ZAHIR MUHAMMAD vs MUHAMMAD IQBAL and another
This matter concerns a criminal miscellaneous application filed by a petitioner seeking acquittal based on a compromise reached after his conviction for offences under sections 367 and 304 of the Pakistan Penal Code 1860 had been upheld by the High Court in appeal. The core legal question was whether the High Court, having already decided the criminal appeal, retained jurisdiction to entertain an application for compounding the offence or whether such jurisdiction vested in the trial court. Relying on the interpretation of section 338-E(2) of the Pakistan Penal Code 1860 and the precedent established by the Supreme Court of Pakistan in Nazak Hussain v. The State (PLD 1996 SC 178), the Court held that once an appeal is decided, the trial court remains the appropriate forum to determine all questions relating to the waiver or compounding of an offence. Consequently, the Court returned the application to the petitioner with the direction to move the trial court, establishing the principle that the trial court retains jurisdiction to decide on compromises even post-appeal.
- Does the High Court have jurisdiction to entertain a compromise application after the criminal appeal has been decided?
- Which court is authorized to determine questions relating to the waiver or compounding of an offence after the decision of an appeal?
- Is the trial court empowered to acquit an accused based on a compromise reached after the appellate court has finalized the judgment?
- Section 367, Pakistan Penal Code 1860
- Section 304, Pakistan Penal Code 1860
- Section 338-E, Pakistan Penal Code 1860
- Section 310, Pakistan Penal Code 1860
- Section 345, Code of Criminal Procedure 1898
'Petitioner was charged vide F.I.R. No,295, dated 5-10-1981 under sections 367/304, P.P.C. At Police Station, Tal. He was tried by the learned Sessions Judge, Hangu and was convicted vide his judgment/order, dated 9-2-2004. He filed Criminal Appeal No,95 of 2004 before this Court, but the same was dismissed vide judgment/order, dated 14-4-2004. Now the petitioner has filed Criminal Miscellaneous No,213/04 for acquittal of the petitioner on the basis of compromise.
2. Mr. Munawar Khan, Advocate the learned counsel representing the petitioner argued that under section 338-E(2), P.P.C. The learned trial Court has the jurisdiction to waive or compound the offence even after decision of the appeal by this Court and since the parties have effected compromise, therefore, the learned trial Court was approached for acquittal of petitioner on the basis of compromise. But he was verbally directed to approach this Court, as appeal has been decided by this Court.
3. I have heard Mr. Munawar Khan, Advocate for the petitioner, Mr. Ubaidullah Anwar, Additional Advocate General for the State and perused the record.
4. As per subsection (2) of section 338-E, P.P.C. All the questions 'relating to waiver or compounding of an offence or awarding of punishment under section 310, whether before or after passing of any sentence shall be determined by the trial Court. The sentence of Qisas or other sentence may be waived off or compounded by the appellate Court during the pendency of appeal. Since this Court vide its judgment/order, dated 14-4-2004 has already decided the appeal, therefore, question of waiver cannot be decided by this Court under the above referred section of Law. The said proposition was made very clear by august Supreme Court of Pakistan in Nazak Hussain v. The State PLD 1996 SC 178 while giving guideline for subordinate Courts and Citizens it was held:--- "(iii) Under section 238-E(i), P.P.C. Subject to the provisions of Chapter XLV and section 345 of the Code of Criminal Procedure, all offences under Chapter XLV, P.P.C. Relating to homicide and hurt may be waived or compounded and the provisions of sections 309 and 310, P.P.C. Shall mutatis mutandis, apply to the waiver or compounding of such offences. So, if any offence under Chapter XLV affecting the human body is waived or compounded after the decision by the trial Court or the decision of appeal, if any, an application for permission to waive or compound the offence shall lie before the trial Court which shall determine all questions relating to the waiver or compounding of an offence or awarding of an offence or awarding of punishment under section 310, P.P.C. And if the trial Court is convinced that the waiver of right of qisas or compounding of an offence punishable under Chapter XLV is genuine and in order, it shall acquit the accused."
' Keeping in view the above cited dictum of August Supreme Court of Pakistan this Criminal Miscellaneous No,213 of 2004 is returned to the petitioner for moving the same before the learned trial Court.