ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

Crl. Revision Application No.S-96 of 2014

DATE ORDER WITH SIGNATURE OF JUDGE

21^st day of July, 2014

Mr. Ayaz Ali Gopang, Advocate for applicant

Mr. Shahid Sheikh , A.P.G, for the State

ORDER

SALAHUDDIN PANHWAR, J:-Through the instant Revision petition, the applicant has called in question the legality of the order dated 01.4.2014 passed by learned 1^st Additional Sessions Judge, Shaheed Benazirabad whereby application (s) U/s 345(2) & (6) Cr.PC, moved in S.C.No.143/2005 S/v Muhammad Ismail Bhangwar & Ors, were dismissed.

02. Succinctly the facts of the case are that one Allahdino lodged FIR at PS B Section Shaheed Benazirabad on 10.7.2013 at 1515 hours with an allegation thaton 09.7.2005 at 5.00 pm accused persons namely Muhammad Ismail, Adam and two unknown persons, being armed with deadly weapons, made brother of complainant namely Shah Ali to stop his motorcycle ; abused and accused Muhammad Ismail caused fire shot while accused Adam caused hatchet blows on legs and arms and unknown persons caused butt blows of their respective weapons and then ran away on cries of complainant party. After necessary case was

sent up for trial; during pending of the trial accused Adam was murdered and case was separated and tried which culminated in conviction. The conviction was maintained up-to Honourable Supreme Court.

3. The applicant claims that parties reached to a compromise out of the course , therefore, compromise application(s) under section 345(2) & 345(6) Cr.P.C were moved before the trial Court, who called parties in person but after hearing the parties dismissed the application vide order, impugned through the instant revision petition.

4. On 14.7.2014 during course of hearing of the revision petition, the pleas taken by learned counsel for the applicant, resulted in putting him on notice to satisfy on legal proposition i.e:

‘How a Wali can be appointed to waive on behalf of adult injured who, having received injuries, became paralyzed?

5. The learned counsel for the applicant has inter alia contended that order of the trial Court is against the settled principle of criminal administration of justice, parties have been patched up ex-curia, thus acceptance of compromise applications will bring the harmony and peace between the parties and locality.

6. On the other hand, the learned APG, supported the order passed by learned trial court Judge and prayed for dismissal of the revision petition.

7. To properly appreciate the proposition, so framed, it would be advantageous to refer the relevant provision (s) of the Criminal Procedure Code and that of Pakistan Penal Code.

Section 345. Compounding offences. (1). The offences punishable under the sections of the Pakistan Penal code specified in the first two columns of the table next following may be compounded by the person mentioned in the third column of that table:-

Thus, it is the ‘person’ , mentioned in third column, who is / are competent to compound the offence (s) and not otherwise. The relevant section of the PPC, involved in the matter, is 324 PPC. Per third column of the table of Section 345 (1) Cr.P.C the competence to compound such offence is :-

‘The person against whom the offence was committed’

The above makes it clear that it is the ‘victim’ himself who is competent to compound the offence but since an offence shall be an offence even if it is committed against ‘a minor’ or ‘an idiot / lunatic’ , how (minor or lunatic), under the law, are not legally competent to enter into any transaction or make a legal binding statement particularly in view of the Section-11 of the Contract Act, 1872 which reads as under:-

11. Who are competent to contract? Every person is competent to contract who is of the age of majority according to the law to which he is subject (See the Majority Act, 1875 and who is of sound mind, and is not disqualified from contracting by any law to which he is subject.

Therefore, subsection-(4) was made a part of the Section 345 of the Code to deal with such a situation which reads as under:-

(4) When the person who would otherwise be competent to compound an offence under this section is (under the age of eighteen years or is) an idiot or a lunatic, any person competent to contract on his behalf may (with the permission of the Court) compound such offence’

8. Per subsection (4) of the Section 345 of the Code, in the case of ‘victim’ being a minor or idiot / lunatic it would be any person competent to contract on his behalf . Since such person has not been defined by the Code or PPC therefore, keeping in view the specific reference to competence of making a contract, I may safely endorse here that it would be ‘guardian’ of such minor or lunatic who can competently act on behalf of the minor. Per section of the Guardians & Wards Act, 1890 the following persons are entitled for their appointment as ‘guardian’:

a) the person desirous of being, or claiming to be, the guardian of the minor, or

b) any relative or friend of the minor, or

c) the Collector of the district or other local area within which the minor ordinarily resides or in which he has property, or

d) the Collector having authority with respect to the class to which the minor belong;

The above shall also apply to where the person is capable of not understanding or not-responding the things properly as may be in the case of a ‘deaf and dumb’ or person paralyzed, as has been in the instant matter, because such person also stand in the queue of minor / idiot if the court comes to the conclusion that such person cannot properly explain / say themselves.

9. Before making a final respond to the proposition, it would be relevant and necessary to make it clear here that within meaning of the Subsection (4) of the Section 345 of the Code it is not the Wali , who is competent to compound because the ‘Wali’ comes into picture only in the matter of ‘Qatl’ as is evident from the Section 305 of the Pakistan Penal Code which reads as under:-

305. Wali.—In case of a qatl, the Wali shall be—

a) the heirs of the victim, according to his personal law (but shall not include the accused or the convict in case of qatl-i-amd, if committed in the name or on the pretext of honour) and

Thus, from so far discussion, it becomes clear that in matter (s), falling within meaning of Section 345(4) of the Code no compromise can legally hold the field unless a person, otherwise competent to contract of behalf of such person, is permitted by the competent Court to compound on behalf of such person within meaning and object of the Section 345(4) of the Code. The court, may adopt, any procedure to satisfy itself before entertaining and accepting the request of the person, if moved under section 345(4) of the Code.

10.. While, reverting to the merits of the case in hand and for which the operative part of the order, impugned, is helpful which is as under:-

‘The injured was brought by his family members in the Court, when this Court enquired from the injured about the compromise or whether he has forgiven the accused persons, but was not in a position to give the reply as he cannot understand the question and cannot speak anything and so also he was paralysed (paralyzed), therefore, in these circumstances when the injured is not in a position to give the statement before this Court to understand anything. Hence in these circumstance permission for the compromise cannot be given to the complainant and the accused to entered (enter) into the compromise, therefore, the application U/s 345(2) & (6) Cr.PC. are hereby stand dismissed’

11. From the reading of the above, it is quite clear that since the injured was not legally capable to make a legal binding statement / act, therefore, the learned trial court judge, was right in dismissing the application (s), moved under Section 345(2) & (6) Cr.P.C because in such eventuality the proper course, available was to move under section 345(4) of the Code which has not been resorted to by the parties. Therefore, I am of the considered view that the revision petition is not sustainable under the law as there is no jurisdictional error or illegality on part of the learned trial Court while recording the impugned order. Accordingly, the revision petition is dismissed.

JUDGE

Imran/PA