ARSHAD KHAN Versus MUHAMMAD SULEMAN

ABDUL HAMEED BALOCH, J .---The petitioners filed the instant Criminal Revision Petition against the orders dated 20.05.2019 and 13.05.2019 (the "impugned orders") respectively passed by the learned Additional Sessions Judge-V, Quetta (the "trial Court") with the following prayers:

"It is, therefore, respectfully prayed that keeping in view the submissions made hereinabove, the impugned orders dated 20.05.2019 and 13.05.2019 passed by the learned respondent No.2 may kindly be set aside to the extent of directions made to petitioners to either deposit amount of Diyat for minors amounting Rs.1370500/- or submit surety/security bond for a period of five years equal to diyat amount, being gazetted officer in a Government department OR in alternate to set aside both the impugned orders in entirety and sent the petitioners to face criminal trial with direction to the learned respondent No.2 to decide the case on its own merits, in the interest of safe administration of criminal justice."

2. The relevant facts for disposal of the instant petition are that the complainant namely Muhammad Suleman lodged an FIR No.97/2018 with Police Station Brewery Quetta against the petitioners for committing murder of his daughter. After completion of investigation challan was submitted before the trial court, whereby the charge was framed and read over to the petitioners, to which they pleaded not guilty and claimed trial. The prosecution produced PW-1/complainant before the trial court, meanwhile the parties moved an application under section 345, Cr.P.C. along with compromise deed and stated that they have amicably settled the matter outside the court. The father and mother of deceased appeared before the trial court as CW-1 and CW-2 and while confirming the contents of the compromise deed. stated that they have pardoned the accused/petitioners in the name of Al-mighty Allah and have waived their right of Qisas. Both the legal heirs of deceased stated that the deceased Abida was having two children from her ex-husband, namely Mah Noor, a girl aged about 12 years and Muzamil a boy aged about 11 years, however they don't know whereabouts of their grandchildren.

That on 18.12.2018 a letter purportedly written by the son of deceased namely Muzaml received to the trial court, wherein he claimed that the PW-1 Suleman being his and his sister's maternal grandfather has patched up the matter with accused party and received Rs.50,00,000/- from accused party in lieu of compromise. He requested that he may be compensated being the legal heirs of deceased Mst. Abida Bibi, consequently the investigating officer and complainant was called, who deposed that they don't know the whereabouts of the children of deceased. The trial court had kept the case adjourned for almost six months but the children of deceased did not appear and finally accepted the compromise vide impugned orders, whereby in respect of diyat amount of minors, the accused persons were directed to either deposit amount of diyat for minors amounting to Rs.1370500/- or to submit surety/security bond for a period of five years equal to diyat amount, being a gazetted officer in a Government department, to which the applicants submitted security bond of a gazetted officer for a period of five years. The petitioners being aggrieved of the impugned orders in respect of diyat amount filed the instant petition with the prayers as mentioned hereinabove.

3. Learned counsel for the petitioners contended that the impugned orders to the extent of diyat amount/surety bond/security bond of a gazetted officer are not justified. The legal heirs (minor legal heirs) did not approach the court through their guardian nor their whereabouts are known.

4. Heard the learned counsel for the parties and have perused the record with their assistance. Perusal of record reveals that the portioners were booked in case FIR. No.97/2018, whereas during trial the parties have compromised the matter with each other and filed an application under section 345, Cr.P.C. along with compromise deed and affidavits of the legal heirs of the deceased. Meanwhile on 18.12.2018 a letter professedly written by the son of the deceased received to the trial court. It would be appropriate to reproduce the same as under:

5. On receipt of said letter, the trial court on 28.12.2018 issued notice to the complainant but he did not appear as such on 13.02.2019 a bailable warrant of arrest of the complainant was issued. On 17.04.2019 the complainant appeared and filed an application for cancellation of his warrant. On 07.11.2018 the parties along with their counsel appeared before the trial court and the trial court recorded the statement of complainant/father of deceased as CW-1 and statement of mother of deceased as CW-2, who in their deposition also narrated the names and age of the minors. On 13.05.2019 the trial court passed the following order:

"Called. The all accused persons along their counsel are present. The learned D.D.P.P. Mr. Muhammad Abbas Zehri in attendance. The complainant in person also in attendance. Today the minors namely Muzamal and Mah Noor are not present. The complainant being grandfather of minors, once again stated that he has no knowledge about the whereabouts of said minors. Arguments heard. The compromise effected between the parties is allowed and the accused persons are directed to submit surety/security in lieu of minors diyat amount i.e. for son of deceased namely Muzamal Rs. 913660/- plus minor girl namely Mah Noor Rs. 456,830/- being more than 16 grade of employee for the period of 05 years or to deposit total diyat amount Rs.1370,500/- (thirteen lacs, seventy thousand and five hundred) before or by next date of hearing. To come up on 20.05.2019 for final order and deposition of diyat amount or in lieu of that surety for five years, which detailed given herein above."

6. Thereafter vide order dated 20.05.2019 the trial court acquitted the accused/petitioners, relevant para thereof is reproduced as under:

8. Whereas, in respect of diyat amount of minors, the accused persons were directed to either deposit amount of diyat for minors amounting Rs.1370500/= (Thirteen lacs seventy thousand five hundred only) or submit surety/security bond for a period of five years equal to diyat amount, being a gazetted officer in a Government department. To which the accused/applicants submitted security bond of a gazetted officer for a period of five years."

7. The record depicts that the legal heirs of deceased submitted the compromise deed voluntarily. The complaint/father of deceased and mother of deceased appeared before the trial court and recorded their statement as CW-1 and CW-2 in presence of petitioners and their counsel, wherein they categorically narrated the names of minor legal heirs of deceased and on the basis of their statements the trial court passed the order dated 13.05.2020, directing the accused to submit surety/security in lieu of diyat amount of minors or to deposit total diyat amount i.e. Rs. 1,370,500/-. The petitioners and his counsel had not objected the diyat amount, whereupon finally the trial court acquitted the petitioner through final order. Under such circumstances the principle of estoppel under Article 114 of the Qanun-e-Shahadat Order, 1984 comes into play, which being necessary is reproduced as under:

"114. Estoppel. When one person has by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing."

8. Now adverting to the compromise effected between the parties voluntarily, the question arises can a party resile from it. The record depicts that the complainant and mother of deceased appeared before the trial court and recorded their statements as CW-1 and CW-2 in presence of the petitioners and their counsel and stated that they have compromised the matter with each other. The petitioners neither raised objection before the trial court nor filed any appeal against the orders of the trial court before this court. The compromise was effected with the permission of the court thereafter the trial court acquitted the accused, admittedly the compromise attained finality. The accused/petitioners have no right to detract from the compromise. Once the compromise effected the accused or complainant are not allowed to resile from the same. Reliance is placed on the case of Emperor v. Jiwan Singh AIR 1930 Allahabad 408, wherein it has been held as under:-

"I am confirmed in my view of the law in this matter by an overwhelming number of authorities in the other High Courts of India. They are unanimous that a compromise once effected cannot be withdrawn: See Kusum Bewa v. Bechu Bewa (1): Mahomed Ismail v. Faizuddi (2): Mahomed Kanni Rowther v. Inayathullah Sahib (3): Murray v. Queen Empress (4); Kumaraswami Chetty v. Kuppuswami Chetty (5): Ram Rup Pal v. Mata Din (6)."

In this regard reliance is also placed on the case of Dharichhan Singh and others v. Emperor AIR 1939 Patna 141, whereby it has been observed as under:

"If the learned Magistrate had known that in law a composition once arrived at between the parties is complete as soon as it is made, and that it has the effect of acquittal even though one of the parties later on resiles from the compromise, he would not have passed the order of 26th May. The case law on this point is reviewed in 33 CLJ 226, where the leading Calcutta and Madras cases on the point have been considered and it was held in circumstances such as the present that the Magistrate was in duty bound to order an acquittal on the filing of the compromise petition signed by both parties in Court for an offence for which no leave of the Court was required, and the complainant cannot by a subsequent withdrawal of the petition before any order is passed on it, insist upon the case being proceeded with."

9. The learned counsel for the petitioner contended that if the court set aside the order to the extent of submission of surety/security and exclude the minors from the legal heirs, then has no objection in respect of compromise. The law did not allow the pick and choose in the same order/document, nor the portion which favour would be accepted and the portion which does not favour would be rejected. The court cannot exclude the legal heirs of a deceased from their shares in diyat amount, rather the minor orphan needs more care, cannot be deprived from their rights. It is unfortunate the petitioners were present when the CW-1 and CW-2 recorded their statements and admitted that the deceased have two minor children from her first husband. Since the petitioners were acquitted on the basis of compromise, then challenging the share of minors by them is not tenable.

10. The trial court on the basis of order dated 24.05.2020 acquitted the accused/petitioners. The petitioners through instant petition also assailed the interim order dated 13.05.2020 as well as final order. It is principle of merger that the interim order would merge into final order.

11. Now adverting to the maintainability of the revision petition under sections 435, 439, P.P.C., against the order/judgment of acquittal, it is necessary to reproduce subsection (5) of section 439, Cr.P.C. as under:

"(5) Where under this code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed."

12. The superior court in a number of cases and preponderance of view has been set that a revision is not maintainable against the order of acquittal, however remedy of filing appeal under section 417(2), Cr.P.C. is available. Reference may be made to case of Abdul Majeed v. Messrs H. Ghulam Muhammad and Brothers Ltd. 1995 PCr.LJ 1369 and Muhammad Bashir v. Fazal Hussain 2002 PCr.LJ 513. Thus, it become crystal clear that no revision is competent before this court. The petitioners had been acquitted of the charge on the basis of compromise by the learned trial court. The remedy of appeal was available to the petitioners/accused. It would not be irrelevant to reproduce section 417, Cr.P.C. as under:

"417. Appeal in case of acquittal. (1) Subject to the provision of subsection (4), the Provincial Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court.

(2) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf grants special leave to appeal from the order of acquittal the complainant may present such an appeal to the High Court.

(3) No application under subsection (2) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order.

(4) If, in any case, the application under sub section (2) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub section (1)."

In view of what has been stated and discussed hereinabove, the revision petition being not maintainable is dismissed accordingly.

JK/90/Bal. Revision dismissed.