Syed IFT1KHAR HUSSAIN SHAH vs Syed SABIR HUSSAIN SHAH and 2 others

1. ' SAIDUZZAMAN SIDDIQUI, J.--The petitioner is seeking leave to appeal against the judgment of a learned Judge in Chambers of Peshawar High Court, Abbottabad Bench, dated 31-10-1994 whereby the criminal revision petition filed by respondents Nos.1 and 2, was accepted and the order of learned Sessions Judge, Abbottabad, dated 4-8-1993 was set side with direction to acquit the accused in the case as and when hearing takes place.

2. ' The facts of the case are that the petitioner lodged a report in Police Station Havalian, wherein he charged respondents Nos.1 and 2 for having inflicted blows on his nose with a knuckle-duster. The motive for the offence was stated to be made family dispute between the parties. The case was accordingly proceeded against the respondents under section 336/34, P.P.C. The respondents applied for pre-arrest bail before Additional Sessions Judge, where they were able to get interim pre-arrest bail on 14-1-1992. When the matter came up for confirmation of the interim bail before the Court, the learned Additional Sessions Judge recorded the statement of the petitioner as follows:-- "On my report a case under section 336, Qisas and Diyat Ordinance read with section 34, P.P.C. Was registered against Zakir Shah and Sabir Shah accused-petitioners vide F.I.R. No, 331, dated 25-12- 1991 at P.S. Havalian. Accused-petitioners are my cousin and there is no previous enmity between us, therefore, we have patched up the matter amicably and I have received Rs,4,000 i.e, Rs,2,000 from each of the accused today in Court. I have got no objection on the confirmation of their bail."

3. ' In view of the above statement of the petitioner, the interim bail granted to respondents Nos.1 and 2 was confirmed. The matter was, thereafter, proceeded before the Extra-Assistant Commissioner-I (EAC-I), Abbottabad. The charge was framed against the respondents under section 336/34, P.P.C.

4. On 9-6-1993. The respondents submitted an application before the E.A.C.-1 for their acquittal on the ground that the matter has been compromised between the parties. This application was rejected by the E.A.C.-1 on 19-12-1992. The above decision of the E.A.C. Was challenged by respondents before the Additional Sessions Judge, Abbottabad, who came to the conclusion that the E.A.C./M.I.C. Had no jurisdiction to take cognizance of the case and therefore directed that the case be transferred to the Court of Sessions Judge, Abbottabad. On transfer of the case, the learned Sessions Judge took cognizance of the case and framed charge against the respondents whereupon the respondents once again moved an application before the Sessions Judge for their acquittal in the case on the ground that the matter stands compounded between the parties as per statement recorded before the Additional Sessions Judge during the course of disposal of pre- arrest bail application. The learned Sessions Judge, however, did not agree with the contention of the respondents and dismissed the application whereupon Criminal Revision Application was filed before the learned Judge in Chambers which was disposed of by the learned Judge as aforesaid.

5. ' The learned counsel for the petitioner in support of this petition contended that the petitioner has accepted a sum of Rs,4,000 from the respondents (respondents Nos.l and 2) only for the purpose of making concession for the grant of pre-arrest bail to them. It is further contended by the learned counsel for the petitioner that the matter was never compromised and as such the learned Judge was not justified in directing the Sessions Judge to acquit the accused in the case. It is also contended by the learned counsel that in any case the learned Judge was not competent to direct the Sessions Judge to acquit the respondents but would only remand the case for disposal in accordance with law.

6. ' It may be true that while accepting revision application, the learned Judge in Chambers should have directed the learned Sessions Judge to dispose of the case in accordance with law but it is submitted before us that the learned Sessions Judge has already acquitted the accused in the case which has not been challenged by the petitioner. Be that as it may, after reading the statement of the petitioner recorded by the learned Additional Session Judge while disposing of the pre-arrest bail application of respondents, we are in no doubt that a sum of Rs,4,000 was received by the petitioner as compensation for settlement of the case and as such it is not a fit case in which leave should be granted. The order of the learned Judge in Chamber is a just and proper order in the circumstances of the case and no case is made out for interference with this order. Petition is, accordingly, dismissed and leave to appeal is refused.