P L D 1984 Lahore 196 (PLP)

The Believers fall into A quarrel make ye peace Between them: but if One of them transgresses Beyond bounds against the other The command of Allah; But if it complies, then Make peace between them With justice, and be fair: For Allah loves those Who are fair (and just).

10. The Believers are but A single Brotherhood So make peace and Reconciliation Between your Two (contending) brothers; And fear Allah, that ye May receive Mercy. I have had the advantage of perusing the commentary on these qur anic verses by maulana abul Ala maudoodi in his work tafheem-ul-Quran The command of Almight Allah is couched in clear terms and it enjoins every muslim to act in abedience thereto therefore the proposition as being canvassed has much to commend itself.

10. The plea under consideration calls for examination of the state of statutory law. A perusal of the scheme of the Pakistan penal code would show that while prescribing punishment for various offences the first category is of those offences where any sentence upto a maximum is provided the second category is of those case where choice has been given to the court in its discretion to award any of the two penalties prescribed such as in case of section 302, P. P. C where the court can after holding an accused person guilty of the offence either award death penalty of imprisonment for life then the third category is of those offences where while prescribing a maximum punishment upto certain number of years it has also been laid down that the punishment to be awarded shall not be less than that specified. In the present case the offence is under section 307 P. P. C which does not fall in the third category as pointed out above that is it does not say that a person found guilty of this offence shall not be awarded less than the prescribed penalty in so far as the scheme of law is concerned in the matter of offences falling under the first category mentioned above as is the position in the present appeal the quantum of sentence to be awarded in the facts and circumstances of each case, within the limits laid down, has been left to the judicial discretion of the Courts. The Legislature has forbidden compounding of offences amounting to acquittal in non compoundable cases as already noted but the field is open as regards discretion to award sentence in a given case on consideration of rapproachement/ reconciliation and compromise between the parties. So, enforcement of this plea being advanced on behalf of the appellants in the present case is not met by any statutory fetters standing in the way of this Court from exercising its judicial discretion in giving effect to it. In such like cases where the complainant and the injured person have pardoned the accused and the parties have settled their disputes to secure peace, I am clear in my mind that the circumstance can be treated by the Court hearing the appeal as a mitigating circumstance for awarding lesser punishment. The Court, of course, is to be satisfied that the patties in adopting the above course are motivated by the desire to abide by the command of Almighty Allah to secure peace by behaving like brethren‑in‑Islam and want to shun hostility and blood‑feuds and that it is free from vitiative influences. Following of this course visibly has the wholesome effect of bringing about amity between two warring factions of Muslims. The village community, at the same time, shall stand relieved of the necessary concomitants of violence and strife such as constant agony, tensions and sense of insecurity generated by belligerency between the two factions.

11. I have examined this appeal on merits and gone through the material on the record as well as the judgment of the trial Court. The learned counsel for the appellants after arguing the appeal on merits of conviction was unable to make any debt in the case of prosecution so as to make out a case of acquittal. The accused‑appellants are the persons named in the F. I. R. The eye‑witness account is consistent with the prosecution version and their credibility remains unshaken. It has been rightly believed by they trial Court. The case unfolded at the trial on the strength of the evidence led, justified the conviction as the prosecution has succeeded in discharging its onus of bringing home the charge to the accused‑appellants beyond reasonable, doubt.

12. In the facts of this case, I am of the view that the plea of award of lesser penalty is acceptable on being satisfied that compromise/reconciliation is equitable, fair and just. It has been genuinely arrived at in good faith by competent parties and is not the outcome of coercion, intimidation or threats held by one faction to the other. The complainant, the injured person and the accused are parties to the compromise which has the blessing of their relatives and that the sole motivating factor for moving this applica tion for reduction of sentence is designed, in keeping with divine will, to achieve harmony, peace and to a turbulent era stretching over decades.

13. Before concluding, I consider it desirable to observe that the learned Advocate‑General of Punjab, Sh. Riaz Ahmed, would do well in drawing the attention of the authorities concerned to the desirability of introducing appropriate provisions in the Code of Criminal Procedure for making it obligatory for the Courts, at all levels i.e. during the original, in appellate and revisional proceedings to make an attempt to bring about a compromise/ reconciliation between the fighting factions. It can be safely said on the basis of experience that such efforts are more often than not rewarding. The stage for achieving this purpose is more appropriately set when the passions and emotions have rather cooled down with the passage of time which is a proverbial healer and thus chances of return to normalcy brighter. Following of this course appears to be in consonance with the spirit of the Qur'ania injunctions noticed above. In such an eventuality, responsibility would fall on the shoulders of the Court in case of a compromise to ensure that it i equitable and just as enjoined in the two Qur'anic verses. A mere provision in the Statute for giving opportunity to the parties for compormise/reconcilia tion without participation of the Courts may perhaps serve ceremonial purpose but would not be as efficacious as it ought to be. I feel sure that following of this course would also advance public policy by achieving public tranquillity and public interest would be‑ served through saving of public time and expense.

14. It must be pointed out at the same time that in the absence of statutory sanctions for adoption of an above‑board compromise course in criminal matters, the same purpose is sought to be achieved in most cases by interested parties through underhand means. They, as per necessity, are driven to adopt dubious devices and tell deliberate lies in the face of the Court. The usual practice in such like cases is that prosecution witnesses including the complainant resile and do not support the prosecution case at the trial stage. In the alternate, they make concessions or introduce contradictions during the cross‑examination as are sufficient to knock the bottom out of the whole case. The Courts of law obviously cannot convict in the total absence of evidence or for want of sufficient evidence of the quality which could lead to the inference of guilt of the accused beyond any reasonable doubt. In practical reality, the parties adopt their own extra legal ways to give effect to the private compromises. These aspects are too well‑known to those who have experience of criminal trials. It is rather anomalous that a set of persons who compromise out of the Court in non‑compoundable offences through suppression of facts manage to get acquittals by hoodwinking the law whereas those who wish to adopt the honest course and take the Court into confidence are not sure of the treatment that they would receive and the fate they would meet. The uncertainty of the situation would, therefore, continue to make the people prone to believe that adoption of ignoble means to achieve a noble end of securing peace and harmony pays dividends.

15. This unhappy trend is also embarrassing for the trial Courts. In such a situation, it is tragic, that these Courts act as passive spectators and have to continue with a farcical legal ceremony of a virtual mock trial by recording perjured/false evidence. The truth is thus suppressed and sacrificed at the altar of expediency which in turn is bound to give rise to the erroneous belief that falsehood prospers. The harmful effects of this undesirable, practice are too numerous to be listed. It should suffice to observe that its amounts to allowing premium on deliberate lies. There is no sanction for such a course in Islam and indeed such acts or tendencies being despicable are deprecated.

16. It is in this manner and under such circumstances, that the sanctity and solemnity of Court proceedings and the oaths administered are been eroded, day by day, wittingly or unwittingly, by the parties to criminal litigation. The moral fabric of the society is thus bound to be torn into shreds, slowly but surely. This happens daily right under our noses. Is it not too much for the trial Courts to watch as silent spectators a drama being staged despite themselves being participants in it? The evil practice is bound to have far serious repercussions and may shake the very faith of the people in any judicial system. It needs to be emphasised that faith and confidence of the people in the Courts constitutes the bedrock of their beneficial existence and sine qua non for successful functioning.

17. It falls for further consideration as to how the trial Courts are to proceed when confronted with a farcical trial of the nature spelt out above. Should the Court not be put on inquiry and after lifting the veil ascertain the truth ? On discovery so made, if found to be a bona fide case of compromise already arrived at, out of the Court, by concerned parties, in suitable cases through above‑board procedure, the trial Court on being satisfied about the pre‑conditions for such a course being fulfilled, proceed to treat it as a mitigating circumstance and award any permissible sentence in exercise of judicial discretion. The inquiry so held by the Court would have the additional advantage of separating the grain from the chaff and thus detecting cases of suborning of prosecution witnesses either through pressure tactics or winning them over through temptations or virtual bribe. The cases falling in the latter category can then be deterrently dealt with in accordance with law.

18. However, in other cases, where the compromise has been arrived at in Court, it would have the tremendous advantage of the arrangement being equitable and just which would be the duty cast on the Courts to ensure. Due' observance of this paramount requirement would obviate chances of deceit and gaining of undue advantage by the hypocrites.

19. Speaking in the lighter vein, it may be stated for the benefit of the learned Advocate‑General that observations made by the superior Courts since good old days have traditionally been treated by the other limbs of the State like a fire alarm' rather than a customary 'wake up call'.

20. For reasons stated, this appeal is partly accepted to the extent that sentence of all the three appellants is seduced to one already undergone by them. The appellants who are on bail shall be relieved of their bail bonds. M. Z. M. Appeal partly accepted.