PLJ 2024 Cr.C. (Note) 56
[Lahore High Court, Multan Bench]
Present: Muhammad Amjad Rafiq, J.
MUHAMMAD ASLAM--Petitioner
versus
STATE etc.--Respondents
Crl. Rev. No. 242 of 2022, heard on 10.8.2022.
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 345/430/435/439--Pakistan Penal Code, (XLV of 1860), S. 489-F--Compromise--Acquittal of--Complainant identified by his counsel put appearance before the Court and submitted his affidavit Mark-A wherein owing to compromise with the petitioner he has stated to have forgiven him and expressed no objection on his acquittal from the instant case--Finality of judgment is subject to Chapter XXXII of Cr.P.C which obviously a chapter relates to revisional powers of High Court and Sessions Judge which entails Sections ranging from 435 to 442--Neither the complainant is under the age of 18 years, not idiot or lunatic, therefore, can validly enter into compromise--The offence with which the petitioner has been charged is compoundable as per second schedule of Cr.P.C.--Instant criminal revision is accepted on the basis of compounding of offence and he is acquitted of the charge--Revision accepted. [Para 3 & 5] A, B & C
Kh. Qaisar Butt, Advocate for Petitioner.
Mr. Laeeq-ur-Rehman, ADPP for State.
Mr. Abdul Rehman Zouq, Advocate for Complainant.
Date of hearing: 10.8.2022.
Judgment
Through this criminal revision under Sections 435 & 439, Cr.P.C., petitioner Muhammad Aslam has challenged the vires of judgment dated 27.04.2022 passed by the learned Magistrate Section-30, Chichawatni, District Sahiwal whereby in case FIR No. 63 dated 15.03.2020 registered under Section 489-F, PPC at Police Station Ghaziabad, Chichawatni he was convicted under Section 489-F, PPC and sentenced to undergo simple imprisonment for a period of one year and two months; benefit of Section 382-B, Cr.P.C. was extended to him. In appeal, learned Additional Sessions Judge has upheld the judgment of learned trial. Court and dismissed the appeal of the petitioner vide judgment dated 30.06.2022.
2. Facts as narrated in the FIR (Ex.PB) are that Muhammad Akram, complainant had long standing relations with convict/petitioner Muhammad Aslam; eight months prior to the occurrence, in the presence of witnesses, he borrowed an amount of
Rs. 5,70,000/-from complainant which amount was paid to the petitioner on a promise to return within two months. Upon default, convict/petitioner issued cheque amounting to Rs. 5,70,000/-in favour of the complainant which was dishonoured on its presentation to the concerned bank. Formal charge during trial was framed and he was convicted and sentenced forecited by the learned Magistrate Section-30 as well as learned Additional Sessions Judge, Chichawatni.
3. At the very outset, Muhammad Akram, Complainant identified by his learned counsel put appearance before the Court and submitted his affidavit Mark-A wherein owing to compromise with the petitioner he has stated to have forgiven him and expressed no objection on his acquittal from the instant case.
4. Section 345 of Cr.P.C. talks about two categories of offences for criteria to give effect to composition arrived at between the parties. Some are compoundable without the permission of the Court, others with permission. The table appended to sub-section (1) counts those offences which can be compounded without the permission of Court by the persons mentioned next to column of such offence. Table shows following offences under Sections of PPC in the list:
Ss. 298, 341, 342, 352, 355, 358, 426, 427, 447, 448, 489-F, 490, 491, 492, 497, 498, 500, 501, 502, 504, 506, 508.
Section 489-F, PPC falls in above category and for compromise in such offence, only that person is authorized in whose favour cheque was issued. It is evident that for composition in Section 489-F, PPC, permission of Court is not necessary; therefore, no reasons are required to be record for acquitting the accused on the basis of compromise. This observation has a support of High Court Rules and Orders Volume-III. The relevant part of CHAPTER 1 (Practice in the trial of Criminal Cases) PART H – THE JUDGMENT; (Compounding of offences) Rule 10 is reproduced as under:
10. Acquittal of accused when offence is compounded: The compounding of an offence under Section 345 of the Code of Criminal Procedure, with or without the permission of the Court, has the effect of an acquittal. In such cases, no judgment on acts is needed, but the statement of all the parties concerned must be recorded and in cases where permission of the Court is necessary for compounding the offence the reasons for granting permission should be stated in the order directing the acquittal of the accused.”
Muhammad Akram, complainant has appeared in person who confirms the factum of compromise and his affidavit Mark-A is being treated as his statement, contents whereof has also been admitted by him as correct and true though already sworn in such affidavit too, and there is no need to record reasons for accepting compromise as it is to be given effect without the permission of Court. As per above rule, no judgment on the acts is needed, therefore, it is not required to discuss evidence herein for the purpose of decision of this criminal revision.
5. During argument a question was slightly posed by learned Assistant District Public Prosecutor that conviction and sentence of the petitioner has finally been upheld by the Court of appeal; it has attained finality and after exhausting remedy of appeal there is no scope for revision under the law, therefore, this Court cannot accept compromise in revisional jurisdiction. The question so raised could possibly be answered in the light of Section 430 of Cr.P.C. which deals with finality of judgment; here it is:
“430. Finality of orders on appeal: Judgments and orders passed by an Appellate Court upon appeal shall be final, except in the cases provided for in Section 417 and Chapter XXXII.”
It clearly shows that finality of judgment is subject to chapter XXXII of Cr. P.C. which obviously a chapter relates to revisional powers of High Court and Sessions Judge which entails Sections ranging from 435 to 442. Thus, in revisional jurisdiction Court can check the correctness, legality and propriety of any finding, sentence or order of inferior Courts. Now question whether, in revisional jurisdiction can a Court dilate upon the fact of compromise in order to give effect? it has well been responded through relevant part of Section 345, Cr.P.C. which is reproduced for reference:
“(5-A) A High Court acting in the exercise of its powers of revision under Section 439 and a Court of Session so acting under Section 439-A, may allow any person to compound any offence which he is competent to compound under this section.”
The only fact is left to be seen as to whether the complainant in attendance though authorized to compound is competent as well to enter for such composition. Some checks on competency of a person have also been calculated in Section 345 of Cr.P.C.; relevant part is reproduced:
“(4) When the person who would otherwise be competent to compound an offence under this section is under the age of eighteen years or is an idiot or a lunatic, any person competent to contract on his behalf may with the permission of the Court compound such offence.”
Attending to such provision it is observed that neither the complainant is under the age of 18 years, nor idiot or lunatic, therefore, can validly enter into compromise. The offence with which the petitioner has been charged is compoundable as per second schedule of Cr.P.C.
6. For what has been discussed above, instant criminal revision is accepted on the basis of compounding of offence with the result that the conviction and sentence of the petitioner is set-aside and the effect of such compromise is that he is acquitted of the charge. The petitioner is in custody, he be released forthwith if not involved in any other criminal case. The case property, if any, be disposed of in accordance with law.
(A.A.K.) Revision accepted
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