1996SCMR1002 (PLP)

MUHAMMAD MUNIR KHAN, J.--This petition for leave to appeal which is directed against the judgment of the Lahore High Court, Lahore, dated 30-4-1994, arises from the facts that Muhammad Ishtiac), Ali, Muhammad, Israr Ahmad, Shahzadul Hassan, Muhammad Ishaque, Muhammad Azam and Muhammad Zagim Khan (petitioners) were tried alongwith three others by the learned Additional Sessions Judge, Lahore, under various sections of the Pakistan Penal Code, who, on the conclusion of the trial, vide judgment dat6d 4-5-1993, while acquitting the three co-accused convicted and sentenced the petitioners as under:-- (i) Under section 302/149, P.P.C for the murder of Zahid Karim Muhammad Ishaque alias Sakoo (petitioner No.4) to death and others to imprisonment for life. They were directed to pay Rs.25,000 each as compensation to the legal heirs of the deceased or in default to suffer six months' R.I. each. (ii) Under section 452, P.P.C for criminal house-trespass-after having made preparation to cause hurt--Five years R.I. to each. (iii) Under section 337/-F (ii)/149, P.P.C for causing injuries to Tahir Karim P. W.--Two years' R.I. to each. The sentences of imprisonment were to run concurrently.

2. Feeling aggrieved thereby, the petitioners filed an appeal in the Lahore High Court, Lahore, High Court During the pendency of the appeal the parties had compromised. An application in this regard, alongwith compromise, affidavits etc. was filed before the High Court. The legal heirs of the deceased appeared before the High Court and admitted to have accepted Badal-e-Sulh and compounded the right of Qisas. Tahir Karim also appeared before the High Court in support of the compromise. Consequently, the convictions and sentences of the petitioner under sections 302/149, P.P.C. and 337-F (ii)/149, P.P.C were set aside and they were acquitted of these charges. The offence punishable under section 452, P.P.C. was not compoundable and it was not legally possible to acquit the petitioners on the basis of compromise. The learned counsel appearing for the petitioners in the High Court decided not to contest the conviction recorded under section 452 P.P.C on merits. Instead, he requested for reduction in sentence. Appreciating the stance taken by the learned counsel, the High Court reduced the sentence from five years' R.I. to three years' R.I. each, with benefit of the provisions of section 382-B of Cr.P.C.

3. Strangely enough, the petitioners have filed this petition challenging the conviction under section 452, P.P.C on merits: Before us, Khawaja Muhammad Sharif, Advocate, the learned counsel for the petitioners has raised the following points:

(i) The place where the petitioners had allegedly entered was not a house within the meaning of section 442, P.P.C. As such, the conviction under section 452, P.P.C was not maintainable. (ii) In view of the compromise in the major offence (murder), the High Court should have set aside the conviction of the petitioners under section 452, P.P.C., at least, on humanitarian and compassionate grounds; and (iii) Shahzad-ul-Hassan alias Gurrilla and Muhammad Zagim Khan (petitioners Nos.3 and 6) are Government servants and consequent upon their conviction under section 452, P.P.C they are likely to be dismissed from service.

4. We have carefully considered the submissions made by the learned counsel. The impugned judgment shows that the counsel appearing for the petitioners in the High Court (not Khawaja Muhammad Sharif, Advocate) had elected not to contest the conviction of the petitioners under section 452, P.P.C, instead he had prayed for leniency in the sentence and it was on account of this stance that the High Court was inclined to reduce the sentence from five years R.I. to three years' R.I. In this view of the matter, it does not now lie in the mouth of the present counsel for the petitioner to question conviction under section 452, P.P.C of the petitioners, on merits. Offence under section 452, P.P.C. is not compoundable. As such, it was not possible for the High Court to set aside the conviction of the petitioners under this charge even on any compassionate and humanitarian grounds. For these reasons we would decline to interfere with the impugned judgment.

5. Accordingly, leave to appeal is refused. N.H.Q./M-2264/S Leave refused.