compromise---Scope---Joint application for compromise between the appellant and complainant/respondent had been filed duly supported by affidavits which was taken on record---Respondent/complainant had also made a statement to the effect that possession of disputed property had been handed over to him and, therefore, he had no objection to the acquittal of the appellant-accused from all the charges including payment of fine---Statement was also taken on record---Admittedly, both the parties had amicably settled all their differences and had agreed to pass rest of their time in peace, tranquillity and harmony---Non-compoundability of a particular offence under any provision of law was not to be read in isolation but it read in the background of each case and beneficial interpretation to be adapted---When both the parties had earnestly decided to live in peace and tranquility, by ignoring and settling all their past differences, then for the sake of their welfare in general and betterment of socio-economic conditions of the society as a whole, it would be a prime need of the time to accept the compromise and consequently acquit the accused-appellant from the charge---Appellant-accused was convicted under subsection (2) of S. 3 of Illegal Dispossession Act, 2005---High Court observed that although, Illegal Dispossession Act, 2005 was silent as to whether it was compoundable or not, however, the dispute being related to property was presumed to be of civil nature---Room for negotiation, in civil rights, ever remained open, therefore, the legislature in its wisdom had left it open for the courts to decide such issue---Keeping in view the compromise, which had taken place between the parties outside the court, it was not proper to uphold the conviction specially when the complainant himself did not want to pursue his case anymore and had raised no objection to the acquittal of the accused-appellant---Compromise application arrived at between the parties merited consideration, therefore the same was accepted---Consequently, appeal was disposed of.
Ijaz and another v. Mst. Manadia PLD 2016 Pesh. 26; The State v. Irfanullah Qazi 2007 MLD 1269; Abdul Wali (Wali Khan) and 3 others v. Abdul Rashid Arif and 2 others 2013 PCr.LJ 767; Abdul Wahab and 3 others v. Additional Sessions Judge, Okara and 3 others PLD 2012 Lah. 305; Hussain Bux and others v. The State PLD 2003 Kar. 127; Shahid v. The State and another 2017 YLR Note 81 and Ali Raza and another v. The State and another PLD 2013 Lah. 651 rel.
(c) Interpretation of statutes---
----Criminal trial---Two interpretations of a provision---Scope---When the statute or enactment was silent on a subject or where there were two possible interpretations of a provision one favourable to the accused was to be followed.
Syed Khurram Kamal for Appellant.
Mohammad Daud Narejo for Respondent No.2/Complainant.
Zahoor Shah, DPG for the State.
Date of hearing: 12th July, 2018.
JUDGMENT
MUHAMMAD SALEEM JESSAR, J.---Through instant criminal appeal, appellant Akhtar Hussain has assailed Judgment dated 04.05.2017 passed by learned IVth Additional Sessions Judge, Karachi (Malir) in I.D Complaint No.46/2016, whereby the trial Court, after full dressed trial, finding the appellant to be guilty of the offence under section 3(2) of the Illegal Dispossession Act, 2005, convicted him for the said offence and sentenced him to undergo R.I for three (03) years and to pay fine of Rs.30,000/- (Rupees Thirty Thousand only). In case of nonpayment of fine, the appellant was ordered to suffer S.I for three (03) months more. It was further ordered that the appellant shall hand over the vacant and safe possession of Plot No. R-45, Sector 18-A, Block-3, admeasuring 120 sq.yards situated at Quetta Town Cooperative Housing Society, Karachi.
2. On 23.06.2017, while arguing the application under section 426, Cr.P.C. for suspension of the sentence learned counsel for the appellant made a statement to the effect that possession of the property in dispute would be handed over to the complainant/respondent within seven (07) days and requested for suspension of the sentence. The said statement was not opposed by the counsel for respondent/complainant who recorded his No Objection. On the basis of such statement/undertaking the operation of impugned judgment dated 04.05.2017 was suspended and his application under section 426, Cr.P.C. was allowed. Consequently, the appellant was released on bail. After release from the jail, the appellant did not surrender the property in question to the respondent/complainant in terms of his undertaking/statement through his counsel. Therefore, on 17.08.2017 directions were issued to the trial Court for vacation of the case property and handing over of its possession to the complainant/respondent and submitting compliance report. Consequently, the possession of property in question was handed over to the respondent/complainant.
3. A joint application for compromise between the appellant and complainant/respondent has been filed through their respective advocates duly supported by affidavits of the appellant and that of the respondent which is taken on record. The counsel for the respondent/complainant has also made a statement duly signed by the respondent/complainant to the effect that possession of disputed property has been handed over to him and, therefore, he has no objection to the acquittal of the appellant from all the charges including payment of fine. This statement is also taken on record. However, as question of maintainability of compromise application was raised by means of order dated 14.05.2018, therefore, I would like to deal with such legal point in the first instance.
4. Counsel for the appellant submits that though the specific provision has not been embodied in the Illegal Dispossession Act, 2005 to the effect as to whether the offences under the Act ibid are compoundable or non-compoundable, however this being Criminal Complaint, is governed by the Scheme of Criminal Procedure Code of 1898, therefore section 345, Cr.P.C. would be applicable and presumption is that the offence relating to the property under the Illegal Dispossession Act, being of civil nature, is compoundable. In support of his contention, he has referred to the decisions given in the cases of Ijaz and another v. Mst. Manadia (PLD 2016 Peshawar 26) and Suo Motu case Re-The State v. Irfanullah Qazi (2007 MLD 1269). He next submitted that the dispute over property has also been resolved as the possession of the property has been handed over to the respondent/complainant, who is the aggrieved person, therefore. he does not wish to linger on the proceedings, hence, the appeal may be disposed of by way of compromise and the appellant may be acquitted.
5. On the other hand, Mr. Muhammad Daud Narejo, advocate representing the respondent/complainant states that after conviction of the appellant, they have entered into compromise, as a result whereof, the joint statement was made on behalf of the appellant and the complainant before this Court. Resultantly, his sentence was suspended and he was enlarged on bail. In order to maintain law and order situation in the area and to live peacefully by maintaining the peace and tranquility, they have filed a joint application duly supported by their respective affidavits, hence, no loss or injury would be caused to either side in case the compromise arrived at between the parties is accepted by this Court. Learned counsel for the respondent/complainant has also referred to the judgments passed in the cases reported as Abdul Wali (Wali Khan) and 3 others v. Abdul Rashid Arif and 2 others (2013 PCr.LJ 767) and Abdul Wahab and 3 others v. Additional Sessions Judge, Okara and 3 others (PLD 2012 Lah. 305).
6. I have heard the learned counsel for the parties and have gone through the material available on the record as well as case-law relied upon by them at the bar.
7. No doubt the legislature has not provided any specific section/provision in the Illegal Dispossession Act, 2005 for compounding the offences under the Act, however, section 9 of the Act, 2005 provides that unless otherwise provided in the Illegal Dispossession Act, 2005, the provisions contained under the scheme of Criminal Procedure Code, 1898 shall be applicable to all the proceedings under the Act ibid. Therefore, I am of the clear view that the compromise arrived at between the parties under the Act ibid should be treated as the compromise within the meaning of section 345, Cr.P.C. Now the question has arisen that the offences under the Act ibid do not find mention in the table provided in section 345, Cr.P.C., therefore, compromise in respect of such offences could be entertained or not by this Court.
8. It is an admitted fact that both the parties have amicably settled all their differences and have agreed to pass rest of their lives in peace, tranquility and harmony. It may be observed that non-compoundability of a particular offence under any section of the enactment should not be read in isolation but it should be read in the background of each criminal case and beneficial interpretation should be given to it. If any authority is needed, reference may be made to the case of Ijaz and another, supra. In the instant case, when both the parties have earnestly decided to live in peace and tranquility by ignoring and settling all their past differences, then for the sake of their welfare in general and betterment of socio-economic conditions of the society as a whole, it will be prime need of the time to accept the compromise and consequently acquit the appellant from the charges.
9. In cases of Ijaz and another supra, and Irfanullah Qazi, supra, the offences relating to Special Law/ATA etc. were not compoundable, however, on account of compromise arrived at between the parties, the same was recognized by the Honourable Peshawar High Court as well as by this Court. Likewise, in the cases of Abdul Wali and Abdul Wahab, supra, the compromise was effected between the parties during pendency of the cases before trial Court in terms of sections 3/4 of Illegal Dispossession Act, 2005, which was accepted by the trial Court, however, after acquittal of the accused therein, some of the parties had sought review of the order passed by the trial Court and wanted to reopen the case on certain issues but the Honourable Benches of Lahore as well as Peshawar High Courts declined to disturb the findings of the Courts below on account of compromise and thus have recognized the compromise took place between the parties before trial Court.
10. The appellant was convicted under subsection (2) of section 3 of Illegal Dispossession Act, 2005. The legal question is that when the legislature has not specifically defined in its preamble as to whether the said offence should be treated as compoundable or non-compoundable. then the same could be compounded by the parties or not. Although, the Statute viz. The Illegal Dispossession Act, 2005 is silent, whether it is compoundable or non-compoundable, however, the dispute relates to property, thus, the same is presumed to be of civil nature, and in civil rights the room for negotiation ever remains open, therefore, the legislature in its wisdom has left it open for the courts to decide such issue. It is trite of law that when the statute or enactment is silent or where there are two possible interpretations of a provision of law, the one which is favourable to the accused is to be followed. In the instant case, the parties have filed joint applications for compromise, besides the possession of the subject property has also been handed over to the complainant, therefore, in order to maintain peace and tranquility between the parties, propriety of law demands to entertain the compromise application. I am of the considered view that if both the parties i.e the complainant and the appellant/convict, particularly the aggrieved person/victim, have settled their disputes and differences amicably, then such compromise should be accepted by the Court, though under the Statute it has not been specifically defined/clarified as to whether the same is compoundable or non-compoundable. In the present case, keeping in view the compromise, which has taken place between the parties outside the Court, it is not proper to uphold the conviction specially when the complainant himself does not want to pursue his case anymore and has raised no objection to the acquittal of the appellant. In support of this view I am fortified by the following decisions of the Superior Courts.
11. In the case reported as ljaz and another supra, while dealing with the similar situation, it was held by Peshawar High Court as under:
"5. No doubt section 436, P.P.C. is not compoundable and section 345, Cr.P.C. is inapplicable to compound it but equally it is an admitted fact that both the parties have amicably settled down all their differences and have resolved to lead rest of their lives in peace and tranquility.
8. Of course, in letter, section 436, P.P.C. is not compoundable. However, non-compoundability of a section of law should not be read in isolation but it should be read in the background of each criminal case and a beneficial interpretation should be given to it. When the parties in the instant case have earnestly decided to live in peace by forgetting all their differences then it will be a need of the hour to acquit the petitioners in the instant case on the basis of compromise despite the non-compoundability of section 436, P.P.C."
12. A Division Bench of this court, while dealing with this point in the case of Hussain Bux and others v. The State reported in PLD 2003 Karachi 127 (DB), has observed as under:
"At this juncture we would like to refer to another objection of Mr. Ali Azhar Tunio, learned Assistant A. G to the effect that the offence under section 302, P.P.C. is compoundable while the offence under section 149, P.P.C. is not compoundable. Although in Second Schedule to Cr.P.C. it is contained that the offence under section 149, P.P.C. is not compoundable but we are persuaded to agree with the views of Mr. Muhammad Bachal Tunio, learned Addl. A. G, and Mr. Ali Nawaz Ghanghro Advocate, the learned amicus curiae, that offence under section 149, P.P.C., is by way of constructive liability and when the main offence is allowed to be compounded and the persons who have taken specific part in the commission of offence are allowed to compound, then the persons who are convicted on account of being merely members of unlawful assembly are also entitled to the concession of compromise/ compounding/waiver, otherwise it would not be in consonance with the principles of justice, in accordance with the injunctions of Islam as laid down in Holy Qur'an and Sunnah."
13. In another case reported as Shahid v. The State and another (2017 YLR Note 81 [Lahore]) it was held as under:
"Needless to say, compromise even in non-compoundable offences makes a crucial circumstance and a redeeming feature which helps the warring-parties come close to each other and live peacefully onwards. Let non-compoundable nature of the offences under sections 452, 354, P.P.C. not frustrate their noble intentions."
14. The Honourable Lahore Court in the case of Ali Raza and another v. The State and another reported in PLD 2013 Lahore 651 made following observations:
"The offence alleged is certainly non-compoundable but eagerness of the parties to settle their dispute by executing an agreement, in mentioned terms has to be given a sense of respect, so that they may harvest benefit thereof. The complainant and his wife, who are doctors/ medical-officers by profession, hence, educated persons; well understand the ins and outs of the compromise arrived at and they, being, present in person like Mst. Kalsoom Bibi accused have expressly stated that they on account of compromise do not intend to prosecute the accused-petitioners further, if the loss allegedly sustained by the complainant and his wife at the hands of the accused/ petitioners has been made good, to their entire satisfaction, there may be no harm in allowing the instant applications for bail after arrest. Even otherwise, it has always been observed that the compromise even in non-compoundable offences is a redeeming factor, which brings peace, harmony and coherence in the society and it may have far-reaching positive effects, in the lives of warring-parties."
15. The upshot of above discussion is that it would be in the best interest of justice and equity that the compromise application arrived at between the parties merits consideration, therefore, the same is hereby accepted. Consequently, the instant appeal is disposed of. The appellant present on bail is hereby acquitted of the charges. His bail bonds are cancelled and surety furnished by him is hereby discharged.
JK/A-42/Sindh Appeal accepted.
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