2007 PLP 1503 (YLR)

M. BILAL KHAN, J.

This Revision Petition calls in question the order dated 17-5-2006 whereby a private complaint under sections 148, 302, 324, 392 and 149, P.P.C. filed by Arshad Ali son of Mushtaq Ali, the present petitioner, had been dismissed by the learned Additional Sessions Judge, Ferozewala.

2. The brief facts giving rise to the instant revision petition are that F.I.R., No.558 dated 6-11-2003, under sections 302, 324, 148 and 149, P.P.C. had been registered with Police Station Sharaqpur Sharif District, Sheikhupura, at the instance of one Abid Hussain son of Abdul Aziz wherein the present petitioner namely Arshad Ali had been described to be an onlooker who had allegedly sustained a gunshot injury during the transaction; however, subsequently on the basis of a supplementary statement dated 25-10-2004 proclaimedly made by the complainant, Arshad Ali petitioner was relegated as an accused in the said F.I.R., that being aggrieved of the said action of the local police, Arshad Ali petitioner filed a private complaint against Liaquat Dhudi son of Muhammad Ali, Rauf alias Moon, Fakhar sons of Muhammad Ikram, Javaid Doongi son of Rafi and Niamat Masih son of Pira Masih respondents; the complaint was entrusted to the learned Additional Sessions Judge on 28-1-2005; however, while the complaint was still pending the same was withdrawn on 31-1-2005 on the statement of the complainant to the effect that "compromise has been effected with the respondents". Later on the present petitioner filed a second complaint on the basis of the same facts on 18-4-2006, however, the said complaint was dismissed by the learned Additional Sessions Judge, Ferozewala on 17-5-2006 in the following terms: "... The perusal of the instant complaint under sections 302/324/ 392/148/149, P.P.C. denotes that the complainant earlier launched a complaint pertaining to incident dated 6-11-2003. Subsequently the complainant arrived at a compromise with the accused and accordingly, the complaint of the complainant pertaining to the same incident was dismissed as withdrawn with the order of the Court, as it is vivid and manifest from Para Nos.4 and 5 of this complaint and cursory/summary/ preliminary statement of the complainant recorded by this Court. Now after the lapse of period of more than one year, the complainant has filed similar, akin and identical complaint to that of previous one. Previous complaint was dismissed as withdrawn on the basis of compromise arrived at between the parties. Now the complainant is debarred to move this second private complaint legally. As discussed/opined prior, this complaint cannot be entertained legally and the same is accordingly dismissed????????? " It is the said order dated 17-5-2006, which has been impugned by means of this revision petition. Although the petitioner had raised a variety of contentions in support of this revision petition but the main plank of his argument was that dismissal of the petitioner's complaint vide order dated 31-1-2005 would not operate as acquittal of the respondents named therein, notwithstanding the terminology used by the learned trial Court, and was, therefore, not barred to file the subsequent complaint on the same facts.

3. On the other hand the learned counsel for the respondents maintained that the withdrawal of the complaint in the given facts and circumstances of the case would operate as acquittal of the respondents named therein and that filing of subsequent complaint on the basis of same facts was not barred.

4. I have heard Mr. Muhammad Waseem, Advocate the learned counsel for the petitioner, Mian Parvez Hussain, Advocate, the learned counsel for the respondents as also Mr. Naseer-ud-Khan Nayyer, the learned Additional Prosecutor-General Punjab and have perused the available record.

5. It is not denied that the trial has yet not commenced and the case was at inquiry stage. Composition in a criminal case can be brought about in the manner as provided in section 345 Cr.P.C., section 345(2), Cr.P.C. reads as under: "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." It would be noted that composition in offences under sections 302, 324, P.P.C. is to be brought about before a Court where prosecution for such an offence is pending. Obviously no prosecution was pending before the Court and the case was only at inquiry stage, therefore, no compromise as contemplated under section 345(2), Cr.P.C. could be effected so as to entitle the accused persons to the consequences which flow from the said compromise i.e., acquittal from the charge. Even otherwise it has to be kept in mind that composition of an offence requires the cooperation and y participation of both the parties whereas withdrawal is a unilateral act on the part of the complainant. It is for the Court to see as to whether petition is one for withdrawal or for compromise and a mere declaration of the complainant that he has compromised with the accused would not be sufficient. The Court has to satisfy itself about the genuineness of the compromise and the capacity of the legal heirs or those entitled to compound the offence to enter into such a compromise. The trial Court would also not be precluded to look into the contention raised by any of the parties that compromise had been extracted from it by coercion, misrepresentation or under duress. In the case of Azmat Bibi and another v. Asifa Riaz and 3 others (PLD 2002 SC 687) it was held that section 248, Cr.P.C. would be applicable only in those cases where the trial has commenced. Admittedly trial had not commenced in the instant case, even the accused persons had not been summoned to face trial. Thus, the situation which emerges, is that neither a valid compromise had taken place nor were the provisions of section 248, Cr.P.C. attracted, as such, the respondent cannot C claim that they had been acquitted of the charge against them so as to attract the bar contained in section 403, Cr.P.C. and Article 13 of the Constitution of Islamic Republic of Pakistan 1973.

6. For what has been discussed above, this revision petition is allowed and the impugned order dated 17-5-2006 passed by the learned Additional Sessions Judge, Ferozewala is hereby set aside. The private complaint filed by the petitioner which had been dismissed vide impugned order supra shall be deemed to be pending before the learned trial Court and shall be proceeded with strictly in accordance with law. N.H.Q./A-25/L??????????????????????????????????????????????????????????????????????????????????? Petition allowed.