SHAH MUHAMMAD and 5 others vs THE STATE and anothes

ORDER

' Through this revision petition under sections 435/439, Cr.P.C. Order, dated 3-7-2003 passed by the learned Additional Sessions Judge, Alipur, has been challenged by which application moved by the petitioner under section 265-K, Cr.P.C. For his acquittal has been dismissed.

2. The brief facts of 'the case are that the petitioners are facing trial before the learned Additional Sessions Judge, Alipur in case registered against them vide F.I.R. No, 62, dated 12-5-1992 offences under sections 302/452/354-A, 337-A, 148, 149, P.P.C. At Police Station Shaher Sultan, Tehsil Jatoi, District Muzaffargarh on the statement of Mst. Parveen Akhtar. At the time of grant of bail before arrest a compromise was arrived at according to the learned counsel between the parties.

Affidavits were sworn by the legal heirs of the deceased Haider Abbas and ad interim bail before arrest earlier granted to the petitioners was confirmed vide order, dated 7-9-1998 by the learned Additional Sessions Judge. After the submission of the report under section 173, Cr.P.C. An application under section 265-K, Cr.P.C. Was moved by the petitioners. The learned trial Court has not accepted the same on various reasons.

3. Learned counsel for the petitioners contends that once the compromise is effected between the parties, that has to be accepted by the Courts for all intents and purposes and the accused can be acquitted. Relied upon judgment reported as Syed Iftikhar Hussain Shah v. Syed Sabir Hussain Shah (1998 SCMR page 466) in support of his contentions. It is further contended that in the agreement executed between the legal heirs of the deceased and the petitioners at bail stage it was duly mentioned that an amount of Rs,8,00,000 has to be paid by the petitioners out of which Rs,5,00,000 was paid to the legal heirs of the deceased. It is further contended that once the compromise is made the same cannot be revoked.

4. I have heard the learned counsel for the petitioners at length and gone through the impugned order. The learned trial Court has given valid reasons for the rejection of the application of the petitioners on the ground that for the time being there is no proof about payment of Rs,5,00,000 or Rs,8,00,000 to the legal heirs of the deceased as Diyat. I have also noticed that though it is mentioned in the agreement that an amount of Rs,8,00,000 was settled as "Badl-e-Sulh" out of which Rs,5,00,000 were paid to the legal heirs of the deceased yet in the affidavits sworn by the legal heirs of the deceased there is no where mentioned that any such amount has been paid to them. It is necessary before giving effect to the alleged compromise between the parties to see whether all the legal heirs have received their due share but it is nowhere mentioned that what was the share of the deponents of the affidavits sworn in favour of the petitioners at the time of grant of bail before arrest to them and what amount they have already received. There is also no mention if any amount was received by them collectively or individually and their separate statements were also not recorded by the learned Additional Sessions Judge at the time of confirmation of ad interim bail before arrest. Hence the case-law cited by the learned counsel for the petitioners is not applicable to the facts and circumstances of the present case. In the reported case (1998 SCMR page 466) payment of Rs, 4,000 was established . It is also worth-mentioning that under subsection (2) Qf section 345, Cr.P.C. Which is reproduced as under:- "The offences punishable under the sections of the Pakistan Penal Code specified in the first two columns of the table next following may, with the permission of the Court before which any prosecution for such offence is pending, be compounded by the persons mentioned in the third column of that table."

' The offences can only be compounded with the permission of the Court before which any prosecution for such offence is pending and compromise effected between the parties at bail stage cannot be considered to have given legal effect for acquittal of the accused in the main case because it is the Court seized of the trial/prosecution of such offences to satisfy itself into the genuineness and voluntariness of the compromise before granting permission for the same. If the accused/petitioners claim compromise with legal heirs of the deceased, they should be produced before the learned trial Court to satisfy itself into the same. Moreover, the accused cannot claim acquittal in a slipshod manner under section 265-K, Cr.P.C. Merely because of compromise effected between the parties at bail stage as there are also provisions of section 311, P.P.C.

Empowering the Court to convict the offenders in spite of the waiver or compounding of right of Qisas by the legal heirs of the deceased and sentence with imprisonment up to 14 years keeping in view the facts and circumstances of the case.

5. I do not find any illegality or jurisdictional defect in the impugned order which has been passed considering all aspects of the case and this petition is dismissed in limine. It is, however, made clear that any of the observations made in this order will not prejudice the case of any of the parties in further proceedings.

Revision petition dismissed.