MUHAMMAD RAWAB vs THE STATE

' JAVED IQBAL, J.--- This appeal with leave of the Court is directed against the judgment, dated 5- 8-2002 whereby appeal preferred on behalf of appellant has been dismissed.

2. Leave to appeal has been granted by this Court vide order, dated 22-10-2003 which is reproduced hereinbelow for ready reference to appreciate the legal and factual aspects of the case:-- "This petition for leave to appeal calls in question the validity of the judgment, dated 5-8-2002, whereby a learned Judge in Chambers of the Lahore High Court, Rawalpindi Bench, Rawalpindi dismissed the appeal of the petitioner and maintained his conviction and sentence. .

' Brief facts are that Muhammad Rawab, petitioner, alongwith Muhammad Ashraf, Khalid Khan, Zar Khan, Aslam Zar Khan and Faisal were tried by Judge Special Court-II, Anti-Terrorism, Rawalpindi/Islamabad under section 365-A/109, P.P.C. Read with section 7 of the Anti-Terrorism Act, 1997 (hereinafter to be called the Act). Zar Khan accused absconded after getting bail whereas Aslam Zar Khan and Faisal absconded after the occurrence, as such, proclaimations under section 87, Cr.P.C. Were issued against them. They did not appear, hence, they were tried in absentia. The trial Judge, on conclusion of the trial, convicted Muhammad Rawab petitioner, Khalid Khan accused and proclaimed offenders namely Zar Khan and Aslam Zar Khan and Faisal alias Sheikhu under section 365-A/109, P.P.C. Read with section 7 of the Act and sentenced them to life imprisonment and ordered forfeiture of their properties whereas Muhammad Ashraf was acquitted by giving him the benefit of doubt. The petitioner challenged his conviction and sentence before the Lahore High Court, Rawalpindi Bench, Rawalpindi through Criminal Appeal No,279/T of 2002, which was dismissed by a learned Judge in Chambers of the High Court vide his judgment, dated 5-8-2002, impugned herein.

' We have heard the learned counsel for the parties. During pendency of this petition a compromise was submitted alleging therein that the complainant has pardoned the petitioner in the name of Allah Almighty. The compromise was sent to the trial Court to ascertain its genuineness and to determine whether it was voluntarily made by the complainant. The learned Sessions Judge, Rawalpindi has submitted his report stating that the compromise was genuine and voluntary.

During the scrutiny of the compromise, it was noticed that the offences under section 365-A, P.P.C.

Read with section 7(e) of the Act are not compoundable. The question whether the Court can permit the parties to compound the offences which are not mentioned in section 345, Cr.P.C.

Specially when there is a bar under section 345(7) of Cr.P.C. For entertaining a compromise in the offences not mentioned in section 345, Cr.P.C. This being an important question of law of public importance, leave is granted to consider the same. Notice to the Attorney-General for Pakistan and the Advocate-Generals of the Provinces be issued for a date to be fixed by the office in the first week of December, 2003."

3. Heard Dr. Babar Awan, learned Advocate Supreme Court on behalf of appellant and learned Advocate-Generals for the State. The pivotal question which needs determination would be as to whether parties can be allowed to compound the offences which are not compoundable by virtue of the provisions as contemplated in section 345, Cr.P.C. Specially in view of the specific bar as mentioned in subsection (7) of section 345, Cr.P.C. There is no denying the fact that section 365-A, P.P.C. Read with section 7(e) of the Anti-Terrorism Act, 1997 is not compoundable. 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 consideration. The offences committed by the appellant are not of grave and alarming nature but the same are against the society as a whole and cannot be permitted to compound by any individual on any score whatsoever. 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. The judicial consensus seems to be that "The Legislature has laid down in this section the test for determining the classes of offences which concern individuals only as distinguished from those which have reference to the interests of the State and Courts of law cannot go beyond that test and substitute for it one of their own. It is against public policy to compound anon-compoundable keeping in view the state of facts existing on the date of application to compound. No offences shall be compounded except where the provisions of section 345, Cr.P.C. Are satisfied as to all matters mentioned in the section". (Emphasis provided).

4. The above judicial consensus is based on the following authorities:-- ' Dalsukhram Hargovandas v.. Charles DeBretton 28 Born. 326: ' Meenakshi Sundarammal v. Subramania Ayyar AIR 1955 Mad. 369; Akshoy Singh v. Rameshawar Bagdi AIR 1917 Cal. 705; Mt. Rani v. Mt. Jaiwanti AIR 1925 Nag. 395; Crown v. Muhammad Hussain PLD 1950 Lah. 86; Gurunarayan Das and others's case AIR 1948 Pat. 58; Agha Nazarali Sultan Muhammad v. Emperor AIR 1941 Sind 186; Emperor v. Jarnally and others AIR 1925 Lah. 464; Ghulam Rasool v. State 1999 M LD 3085; Muhammad Asif v. State 1991 M LD 1026; Noor Muhammad alias Noora v. State 1992 SCM R 2079; Muhammad Nazir alias Jeera v. State PLD 2001 Lah. 212; Muhammad Anwar v. State 1986 M LD 1111; Nawab-ul-Hassan v. State 2003 SCM R 658 and 'Yousaf Ali v. State 2002 SCM R 1885.

5. In view of what has been discussed hereinabove, the appeal being devoid of merits is dismissed.