ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Criminal Appeal No. 27 of 2024
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Date Order with signature of Judge
1. For orders on M.A. No.4148/2024.
2. For orders on M.A. No.4149/2024.
30.08.2024.
Mr. Habibullah G. Ghouri, Advocate, along with appellant (on bail).
Mr. Ali Anwar Kandhro, Additional Prosecutor General.
Respondent No.1/complainant Muhammad Usman Brohi present in person.
O R D E R
Khadim Hussain Soomro, J.- Through instant Criminal Appeal, the appellant has assailed the judgment dated 04.05.2024 passed by learned 3rd Additional Sessions Judge, Shikarpur, in Cr. Complaint No.69/2018 (Re: Muhammad Usman Brohi v. Waliullah Shah & another) whereby appellant Waliullah Shah, son of Akram Shah has been convicted for offence under Section 3 of Illegal Dispossession Act, 2005 and sentenced to undergo imprisonment for five years and to pay Rs.50,000/-, in default whereof to serve three months more in prison; the appellant has also been directed to pay compensation to the complainant for Rs.100,000/- (rupees one lac) and in default thereof, same shall be recovered from him as arrears of land revenue. The Mukhtiarkar and the S.H.O. concerned were directed to restore possession of the disputed property to the complainant.
2. During the pendency of the instant appeal, both parties have compromised the matter outside the court, and in this regard, they have filed joint applications under Sections 345(5) & 345(6) of Cr.P.C alongwith supporting Affidavit of complainant Muhammad Usman Brohi. Respondent No.1/complainant Muhammad Usman Brohi, present in person, submits that possession of the property in dispute has been handed over to him; therefore, he, with the core of his heart, has forgiven the appellant; hence, they have filed compromise applications jointly, and he does not want to prosecute the appellant anymore, and he has no objection if these applications are allowed and the appellant is acquitted of the charge.
3. Learned Counsel for the appellantsubmits that the appellant has already put the complainant under peaceful and vacant possession of the land in dispute. He, therefore, submits that by granting compromise applications, the appeal may be disposed of, and the appellant may be acquitted of the charge.
4. Learned Addl. P.G.has recorded his no objection if the compromise applications are allowed.
5. A joint application for compromise between the appellant and the complainant/respondent, supported by affidavits, has been duly recorded. The complainant/respondent has also provided a statement confirming that possession of the disputed property has been relinquished to him, and consequently, he raises no objection to the acquittal of the appellant/accused from all charges, including the imposition of any fine. This statement has also been recorded.
6. The appellant-accused was convicted under subsection (2) of Section 3 of the Illegal Dispossession Act, 2005. The Illegal Dispossession Act 2005 does not specify whether the alleged offence is compoundable or non-compoundable. Section 9 of the Act mandates that, except where otherwise specified, the provisions of the Criminal Procedure Code, 1898, shall govern all proceedings conducted under the Act. Therefore, it is my considered view that a compromise effectuated under the Act must be regarded as a compromise under Section 345 of the Criminal Procedure Code.
7. It is important to note that the enumeration of offenses in Section 345 of the Criminal Procedure Code is clear and unequivocal, thereby eliminating any doubts or uncertainties and serving as a complete and comprehensive framework for the compounding of offences. The prevailing judicial consensus asserts that the Legislature has established, within this section, the criteria for distinguishing between offences that pertain solely to individuals and those that concern the interests of the state. Courts cannot exceed this prescribed framework or impose an alternative standard. The alleged offence is contrary to public policy or against the State. The alleged offence can be compounded as it fulfils all the conditions outlined in Section 345 of the Criminal Procedure Code.
8. In the case of Muhammad Rawad V/S The State 2004 SCMR 1170, the honourable apex court of Pakistan has observed as under:-
"3 .It may be noted that tabulation of the offences as made under section 345, Cr.P.C. being unambiguous remove all doubts, uncertainty and must be taken as complete and comprehensive guide for compounding the offences. The judicial consensus seems to be that "The Legislature has laid down in this section the test for determining the classes of offences which concern individuals only as distinguished from those which have reference to the interests of the State and Courts of law cannot go beyond that test and substitute for it one of their own. It is against public policy to compound a non‑compoundable offence, keeping in view the state of facts existing on the date of application to compound. No offences shall be compounded except where the provisions of section 345. Cr.P.C. are satisfied as to all 'matters mentioned in the section'
9. The august Supreme Court of Pakistan, in the case of Zulfiqar-ud-din vs. State, etc. (P.L.J. 2022 SC Cr.C. 40), has held as under:-
"During the pendency of the appellant's appeal before the High Court the complainant namely Umer Ahsan (PW-4) as well as the alleged victims namely Mst. Alia Bibi (PW-5) and Mst. Haleema Bibi (PW-6) had sworn affidavits maintaining therein that the present appellant has been implicated in the present case on account of some misunderstanding, the appellant had not abducted anybody and the allegation of rape leveled against him was also a result of misunderstanding. the complainant had personally appeared before the High Court at the time of hearing of the appellant's appeal and he had owned the affidavits sworn by him and the two victims. It is important to notice here that the said stand taken by the complainant and the alleged victims had been accepted by the High Court and resultantly the appellant had been acquitted of all the charges pertaining to the compoundable offences and his sentences vis-a-vis the non-compoundable offences were reduced by the High Court. We are of the opinion that if the High Court was minded to accept the affidavits sworn by the complainant and the alleged victims, in which affidavits it had been maintained that the allegations leveled against the appellant were factually incorrect, then instead of reducing the sentences of the appellant vis-a-vis the non-compoundable offences the High Court ought to have rejected the prosecution's case as a whole entailing acquittal of the appellant, but unfortunately that course was not adopted by the High Court. "Further reliance can be placed in the case of of Ghulam Shabbir and another vs. The State (2003 SCMR 663),
10. 11. In another case reported as Shahid v. The State and another(2017 Y.L.R. Note 81 [Lahore]), it was held as under:
"Needless to say, compromise even in non-compoundable offences makes a crucial circumstance and a redeeming feature which helps the warring-parties come close to each other and live peacefully onwards. Let non-compoundable nature of the offences under sections 452, 354, P.P.C. not frustrate their noble intentions."
11. The Honourable Lahore Court in the case of Ali Raza and another v. The State and another reported in PLD 2013 Lahore 651 made following observations:
"The offence alleged is certainly non-compoundable but the eagerness of the parties to settle their dispute by executing an agreement, in mentioned terms has to be given a sense of respect, so that they may harvest benefit thereof. The complainant and his wife, who are doctors/ medical-officers by profession, hence, educated persons; well understand the ins and outs of the compromise arrived at and they, being, present in person like Mst. Kalsoom Bibi accused have expressly stated that they on account of compromise do not intend to prosecute the accused-petitioners further, if the loss allegedly sustained by the complainant and his wife at the hands of the accused/ petitioners has been made good, to their entire satisfaction, there may be no harm in allowing the instant applications for bail after arrest. Even otherwise, it has always been observed that the compromise even in non-compoundable offences is a redeeming factor, which brings peace, harmony and coherence in the society and it may have far-reaching positive effects, in the lives of warring-parties"
12. Ijaz and another v. Mst. Manadia (PLD 2016 Pesh. 26); offences related to special laws such as the Anti-Terrorism Act (A.T.A.) were traditionally non-compoundable. However, compromises between parties have been acknowledged by both the Honourable Peshawar High Court and this court. Similarly, Abdul Wahab and 3 others v. Additional Sessions Judge, Okara and 3 others(PLD 2012 Lah. 305);in the cases of Abdul Wali and Abdul Wahab, compromises were reached between the parties during the pendency of cases before the trial court under Sections 3 and 4 of the Illegal Dispossession Act, 2005. The trial court accepted these compromises, but following the acquittal of the accused, some parties sought a review and attempted to reopen the case on certain grounds. Both the Lahore and Peshawar High Courts declined to set-aside the trial court's findings, thus affirming the recognition of the compromises made between the parties.
13. It is recognized that parties to a dispute may reach an amicable resolution, signifying their commitment to co-exist in peace, tranquillity, and harmony. This principle reflects the legal philosophy that encourages the settlement of disputes through mutual agreement, thereby promoting social stability and reducing the burden on the judicial system. In relation to the non-compoundability of specific offences, it is critical to interpret such provisions within the context of individual cases. Legal precedents suggest that a beneficial interpretation of statutory provisions should be favoured, allowing courts to consider in accordance with the facts and circumstances of each case rather than applying a rigid interpretation. This approach aligns with the broader legal philosophy of justice and equity, emphasizing that the spirit of the law should guide judicial outcomes to foster reconciliation and uphold community harmony.
14. In light of the compromise reached between the parties outside the court, the complainant's decision not to pursue the case, and his lack of objection to the appellant's acquittal, it is not appropriate to uphold the conviction. Therefore, in order to maintain cordial relations between the parties in future, the application under Section 345(5), Cr. P.C. is hereby granted; resultantly, the application under Section 345(6), Cr. P.C. is accepted. The appellant is acquitted of the charge by way of compromise. He is present on bail; his bail bonds are cancelled and surety, discharged.
15. Appeal stands disposed of in the above terms.
JUDGE
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