Stereo. H C J D A 38.

Judgment Sheet
IN THE LAHORE HIGH COURT AT LAHORE
JUDICIAL DEPARTMENT
Criminal Appeal No. 1054 of 2011
Muhammad Tariq Versus Fazal Abbas & others

JUDGEMENT

Date of hearing 31.05.2021 .

Appellant by Mr. Farooq Raja, Advocate. .

Respondents by Ch. Arshad Iqbal Bhullar, Advocate. .

Hafiz Asghar Ali, Deputy Prosecutor General.

ALI ZIA BAJWA J.: This appeal is directed against the

order of acquittal passed by learned Magistrate Section 30, Arifwala
(hereinafter “trial court”) dated 16-05-2011 in case FIR No. 143 of
2011 registered under sections 452, 337-A(i), 148 and 149 of
Pakistan Penal Code, 1860 (hereinafter „‟PPC‟) got registered by
Muhammad Tariq (hereinafter „appellant‟), whereby eight accused
persons (hereinafter „respondents‟) had been acquitted by trial court
on the basis of statements of complainant recorded at bail and
remand stage.

2. Laconically, the facts necessary for disposal of appeal in hand

are that appellant got registered above-stated criminal case against
eight respondents, on the allegation that they trespassed the house of
one Akhtar Bibi, sister of complainant, and respondent Fazal Abbas
caused an injury to appellant which was declared as shajjah-i-
khafifah punishable under section 337-A(i) PPC. During the bail
proceedings of one of the respondents namely Ali Kamran @ kala,
on 12-04-2011 appellant of this case tendered an affidavit and stated
Crl.A.No.1054-2011 2

before the Magistrate that he had no objection if accused be admitted

to post-arrest bail. On the same date, during remand proceedings of
remaining respondents, appellant made a statement before the
learned Magistrate that he had effected compromise with the
respondents and he had no objection if the respondent be enlarged on
bail or acquitted from this case.

3. After submission of report under section 173 Code of Criminal

Procedure, 1898 (hereinafter „Cr.P.C.‟) on 25-04-2011, trial court
distributed copies to the respondents under section 241-A Cr.P.C on
the same day and case was fixed for further proceedings for 16-05-
2011. On that date, an application under section 249-A Cr.P.C. was
filed by the respondents, which to the complete astonish of this
Court, without issuing notice to the appellant, was accepted by the
trial court while relying upon the statements of the complainant at
bail and remand stage. Relevant extract of order of learned trial court
is reproduced hereunder:

”Perusal of the record will show that at bail stage of the accused Ali
Kamran and at physical remand of the rest of accused, the
complainant/injured has deposed before the court that he has
effected compromise and he got no objection if accused be enlarged
on bail or acquitted from this case”

4. Heard. Record perused.

5. Important questions of law arising out of this appeal are:

a. Whether the accused can be acquitted solely relying upon the

statement/affidavit tendered at bail stage or on the basis of statement
recorded at remand stage, in cases falling under sub-section (2) of
section 345 Cr.P.C?
b. Whether, a person can be acquitted in non-compoundable
offence on the ground of compromise?

6. Before dilating upon the merits of this case, I would like to

discuss briefly the relevant law dealing with compounding of
offences. Whether any offence punishable under PPC is
Crl.A.No.1054-2011 3

compoundable or not, is provided in column (6) of Schedule II

Cr.P.C., whereas mode of compounding such offences is provided
under section 345 Cr.P.C. Perusal of section 345 Cr.P.C outlines two
categories of offences which are compoundable. Sub-section (1)
enlists the offences which parties can compound without the
intervention or permission of the Court. While sub-section (2)
provides a list of offences which can be compounded only with the
permission of the Court, before which any prosecution for such
offence is pending. Person who can compound such offences are
mention in column No.3 of both these lists i.e. one provided under
subsection (1) and second under sub-section (2) of section 345
Cr.P.C. Perusal of both these lists transpires that offences punishable
under any provision of section 337-A PPC fall under second
category and can be compounded by a person to whom such injury is
caused, with the permission of court, before which any prosecution
for such offence is pending.

7. Legislative wisdom behind bifurcation of compoundable

offences in two categories is that, offences enlisted under section 345
(1) Cr.P.C. are generally considered as person specific or not of
heinous nature, while offences provided under section 345(2) Cr.P.C.
are considered as offences against the whole society or heinous in
nature, hence permission of court is required to effect such
compromise. It is incumbent upon such court that it should satisfy
itself qua the genuineness and validity of compromise and should not
pass a stereotype order. Effort should be made to dig out whether the
compromise is genuine when in our society menace of possibilities
of coercion or pressure, by influential persons to force the down
trodden to compound an offence, exists.

8. It is evident from the comprehensive sketch of section 345

Cr.P.C. that respondents were entitled to compound the offence with
the appellant/injured only with the permission of Court before which
Crl.A.No.1054-2011 4

prosecution was to be pending. This principle is well elaborated by

august Supreme Court in TARIQ MEHMOOD’S CASE (PLD 2016
SC 347) in following words:
“6. …in all cases covered by the provisions of subsection (2) of
section 345, Cr.P.C. no compromise entered into by the parties
privately can have any legal sanctity or validity vis-à-vis
compounding of the relevant offence unless the court before which
the prosecution for the relevant offence is pending grants a formal
permission accepting the compromise between the parties and in all
such cases if no prosecution is pending before any court when the
compromise is entered into and no permission by the trial court is
granted to compound the offence any compromise privately entered
into between the parties cannot be accepted as valid compounding
as is declared by subsection (7) of section 345, Cr.P.C…”

Similarly, in MUHAMMAD AKRAM’S CASE (2005 SCMR 1342),

august Supreme Court had expounded this view in following words:

“Under subsection (2) of section 345, Cr.P.C. the offences

mentioned in the first two columns given in the said section may,
with the permission of the Court before whom any prosecution for
such offence is pending, be compounded by the persons mentioned
in the third column given thereunder. It is an admitted position that
compromises were effected during the pendency of petition for bail
before arrest, when the prosecution of the offences was not pending
before the learned trial Court. Such a compromise cannot be made
basis for acquittal of the petitioner as under section 345(2), Cr.P.C.
it is the trial Court which has to satisfy itself and grant permission
to compound the offence being tried by it”

9. Word “prosecution” as used in section 345 Cr.P.C means a

proceedings either by way of indictment or information, in the
criminal Courts, in order to put an offender upon his trial. Reliance is
placed upon the AIJAZ ALI AND 3 OTHERS V. THE STATE AND
ANOTHER (2001 YLR 1448). This term was further elaborated by a
Crl.A.No.1054-2011 5

Division bench of Sindh High Court in MANZOOR AHMAD’S CASE

(P L D 2012 SINDH 35) in following words:
“4. … word "prosecution" as occurring in Article 13 of Constitution
would mean initiation or starting of proceedings of criminal nature
before a Court of law or a Judicial Tribunal in accordance with the
procedure prescribed in the statute which creates offence. Criminal
Procedure Code provides that after investigation, Police shall submit
a report under section 173, Cr.P.C. It is the Magistrate who is
competent to take cognizance and if after considering the report he
decides to take cognizance, he sends up the case to the Court,
competent to try. Therefore, initiation of proceedings occurs when
the Magistrate decides to take cognizance and sends the matter for
trial to the Court competent to try”

Term „prosecution‟ has also been defined by legal dictionaries as

follows:

“A criminal proceeding in which an accused person is tried”

(Black’s law dictionary, Bryan A. Garner, Tenth Edition, published

by Thompson Reuters, page1416)

“Prosecution is the institution or commencement of a

criminal proceeding the process of exhibiting formal charges
against an offender before a legal tribunal, and pursuing
them to final judgment on behalf of the state or government
or by indictment or information” (Advanced law lexicon, P
Ramanatha Aiyar, Fourth Edition, Volume 3, published by
LexisNexis Butterworths Wadhwa, Nagpur at p-3886)

Further, in TARIQ MAHMOOD’S CASE supra, it was reiterated by

the august Supreme Court that compounding of an offence at bail
stage cannot be given an effect at trial especially when at the time of
trial the compounding has been resiled. Relevant extract is produced
hereunder:

“5. In the present case the offence involved is that under section 302,
P.P.C. which falls squarely within the ambit of sub-section (2) of
section 345, Cr.P.C. and, therefore, a compromise arrived at between
Crl.A.No.1054-2011 6

the parties at the stage of bail, when even the Challan had not been
submitted before the trial court, could not validly have been accepted
as a compromise and the trial court could not have accepted any such
compromise when before the trial court the heirs of the deceased were
not willing to abide by the earlier agreement entered into by them with
the present appellant…”

10. What will amount to a valid compromise is a question, which

may vary from case to case, however, while dealing with
compromise in cases provided under section 345 (2) Cr.P.C., court
should adhere to the following principles:
i. Person effecting such compromise should have locus standi to
compound an offence in accordance with section 345 Cr.P.C.

ii. There should be no element of coercion, duress or deceit to

effect such compounding.

iii. Compounding of offence shall be given effect, only with the

permission of court where prosecution of such offence is pending,
where case falls under the category of offences enlisted under section
345(2) Cr.P.C.

iv. Court under section 345(2) Cr.P.C. should not give effect to
such compromise in carefree manner rather should exercise a sound
and rational discretion in giving or refusing sanction to such
compromise.
v. Once an offence is compounded after fulfilling all the legal
requirements, it cannot be reversed because once a compromise
always a compromise, unless it is brought on the record that the
same was effected through undue influence, coercion or force.

11. This discussion leads to the irresistible conclusion that when

statements of complainant were not made by complainant before the
court where prosecution was pending, learned trial court was not
justified to give any credence to the statements of complainant given
at bail and remand stage, for offence u/s 337-A(i) PPC, enlisted
under section 345(2) Cr.P.C. and that too, without issuing any notice
Crl.A.No.1054-2011 7

to the appellant during trial because trial court had no occasion and
chance to evaluate the credibility, validity, genuineness and
voluntariness of alleged compromise entered into between the parties
at bail and remand stage.

12. Further, it is also pertinent to mention that unfortunately, the

fact of offence u/s 452 PPC being non-compoundable had also
escaped the notice of learned trial court. It is established law that
compromise can only be effected qua the offences which are made
compoundable by Schedule II of Cr.P.C. As section 452 PPC is not
made compoundable, even a valid compromise effected between the
parties to extent of allied compoundable offence, cannot be made
basis to acquit the accused from such non-compoundable offence,
although such compromise can be considered for the purpose of
quantum of sentence.

13. As far as prohibition of compromise in non-compoundable

offence is concerned, I am enlightened from the decision of august
Supreme Court, in MUHAMMAD RAWAB’S CASE-2004 SCMR
1170, where it was ardently held by the august Court that:
3. … 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...”
It was further held that:
“3. …It may be noted that tabulation of the offences as made
under section 345, Cr.P.C. being unambiguous remove all
Crl.A.No.1054-2011 8

doubts, uncertainty and must be taken as complete and

comprehensive guide for compounding the offences.”

Same view was reiterated by august Court in GHULAM FARID

ALIAS FARIDA (PLD 2006 SC 53) and MUHAMMAD AKHTAR
ALIAS HUSSAIN’S CASE (PLD 2007 SC 447).

14. Law regarding appeal against acquittal is very much settled

that ordinarily appellate Courts do not disturb the order of acquittal
but in cases where such order is wholly artificial, shocking,
ridiculous and perverse, the reasons thereof are also artificial and
ridiculous, against the record or law, Court can reverse the findings
of acquittal. Reliance can placed on JEHANGIR’S CASE-2010
SCMR 494 and GHULAM SIKANDAR’S CASE-PLD 1985 SC 11.

15. In ANWAR SAIF ULLAH KHAN’S CASE (PLD 2016 SC

276), it was emphatically held by august Supreme Court that:

“19. It may be true that this Court is generally slow in

interfering with a judgment of acquittal passed by a court below but
at the same time it is equally true that where acquittal of an accused
person by a court below had come about on the basis of
considerations which do not commend themselves for approval on
the legal plane there such judgment of acquittal cannot be
sustained”

16. Hence, order of trial court acquitting the respondents on the

basis of statements made at bail and remand stage, considering it a
valid compromise, is not legally justified. As discussed above, it is
unequivocally required by section 345 Cr.P.C that such a
compromise can only be effected with the permission of court,
before which any prosecution for such offence is pending. But
during bail and remand stage, prosecution of this case was not
pending before the learned Magistrate when such statements were
 Crl.A.No.1054-2011 9

recorded, hence such statements cannot assume status of a valid

compromise for offences enlisted in sub section(2) of section 345
Cr.P.C. learned trial court also fell into error to treat the offence
section 452 PPC as compoundable.

17. The upshot of above discussion is that judgment of acquittal of

respondents passed by the learned trial court being patently illegal,
and perverse, is not sustainable in the eye of law. Therefore, this
appeal is allowed, impugned judgment is set aside and matter is
remanded back to the learned trial court to proceed further with the
trial form the point of distribution of copies to the respondents u/s
241-A Cr.P.C and to conclude the trial in accordance with the law
expeditiously.

(Ali Zia Bajwa)

Judge

Approved for reporting.

Judge
*M.Fayyaz*