2012 PLP 791 (YLR)

SAYYED MAZAHAR ALI AKBAR NAQVI, J.

By means of instant criminal appeal filed under section 417(2-A), Cr.P.C, Muhammad Matta appellant has called in question the vires of order dated 21-5-2005 passed by Mr. Khalid Iqbal Khan, learned Magistrate 1st Class, Khushab; whereby the learned court while allowing application under section 249-A, Cr.P.C. had acquitted the accused/ respondents Nos.1 to 5 of the charge.

2. Facts of the case, succinctly required for determination of the appeal in hand, are that appellant lodged case F.I.R. No.228, dated 12-7-2003, offence under sections 337-F(i), 337-L(2) 34, P.P.C., at Police Station Jauharabad, District Khushab, against the accused/respondents Nos.1 to 5 with the averments that they had inflicted injuries on the person of the complainant and others with bricks and fist and kick blows.

3. It is pertinent to mention here that at bail stage, the complainant and other injured witnesses entered into compromise with the accused/respondents Nos.1 to 5 and on their statements, they were admitted to bail by the learned court of first instance. During the course of investigation, the accused/respondents Nos.1 to 5 were found guilty and the Investigating Officer while placing their names in Column No.3 of the report prepared under section 173, Cr.P.C, sent the same to the competent court of law. The learned trial court handed over the copies of the relevant documents to the accused/respondents Nos.1 to 5; however, an application was moved by them under section 249-A, Cr.P.C, with the averments that as the complainant and other injured witnesses had entered into compromise with them, therefore, they be acquitted of the charge. The learned trial court in terms of order dated 25-11-2004, dismissed the application. The accused/ respondents assailed the order of the learned trial court by means of criminal revision petition and the learned revisional court in terms of order dated 10-1-2005, allowed the petition and directed the learned trial court to decide the matter afresh after affording hearing to the parties on the touchstone of PLD 2002 Lah.

739. The learned Magistrate Khushab in terms of order dated 21-5-2005, by way of allowing application under section 249-A, Cr.P.C, acquitted the accused/respondents Nos.1 to 5 of the charge.

4. Learned counsel for the appellant has contended that the impugned order dated 21-5-2005, rendered by learned Magistrate, Khushab has been passed in haste and the learned court failed to fake note of the chain of judgments of the superior courts of the country on the subject. Learned counsel argues that admittedly the learned trial court had earlier dismissed the application in terms of order dated 25-11-2004, therefore, it was not justified to allow the same subsequently. Learned counsel further states that as has been held by the august Supreme. Court of Pakistan in the case of Muhammad Akram v. Abdul Waheed and 3 others (2005 SCMR 1342), compromise at bail stage cannot be made basis for acquittal of the accused. Learned counsel vehemently submits that the complainant and three ladies sustained injuries as such while ignoring their injuries, acquitting the accused without recording evidence, would be against the canon of criminal justice.

5. On the other hand, learned D.P.-G. assisted by learned counsel for the accused/respondents Nos.1 to 5 has vehemently opposed this appeal and supported the impugned order. It is contended that as the complainant and other prosecution witnesses had entered into compromise with the accused/ respondents Nos.1 to 5, therefore, they were rightly acquitted by the learned trial court.

6. Arguments advanced from all corners have been heard. I have also gone through the record available on file and the reasons advanced by the learned trial court the impugned order, in particular.

7. There is no cavil to this proposition that it has been the consistent view of the superior courts of the country to promote harmony among the society and every possible effort should be made by the courts to afford sufficient time to the parties to solve their controversy amicably. In the instant case, complainant and three ladies received injuries at the hands of accused/respondents Nos.1 to

5. With the intervention of respectables of the locality, they entered into compromise at bail stage before the learned court of first instance; whereby they were admitted to bail. Subsequently, the application filed by the accused/respondents under section 249-A, Cr.P.C. was dismissed in terms of order dated 25-11-2004, however, on remand; the learned trial court allowed the application and acquitted the accused/ respondents of the charge. I have carefully gone through the revisional order dated 10-1-2005, passed by learned Sessions Judge, Khushab and the impugned order dated 21-5-2005, passed by the learned trial court; whereby the accused were acquitted of the charge. Admittedly the complainant and other injured witnesses entered into compromise with the accused/respondents at bail stage before the learned court of first instance, which confined to only bail and such compromise was never made before the learned trial court. The findings of the learned trial court that in presence of earlier compromise between the parties at bail stage, there is no possibility of conviction of the accused/respondents, I must say, are contrary to law on the subject. Guidance in this regard is sought from the case of Muhammad Akram v. Abdul Waheed and 3 others (2005 SCMR 1342); wherein their lordships in the august Supreme Court of Pakistan held as under:-- "

Compromise was effected during pendency of petition for bail before arrest, when prosecution of the offence was not pending before the Trial Court

Such compromise could not be made basis for acquittal of the accused as under section 345(2), Cr.P.C., it was the Trial Court which had to satisfy itself and grant permission to compound the offence being tried by it

Judgment passed by High Court was well-reasoned and was entirely in accordance with law, which did not call for any interference by Supreme Court

." 9(sic) In sequel to what has been discussed above, I am of the considered view that the impugned order dated 21-5-2005; whereby the learned trial court while allowing application filed by accused/respondents Nos.1 and 5 under section 249-A, Cr.P.C. had had acquitted them of the charge, is not justifiable being against the dictates of law settled by the apex court of the country, on the subject. The same is set at naught. The learned trial court directed to decide the matter afresh keeping in view the statement of the complainant made before it, which made the basis of order dated 25-11-2004.

10. Before parting with this order, I have noted that the F.I.R. was got registered in the year 2003 and now we are passing through 2010, therefore, the learned trial court shall decide the case within a period of three months from the receipt of order of this Court.

11. The case is remanded back. N.H.Q./M-635/L Appeal accepted.