PLJ 2022 Cr.C. 179
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 345 & 417--Appeal against acquittal--Compromise at the bail stage--Affidavit--Judgment of acquittal--set aside--During the bail proceedings of one of the respondents--Appellant of this case tendered an affidavit and stated before the Magistrate that he had no objection if accused be admitted to post-arrest bail--On the same date, during remand proceedings of remaining respondents, appellant made a statement before the Magistrate that he had affected compromise with the respondents and he had no objection if the respondent be enlarged on bail or acquitted from this case--Order of trial Court acquitting the respondents on the basis of statements made at bail and remand stage, considering it a valid compromise, is not legally justified--Such a compromise can only be affected with the permission of Court, before which any prosecution for such offence is pending--Such statements cannot assume status of a valid compromise for offences enlisted in sub section (2) of section 345, Cr.P.C. trial Court also fell into error to treat the offence section 452, PPC is compoundable--Judgment of acquittal of respondents passed by the trial Court being patently illegal, and perverse, is not sustainable in the eye of law--Appeal is allowed, and matter is remanded back to the trial Court to proceed further with the trial form the point of distribution of copies to the respondents.
[Pp. 180, 185 & 186] A, B & C
PLD 2016 SC 347; 2005 SCMR 1342; 2004 SCMR 1170;
PLD 2006 SC 53; PLD 2007 SC 447; PLD 1985 SC 11;
2001 YLR 1448; PLD 2012 Sindh 35 ref.
Mr. Farooq Raja, Advocate for Appellant.
Ch. Arshad Iqbal Bhullar, Advocate for Respondents.
Hafiz Asghar Ali, Deputy Prosecutor General.
Date of hearing: 31.5.2021.
PLJ 2022 Cr.C. 179
[Lahore High Court, Lahore]
Present: Ali Zia Bajwa, J.
versus
FAZAL ABBAS and others--Respondents
Crl. A. No. 1054 of 2011, heard on 31.5.2021.
Judgment
This appeal is directed against the order of acquittal passed by learned Magistrate Section 30, Arifwala (hereinafter “trial Court”) dated 16-05-2011 in case FIR No. 143 of 2011 registered under Sections 452, 337-A(i), 148 and 149 of Pakistan Penal Code, 1860 (hereinafter "PPC") got registered by Muhammad Tariq (hereinafter "appellant"), whereby eight accused persons (hereinafter "respondents") had been acquitted by trial Court on the basis of statements of complainant recorded at bail and remand stage.
3. After submission of report under Section 173 Code of Criminal Procedure, 1898 (hereinafter "Cr.P.C.") on 25-04-2011, trial Court distributed copies to the respondents under Section 241-A, Cr.P.C. on the same day and case was fixed for further proceedings for 16.5.2011. On that date, an application under Section 249-A, Cr.P.C. was filed by the respondents, which to the complete astonish of this Court, without issuing notice to the appellant, was accepted by the trial Court while relying upon the statements of the complainant at bail and remand stage. Relevant extract of order of learned trial Court is reproduced hereunder:
“Perusal of the record will show that at bail stage of the accused Ali Kamran and at physical remand of the rest of accused, the complainant/injured has deposed before the Court that he has effected compromise and he got no objection if accused be enlarged on bail or acquitted from this case”
4. Heard. Record perused.
5. Important questions of law arising out of this appeal are:
a. Whether the accused can be acquitted solely relying upon the statement/affidavit tendered at bail stage or on the basis of statement recorded at remand stage, in cases falling under sub-section (2) of Section 345, Cr.P.C.?
b. Whether, a person can be acquitted in non-compoundable offence on the ground of compromise?
6. Before dilating upon the merits of this case, I would like to discuss briefly the relevant law dealing with compounding of offences. Whether any offence punishable under PPC is compoundable or not, is provided in column (6) of Schedule II, Cr.P.C., whereas mode of compounding such offences is provided under Section 345, Cr.P.C. Perusal of Section 345, Cr.P.C. outlines two categories of offences which are compoundable. Sub-section (1) enlists the offences which parties can compound without the intervention or permission of the Court. While sub-section (2) provides a list of offences which can be compounded only with the permission of the Court, before which any prosecution for such offence is pending. Person who can compound such offences are mention in column No. 3 of both these lists i.e. one provided under subsection (1) and second under sub-section (2) of Section 345, Cr.P.C. Perusal of both these lists transpires that offences punishable under any provision of Section 337-A, PPC fall under second category and can be compounded by a person to whom such injury is caused, with the permission of Court, before which any prosecution for such offence is pending.
7. Legislative wisdom behind bifurcation of compoundable offences in two categories is that, offences enlisted under Section 345 (1), Cr.P.C. are generally considered as person specific or not of heinous nature, while offences provided under Section 345(2), Cr.P.C. are considered as offences against the whole society or heinous in nature, hence permission of Court is required to effect such compromise. It is incumbent upon such Court that it should satisfy itself qua the genuineness and validity of compromise and should not pass a stereotype order. Effort should be made to dig out whether the compromise is genuine when in our society menace of possibilities of coercion or pressure, by influential persons to force the down trodden to compound an offence, exists.
8. It is evident from the comprehensive sketch of Section 345, Cr.P.C. that respondents were entitled to compound the offence with the appellant/injured only with the permission of Court before which prosecution was to be pending. This principle is well elaborated by august Supreme Court in Tariq Mehmood’s CASE (PLD 2016 SC 347) in following words:
“6. …in all cases covered by the provisions of subsection (2) of Section 345, Cr.P.C. no compromise entered into by the parties privately can have any legal sanctity or validity vis-à-vis compounding of the relevant offence unless the Court before which the prosecution for the relevant offence is pending grants a formal permission accepting the compromise between the parties and in all such cases if no prosecution is pending before any Court when the compromise is entered into and no permission by the trial Court is granted to compound the offence any compromise privately entered into between the parties cannot be accepted as valid compounding as is declared by subsection (7) of Section 345, Cr.P.C.…”
Similarly, in Muhammad Akram’s Case (2005 SCMR 1342), august Supreme Court had expounded this view in following words:
“Under subsection (2) of Section 345, Cr.P.C. the offences mentioned in the first two columns given in the said section may, with the permission of the Court before whom any prosecution for such offence is pending, be compounded by the persons mentioned in the third column given thereunder. It is an admitted position that compromises were effected during the pendency of petition for bail before arrest, when the prosecution of the offences was not pending before the learned trial Court. Such a compromise cannot be made basis for acquittal of the petitioner as under Section 345(2), Cr.P.C. it is the trial Court which has to satisfy itself and grant permission to compound the offence being tried by it”
9. Word “prosecution” as used in Section 345, Cr.P.C. means a proceedings either by way of indictment or information, in the criminal Courts, in order to put an offender upon his trial. Reliance is placed upon the Aijaz ali and 3 others v. The state and another (2001 YLR 1448). This term was further elaborated by a Division bench of Sindh High Court in Manzoor Ahmad’s Case (PLD 2012 SINDH 35) in following words:
“4. … word "prosecution" as occurring in Article 13 of Constitution would mean initiation or starting of proceedings of criminal nature before a Court of law or a Judicial Tribunal in accordance with the procedure prescribed in the statute which creates offence. Criminal Procedure Code provides that after investigation, Police shall submit a report under Section 173, Cr.P.C. It is the Magistrate who is competent to take cognizance and if after considering the report he decides to take cognizance, he sends up the case to the Court, competent to try. Therefore, initiation of proceedings occurs when the Magistrate decides to take cognizance and sends the matter for trial to the Court competent to try”
Term "prosecution" has also been defined by legal dictionaries as follows:
“A criminal proceeding in which an accused person is tried”
(Black’s law dictionary, Bryan A. Garner, Tenth Edition, published by Thompson Reuters, page1416)
“Prosecution is the institution or commencement of a criminal proceeding the process of exhibiting formal charges against an offender before a legal tribunal, and pursuing them to final judgment on behalf of the state or government or by indictment or information” (Advanced law lexicon, P Ramanatha Aiyar, Fourth Edition, Volume 3, published by LexisNexis Butterworths Wadhwa, Nagpur at p-3886)
Further, in Tariq Mahmood’s case Supra, it was reiterated by the august Supreme Court that compounding of an offence at bail stage cannot be given an effect at trial especially when at the time of trial the compounding has been resiled. Relevant extract is produced hereunder:
“5. In the present case the offence involved is that under Section 302, P.P.C. which falls squarely within the ambit of sub-section (2) of Section 345, Cr.P.C. and, therefore, a compromise arrived at between the parties at the stage of bail, when even the Challan had not been submitted before the trial Court, could not validly have been accepted as a compromise and the trial Court could not have accepted any such compromise when before the trial Court the heirs of the deceased were not willing to abide by the earlier agreement entered into by them with the present appellant …”
10. What will amount to a valid compromise is a question, which may vary from case to case, however, while dealing with compromise in cases provided under Section 345 (2), Cr.P.C., Court should adhere to the following principles:
i. Person effecting such compromise should have locus standi to compound an offence in accordance with Section 345, Cr.P.C.
ii. There should be no element of coercion, duress or deceit to effect such compounding.
iii. Compounding of offence shall be given effect, only with the permission of Court where prosecution of such offence is pending, where case falls under the category of offences enlisted under Section 345(2), Cr.P.C.
iv. Court under Section 345(2), Cr.P.C. should not give effect to such compromise in carefree manner rather should exercise a sound and rational discretion in giving or refusing sanction to such compromise.
v. Once an offence is compounded after fulfilling all the legal requirements, it cannot be reversed because once a compromise always a compromise, unless it is brought on the record that the same was effected through undue influence, coercion or force.
11. This discussion leads to the irresistible conclusion that when statements of complainant were not made by complainant before the Court where prosecution was pending, learned trial Court was not justified to give any credence to the statements of complainant given at bail and remand stage, for offence u/S. 337-A(i), PPC, enlisted under Section 345(2), Cr.P.C. and that too, without issuing any notice to the appellant during trial because trial Court had no occasion and chance to evaluate the credibility, validity, genuineness and voluntariness of alleged compromise entered into between the parties at bail and remand stage.
12. Further, it is also pertinent to mention that unfortunately, the fact of offence u/S. 452, PPC being non-compoundable had also escaped the notice of learned trial Court. It is established law that compromise can only be effected qua the offences which are made compoundable by Schedule II of, Cr.P.C. As Section 452, PPC is not made compoundable, even a valid compromise effected between the parties to extent of allied compoundable offence, cannot be made basis to acquit the accused from such non-compoundable offence, although such compromise can be considered for the purpose of quantum of sentence.
13. As far as prohibition of compromise in non-compoundable offence is concerned, I am enlightened from the decision of august Supreme Court, in Muhammad Rawab’s Case -2004 SCMR 1170, where it was ardently held by the august Court that:
3.… The provisions as contained in Section 345(7), Cr.P.C. have been couched in such a plain and simple language that there is hardly any scope for any interpretation except that a non-compoundable offence cannot be made compoundable by this Court for the simple reason that no amendment, deletion, insertion or addition could be made by this Court and it could only be done by the Legislature as this aspect of the matter falls in its exclusive domain of jurisdiction. The provisions as contained in Section 345, Cr.P.C. cannot be stretched too far by including the non-compoundable offence therein under the garb of humanitarian grounds or any other extraneous considerateon...”
It was further held that:
“3. …It may be noted that tabulation of the offences as made under Section 345, Cr.P.C. being unambiguous remove all doubts, uncertainty and must be taken as complete and comprehensive guide for compounding the offences.”
Same view was reiterated by august Court in Ghulam Farid alias Farida (PLD 2006 SC 53) and Muhammad Akhtar alias Hussain’s Case (PLD 2007 SC 447).
14. Law regarding appeal against acquittal is very much settled that ordinarily appellate Courts do not disturb the order of acquittal but in cases where such order is wholly artificial, shocking, ridiculous and perverse, the reasons thereof are also artificial and ridiculous, against the record or law, Court can reverse the findings of acquittal. Reliance can placed on Jehangir’s Case-2010 SCMR 494 and Ghulam Sikandar’s Case-PLD 1985 SC 11.
15. In Anwars Aif Ullah Khan’s Case (PLD 2016 SC 276), it was emphatically held by august Supreme Court that:
“19. It may be true that this Court is generally slow in interfering with a judgment of acquittal passed by a Court below but at the same time it is equally true that where acquittal of an accused person by a Court below had come about on the basis of considerations which do not commend themselves for approval on the legal plane there such judgment of acquittal cannot be sustained”
(K.Q.B.) Appeal allowed
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