Compromise with absconders

P L D 2012 Sindh 35

Before Shahid Anwar Bajwa and Muhammad Ali Mazhar, JJ

MANZOOR AHMED and another---Applicants

Versus

2ND ADDITIONAL SESSIONS JUDGE, GHOTKI and another---Respondents

Criminal Revision Application No.D-84 of 2010, decided on 21st September, 2011.

(a) Criminal Procedure Code (V of 1898)---

----S. 345(2)---Penal Code (XLV of 1860), Ss.302/147/148/149---Qatl-e-amd---Compounding of offence---Scope---Trial Court vide impugned order had granted permission to legal heirs of the deceased to compound the offence with the accused facing the trial and refused the same regarding the four co-accused on the ground of their being absconders---Contention of prosecution was that under S.345(2), Cr.P.C. compounding of offence could take place only when prosecution of such offence was pending and since the prosecution was not pending in respect of the four absconders, no compromise with them could be made---Held, criminal proceedings stood initiated the moment cognizance was taken by the Magistrate and, the matter was sent to the court competent to try the offence---Legal heirs of the deceased, therefore, could compound the offence even against the absconders---Spirit behind S. 345(2), Cr.P.C. is that of "Affwo" and "Derguzar"---Under Islamic Law there is no provision that in a case of compoundable offence the accused can be forgiven only when he agrees to being forgiven---Plea of prosecution that unless the absconders appear before the court offence could not be compounded was not correct---Legal heirs of the deceased in their application had specifically stated that they were seeking permission for compromise with the present accusedas well as the absconding accused---Trial Court, thus, could not disallow the application against the absconders---Impugned order was consequently set aside and all the accused persons were acquitted under S.345(6), Cr.P.C. in the case---Revision petition was allowed accordingly.

Muhammad Nawaz v. the State 1998 MLD 1; Muhammad Irshad alias Shada v. The State 1997 SCMR 951; Azizullah and others v. Addl. Sessions Judge, Mora Criminal Revision Application No.69 of 2010; Muhammad Arshad alias Pappu v. Addl. Sessions Judge, Lahore and 3 others PLD 2003 SC 547; Ghulam Farid alias Farida v. The State PLD 2006 SC 53; Ismail Abdul Rahman v. Muhammad Sadiq and 3 others PLD 1990 Kar. 286 and Wharton's Law Lexicon by A,.S.Oppe, 14th Edn. (1976 Reprint) p.810 ref.

Wali Muhammad and 7 others v. The State and 2 others 2008 MLD 1123 dissented from.

(b) Words and phrases---

--"Prosecution"-Connotation.

Ismail Abdul Rahman v. Muhammad Sadiq and 3 others PLD 1990 Kar. 286 ref.

(c) Constitution of Pakistan---

----Art. 13-"Prosecution"-Meaning---Word "Prosecution" as occurring in Art.13 of the 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.

Anwar Ali Lohar for Applicants.

Shyam Lal Ladhani, APG for Respondents.

Date of hearing: 21st September, 2011.

ORDER

SHAHID ANWAR BAJWA, J.---F.I.R. No. 01/2001 was recorded at P.S. Yaro Lund on 28-01-2001 for an offence under sections 302, 147, 148, 149, PPC. Challan was submitted. An application under Section 345(2), Cr.P.C. was filed and in the application, it was prayed as under:--

"It is prayed by the legal heirs of deceased Mohammad Ameen s/o Noor Mohammad and Fahmida d/o Soobo Pitafi shown below that this honourable Court may be pleased to grant permission for compromise with present accused Zahid sbo Razi and (absconders accused) namely each Manzoor, Munir, Zahid, Rahib and Soobo, all sons of Razi Pitafi, r/o Village Khuhi Khengi near Ashrafabad, Taluka Mirpur Mathelo, in the above case/crime on the consideration of following grounds".

2. Permission to compromise was granted, vide order dated 24-4-2010 in the following words:--

"The offence with which accused are charged is compoundable and could be compounded with the permission of Court in terms of section 345 (2), Cr.P.C. Learned I/C DDPP for the State has raised no objection. Accordingly, in view of the grounds, urged, this application under Section 345 (2), Cr.P.O is allowed and parties are permitted to compound the offence falling under sections 302, 147, 148, 149, P.P.C.".

3. Thereafter, on the same day, the following order was passed:--

"Since permission to compound the offence was already granted, therefore, this application is allowed, compromise accepted and in result accused namely Zahid son of Razi Pitafi is acquitted u/s 345(6), Cr.P.C. from the charge falling under sections 302, 147, 148, 149, P.P.C.. Accused is present on bail, his bail bond cancelled and surety discharged.

The case against the above named absconding accused be kept on dormant file till they are arrested and produced before this Court".

4. Thus, so far as accused Zahid is concerned, compounding and the compromise was allowed and as regard absconding accused Rahib, Sobho, Manzoor and Munir, the case was ordered to be kept on dormant file.

5. Learned counsel for the applicants relied upon Mohammad Nawaz v. the State, 1998 MLD 1, Mohammad Irshad alias Shada v. The State, 1997 SCMR 951 and order dated 27-09-2010 by a Single Judge of this Court in Criminal Revision Application No. 69 of 2010, Azizullah and others v. Additional Sessions Judge, Moro.

6. Learned APG referred to Section 345(2),. Cr.P.C. and submitted that under this 'Section, compounding can take place only when prosecution of such offence is pending and since there are four absconders in respect of them, there is no pending prosecution and, therefore, no compounding or compromise could be made. He relied upon Wali Mohammad and 7 others v. The State and 2 others, 2008 MLD 1123. He further submitted that compromise is in the nature of a contract and since absconding accused have not surrendered, they cannot enter into such contract. He relied upon Mohammad Arshad alias Pappu v. Additional Sessions Judge, Lahore and 3 others, PLD 2003 SC 547.

7. We have considered the submissions made by the learned counsel and have also gone through the record.

8. Learned APG relied upon the provisions contained in section 345(2), Cr.P.C. and the provisions is to the following effect:

"(2) 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 third column of that table".

9. His contention was that permission to compound can only be given when prosecution for such an offence is pending and since four persons have not surrendered themselves before the Court, it cannot be said that in respect of them "prosecution for such offence is pending". He relied upon Wali Mohammad's case (supra). Facts of the case were that an F.I.R. in respect of a crime under sections 302, 307, 149, P.P.C. was lodged and somehow accused persons were declared proclaimed offenders and their trial was separated. Three of the persons standing trial were convicted. They filed appeal. Appeal of two accused persons was allowed while that of one accused was dismissed. Legal heirs of the deceased filed an application under Section 345(6), Cr.P.C for acquittal of two proclaimed offenders on the basis of compromise. This application was dismissed by the trial Court and this order was challenged in Criminal Revision. A learned Single Judge of Lahore High Court first referred to a Judgment of the Supreme Court, reported as Ghulam Farid alias Farida v. the State, PLD 2006 SC 53 and then observed as under:-

"The above quoted observation of august Supreme Court would show that there is no cavil to the proposition that Court at all levels without any legal impediment while deciding case on merits in regular proceedings can consider the compromise of an offender with the victim or legal heirs but in the present case no regular proceedings are pending before any Court of law as case of both the absconding accused was separated under section 512, Cr.P.C. By any stretch of imagination it cannot be presumed that any proceedings before any Court of law are pending, which could culminate into a compromise between the offender and the heirs of deceased or victim".

10. Thereafter, it observed as under:

"To cater the situation like the present one, the legislature in its wisdom had enacted the provisions of section 498, Cr.P.C. to save an accused from undue and uncalled for humiliation. If the compromise in cases like instant one is allowed, that would frustrate the beneficial purpose of enactment. The Court is to satisfy itself that the compromise arrived at between the parties is not tainted with pressure, coercion, undue influence, blackmail, extortion or similar other infirmities and only such compromise would qualify for acceptance which is above any blemish either mild or strong".

11. In Nazim Hussain's case (supra) honourable Supreme Court has observed that application for compromise is to be made before the trial Court, who shall determine all questions relating to compounding of offence. On the other hand, learned counsel for the applicants relied upon Mohammad Nawaz's case (supra). In that case, there is no discussion in respect of Section 345(2), Cr.P.C. and it has been, inter alia observed that the legal heirs had forgiven both the petitioners/appellants as well as absconding accused persons and since the compromise was voluntarily and genuine, it was allowed. This was followed by a Single Bench of this Court in Azizullah's case (supra)

12. Provisions of subsection (2) of section 345, Cr.P.C. have been reproduced above and the provisions in simple words means that with the permission of the' Court when prosecution for any such offence is pending (such offences being offences which are declared by law to be compoundable and list of such offences is provided in the subsection itself) it can be compounded by the persons mentioned against each column. Contention of APG was that since absconders were not before the Court at the given time, it cannot be said that the prosecution against him is pending and he relied upon Wali Mohammad's case (supra). What appears to have been held in Wali Mohammad's case is that if a person is absconder, it cannot be presumed that any proceedings against him are pending: Second reason given by the learned Judge is that if a compromise in case of absconder is allowed, it would frustrate beneficial provisions of the law.

13. Word "prosecution" came up for detailed examination before a Divisional Bench of this Court in Ismail Abdul Rahman v. Mohammad Sadiq and 3 others, PLD 1990 Karachi 286 and it was observed as under:

'Prosecution' or 'prosecute' in the special sense of law means, according to Webster 's Dictionary: "(a) to follow, pursue, to follow to the end, to seek to obtain; to enforce, or the like, by legal process, to prosecute a right or a claim in a Court of law; (b): to pursue to institute legal proceedings for redress or punishment; to proceed against judicially; esp., to accuse of some crime or breach of law, or to pursue for redress or punishment of a crime or violation of law, in due legal form - before a legal tribunal; the carrying on of a judicial proceeding on behalf of a complaining party, the institution and continuance of a criminal suit involving the process of exhibiting formal charges against an offender before a legal tribunal and pursuing them to find judgment on behalf of the State or Government'.

According to Wharton's Law Lexicon by A.S. Oppe, 14th edition (1976 Reprint) page 810, 'prosecution' means "a proceeding either by way of indictment or information, in the Criminal Courts, in order to put an offender upon his trial".

The word 'prosecution' occurring in Article 13 would mean an 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 the offences and regulates the procedure.

14. Thus, it has already been held by a Division Bench of this Court that 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 0the 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. What is sent to the Court competent to try is the offence and not the offender. Therefore, the proceedings are initiated in law when the Magistrate takes cognizance and sends the matter to the trial Court even against those who are absconders. The trial Court is then required to separate the trial of absconders and keep their case on dormant file. Nevertheless, proceedings stood initiated when cognizance is taken and the case is sent for trial. Similarly, in case of direct complaint when after recording statement of complainant under section 200, Cr.P.C, whether with or without recording statement of any witness, when the Court orders that notice or summons be issued, proceedings stand initiated. We are, therefore, not able to subscribe to the view of Single Judge of Lahore High Court in Wall Mohammad's case (supra). Second reason given in the reported case is self defeating. Very purpose of the application under section 345(2), Cr.P.C. is (Affwo) and (Derguzar). We have not been able to find any provision in law that a person must be arrested and produced before the Court and only then he can be forgiven by those competent to forgive and such benefit be extended to him and not otherwise.

15. Result of the discussion is that it is held that criminal proceedings stand initiated moment the cognizance is taken by the Magistrate competent to take cognizance and matter is sent to the Court competent to try the offence. It is available to legal heirs to compound the offence even against those who are absconders.

16. We are left with the contention of APG that a compromise is in the nature of contract and, therefore, it cannot be deemed to have been executed without the absconders being present in Court. He relied upon Mohammad Arshad's case (supra). Mohammad Arshad was sentenced to death for offence under section 302, P.P.C. Death sentence was confirmed by the High Court and appeal was rejected by the Supreme Court. Consequently, black warrants were issued. Before the warrants could be executed, an application for compounding was filed by wife of the deceased. Such compromise was resisted by father of the deceased and his contention was that two children of the deceased were minors and, therefore, no compromise could be affected by their mother. It was further contended that offence was committed before amendments were brought about in P.P.C. in 1990. Application for compromise was dismissed and Revision was also dismissed by the High Court. Supreme Court held that such compromise would not be applicable to the convictions awarded prior to the amendments made in law in 1990. It further observed that since the deceased was not convicted for Qatl-e-amd by way of Qisas, the widow was not competent to make such compromise. It also noticed that parents of the deceased had denied any such compromise and it was in this context that it was observed that only valid compromise is executed between the parties voluntarily and with free consent. Case law is clearly distinguishable and does not deal with the issue in the present case.

17. Spirit line behind Section 345(2), Cr.P.C. is, as stated above, that of (Affwo) and (Derguzar). Under the Islamic Law, there is no provision that in any case of a compoundable offence, the accused person can be forgiven only and only when he agrees to being forgiven. An example would be when the Holy Prophet (peace be upon him) visited Taif and the street urchins of Taif, upon instigations by the notables of Taif, pelted Holy Prophet with stones and according to historians, so much so that the blood of the Holy Prophet dropped into his shoes, the Holy Prophet instead of praying' for God's wrath angers upon residents of Taif, forgave and prayed for their forgiveness. Therefore, contention of APG that unless absconders appear before the Court, offence cannot be compounded, does not appear to be correct.

18. In the present case, in the application under section 345(2), P.P.C., reproduced in para. No. 8 above, legal heirs have specifically stated that they were seeking permission for compromise with the present accused as well as absconding accused and it was not available to the Court below not to allow this application against the absconding accused.

19. Consequently, this Criminal Revision Application is allowed. Impugned order dated 22-4-2010 is set aside and besides accused in custody Zahid, other accused person namely Manzoor, Munir, Rahib and Sobho, all sons of Razi Pitafi are acquitted under section 345(6), Cr.P.C. from the charge falling under sections 302, 147, 148, 149, P.P.C. Bail bond of Zahid and the surety are discharged and the proclamation issued against the proclaimed offenders is set aside and recalled.

N.H.Q./M-164/K Revision petition accepted.