Compromise between parties

2024 SCMR 1600 SUPREME-COURT Judicial Precedent

Ss. 302(b), 324, 337-D & 337-F(iii)Qatl-i-amd, attempt to commit qatl-i-amd, jaifah, ghayr-jaifah-mutalahimahReappraisal of evidenceSentence, reduction inCompromise between parties

In the instant case though the complainant and legal heirs of the deceased had not filed compromise documents (in court) but the complainant had made a statement before the Supreme Court that the legal heirs of both the deceased had pardoned the convict and they were not interested to further pursue the matter

Such circumstance coupled with motive of the occurrence and altercation of the convict with the deceased prior to the occurrence were considered as mitigating circumstances to reduce the sentence of death of the convict under section 302(b), P.P.C. as Ta'zir to imprisonment for life

Petition was converted into an appeal and was partly allowed, the conviction awarded to the petitioner under section 302(b). P.P.C was maintained, however his sentence of death on two counts was converted to that of imprisonment for life.

2023 YLR 1253 KARACHI-HIGH-COURT-SINDH Judicial Precedent

O. XXIII, R. 3Law Reforms Ordinance (XII of 1972), S. 3Intra Court AppealCompromise between partiesAppellants sought disposal of appeal in view of compromise arrived at between parties outside of CourtValidityParties under litigation settled their dispute outside the CourtIn terms of compromise agreement parties agreed to disposal of appeal in such termsHigh Court by consent of all present disposed of the appealHigh Court directed the office to modify judgment and decree passed by Single Judge of High Court

Disposal of appeal in terms of compromise between the parties was without prejudice to the right and interest of third party, if any, and subject to law, including company law, that would have binding effect between the parties

Intra Court Appeal was disposed of accordingly.

2019 PLD 43 SUPREME-COURT Judicial Precedent

S. 345(6)Penal Code (XLV of 1860), Ss. 302(b) & 338-EQatl-i-amdCompounding of offenceCompromise between partiesConviction and sentence, effect upon

Question as to whether as a consequence of accepting a compromise, the convict's conviction was to be set aside and he be acquitted or instead without setting aside his conviction and acquitting him he was only saved from punishment

[Per Qazi Faez Isa, J (Majority view): When the compromise was accepted it brought to an end the punishment of the offence, but it did not simultaneously result in the setting aside of the conviction and the acquittal of the convict

By accepting the compromise it brought the sentence to an end, but the convict did not secure an automatic acquittal as a consequence thereof

Forgiveness or pardon did not erase or obliterate the crime, it simply withheld the punishment

If the perpetrator of the crime, which had been waived/compounded, was to be acquitted this may only be done after the facts and circumstances of the case had been considered, that was, after hearing the case

Law did not state that the court had to acquit the accused-convict simply because the offence had been waived or compounded

No provision either in the Penal Code, 1860 or the Criminal Procedure Code, 1898, explicitly, or impliedly, mandated that a convict's conviction shall be set aside when the compromise was accepted

Nor could this be done by relying on subsection (6) of S.345, which stated that the composition, "shall have the effect of an acquittal"

Sentence, which followed a conviction, could be brought to an end by the victim or by the victim's heirs by forgiving the convict and this may also be done by an executive pardon, however, neither individuals, who were entitled to compound, nor the executive, which had the power to pardon, could exercise judicial power by setting aside a conviction and or acquit a convict

Previous convictions were also relevant when considering sentencing; whether the maximum punishment be given or any lesser one was determined by taking into consideration the convict's conduct and previous convictions

If, therefore, previous conviction/s were erased (as a result of compromise) the legal provisions (dealing with past conduct of offender and enhanced punishments for previous convictions) would become redundant

His Lordship observed that as a result of improper legal assistance and by not considering certain relevant provisions of Penal Code, 1860 and the Criminal Procedure Code, 1898, the Bench of the Supreme Court in SMC No. 03 of 2017 (PLD 2018 SC 703) incorrectly laid down that "as a result of a successful and complete compounding of a compoundable offence in a case of Ta'zir under S.345, Cr.P.C., with permission or leave of the relevant court where required, an accused person or convict is to be acquitted by the relevant court which acquittal shall erase, efface, obliterate and wash away his alleged or already adjudged guilt in the matter apart from leading to setting aside of his sentence or punishment, if any"

His Lordship referred the present case to the Chief Justice of the Supreme Court for the constitution of larger Bench to settle the issue of effect of a compromise under S.345, Cr.P.C]

[Per Gulzar Ahmed, J, dissenting (Minority view):Judgment of the Supreme Court passed in SMC No. 03 of 2017 (PLD 2018 SC 703) had already settled the issue as to whether compounding of an offence under S.345 Cr.P.C. amounted to acquittal of accused person or not

Said judgment had discussed in great details the effect of compounding of an offence under S.345 Cr.P.C. and in doing so large number of case law from Pakistan as well as foreign jurisdictions was taken into consideration, discussed and a thorough opinion had been expressed that once an offence had been compounded under S.345 Cr.P.C., such compounding resulted into obliteration, removal, pardoning and erasing of the offence resulting into acquittal of the accused or convict

Since the view and opinion in SMC No. 03 of 2017 (PLD 2018 SC 703) was expressed by three member Bench of the Supreme Court, such view had a binding effect on the present and equal three member Bench of the Supreme Court

View expressed by a three member bench of the Supreme Court could only be changed or deviated from by a larger bench for which the forum provided by law was to request the Chief Justice for constitution of a larger bench].

2019 YLR 2183 PESHAWAR-HIGH-COURT Judicial Precedent

Ss.302, 171, 449, 148, 149 & 338-ECriminal Procedure Code (V of 1898), S. 345

Qatl-i-amd, wearing garb or carrying token used by public servant with fraudulent intent, house-trespass in order to commit offence punishable with death, rioting armed with deadly weapon, unlawful assembly

Compounding of offence

Compromise between parties

Appreciation of evidence

Accused charged for the murder of nine persons were sentenced to death on nine counts

Application for acquittal on the basis of compromise was filed by the petitioner-convict

Trial Court recorded statements of some of legal heirs of deceased but some of them did not record their statements, as such provisions contained in S. 345 Cr.P.C. was not fulfilled therefore, application of petitioner-convict under S. 338-E, P.P.C. was turned down

Later on, petitioner-convict filed another application for remission of death penalty on the basis of compromise which was also turned down

Validity

Record showed that application under S. 338-E, P.P.C. filed by petitioner-convict was dismissed by Trial Court in view of S. 345 Cr.P.C., where compromise was not effected by all the legal heirs of nine deceased

Now all the legal heirs of deceased had effected compromise with the petitioner-convict, therefore, petition was allowed and case was remanded to the Trial Court in view of S.338-E(2), P.P.C. for further proceedings.

2017 YLR 134 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss. 302 & 34Anti Terrorism Act (XXVII of 1997), S.7Criminal Procedure Code (V of 1898), S.345Qatl-i-amd, common intention, act of terrorismAccused, a juvenileDeath sentenceCompromise between partiesRemission of sentenceScopeCompromise between accused and legal heirs of the deceasedParties entered into a genuine compromise agreement before the Trial CourtAccused being juvenile was entitled to remissions granted by virtue of Presidential Order, dated 13.12.2001

Compromise between parties was relevant as it would imprint beneficial effects in relations between the parties and promote peace, tranquility and harmony

High Court observed that it would be justified if death sentence inflicted upon petitioner/ accused was to be converted into life imprisonment with all sentences to run concurrently and benefit of S.382-B, Cr.P.C. was also extended to accused

Constitutional petition was allowed accordingly.

2015 CLD 1351 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 144Restitution of pre-decree positionPrincipleCompromise between parties

Applicants sought restitution of suit property which had been sold in execution of decree and possession was also transferred to auction purchaser

Plea raised by applicants was that compromise had been effected between parties, therefore, pre-decree position be restored

Validity

Provisions of S. 144, C.P.C. had no application as it could not apply to a decree being "varied" or "reversed" by a compromise arrived at, even if it was before and was recorded by an appellate Court

Decree being "varied" or "reversed" was an act of court, while compromise was an act of parties

Though there was decree in the latter case but that was only "the compromise agreement to which Judge's order had been superadded"

Applicants did not seek restitution but enforcement of compromise decree, which was different thing altogether

Application was couched in terms that appeared to suggest that what applicants were seeking was to have company's property returned to it, it was clear from actual manner in which they had conducted themselves and sought to make out their case that they sought enforcement of compromise decree

Decree had made it clear that property was to be handed over to applicants

Principle of restitution was not applicable to compromise decree and restitution actually sought was not a reversion to or restoration of status quo ante but creation of new situation

Provision of S. 144, C.P.C. was not applicable

Application was dismissed in circumstances.

2015 YLR 1027 KARACHI-HIGH-COURT-SINDH Judicial Precedent

O.XXIII, R.3Arbitration Act (X of 1940), S. 20ArbitrationDispute resolutionRole of CourtCompromise between parties

During pendency of proceedings under S. 20 of Arbitration Act, 1940, parties entered in compromise and sought disposal of suit under O.XXIII, R.3, C.P.C.

Validity

Court was only gateway to adjudication of dispute between parties and not adjudicator in its own right

Present was not a regular suit under common law and dispute resolution was not possible by Court of law under S.20 of Arbitration Act, 1940

Court was not empowered to examine and even comment on "dispute/issues" between parties, lest it could prejudice case of either party

Provisions of O. XXIII, R.3, C.P.C. were not applicable to arbitration suit under S. 20 of Arbitration Act, 1940

Court appointed sole arbitrator for resolution of dispute between parties in terms of arbitration agreement

Suit was disposed of accordingly.

2015 YLR 1027 KARACHI-HIGH-COURT-SINDH Judicial Precedent

O.XXIII, R.3ContractCompromise between partiesScope

Lawfully entered contracts by and between parties are binding upon them irrespective of placing such contracts before Court of law by means of joint applications under O. XXIII, R. 3 C.P.C.

2015 MLD 804 KARACHI-HIGH-COURT-SINDH Judicial Precedent

O.XXIII, R. 3 & S.151Compromise between partiesWithdrawal of suitRetracting from compromisePast and closed transaction, principle ofApplicability

Parties filed application to withdraw the suit on the basis of compromise but subsequently new incumbent representing defendant Provincial government filed application to withdraw earlier application to withdraw the said suit

Validity

Earlier application was executed and signed by parties including Secretary to the Provincial government by putting his signature and affixing seal of his office thereon, who was then incumbent of that office

Matter in question was past and closed transaction made by government functionaries in their official capacity and the same was binding on all successive incumbents of that office

Defendant government was unable to satisfy High Court as to how and under what law the successor incumbents in the office concerned could retract compromise application signed and filed by his predecessor in office, which was further authenticated by him by putting seal of office thereon

High Court dismissed application filed by the defendant government as it was nothing more than an arm twisting tactic of newly appointed incumbent in the office of Provincial government for ulterior motives and mala fide intentions to pester plaintiff into submission of his demands

Application, to withdraw the suit on the basis of compromise, was filed and signed by plaintiffs and concerned official of Provincial government had affixed seal of his office with his signatures

High Court granted application under O. XXIII, R. 3, C.P.C. in accordance with the terms and conditions contemplated therein

Suit was dismissed as compromised in circumstances.

2014 SCMR 1155 SUPREME-COURT Judicial Precedent

Ss. 302 & 311Criminal Procedure Code (V of 1898), S. 345Qatl-e-amdCompromise between partiesCompounding of right of "Qisas" by legal heirs of the deceasedOffence not constituting "fasad-fil-arz"

Once a genuine compromise was effected between the parties and the legal heirs of the deceased were compensated and when no clear case of offence constituting "fasad-fil-arz" was made out, then on acceptance of the compromise, the accused was entitled to acquittal, on such ground alone

Illustration.

2014 SCMR 1155 SUPREME-COURT Judicial Precedent

Ss. 302 & 311Criminal Procedure Code (V of 1898), S. 345Qatl-e-amdReappraisal of evidenceCompromise between partiesCompounding of right of "Qisas" by legal heirs of the deceasedOffence not constituting "fasad-fil-arz"Accused were convicted and sentenced for murder of deceased

During pendency of appeal before the High Court, compromise was effected between the parties, which was duly verified to be genuine by the Trial Court

High Court, however held that present case was of the nature which fell within the definition of fasad-fil-arz and because the accused acted in a brutal manner, the crime committed was outrageous to public conscious, therefore, compounding right of "Qisas" by the 'walis' would not completely exonerate the accused nor could they go without any punishment

High Court convicted the accused under S.311, P.P.C. despite the compromise effected between the parties

Validity

Section 311, P.P.C. was attracted in cases punishable with "Qisas" and not to cases punishable under "Ta'azir"

Section 302, P.P.C. was compoundable in view of provisions of S. 345, Cr.P.C.

Accused entered into a genuine compromise with the complainant/legal heirs of deceased

No clear evidence was available to constitute the offence involving the element/mischief of fasad-fil-arz, thus the High Court was not justified in law to convert the punishment of the accused to one under S. 311, P.P.C instead of acquitting them on the basis of compromise

High Court had committed a legal error in convicting and sentencing the accused for crime under S. 311, P.P.C., which caused serious miscarriage of justice

Appeal was allowed on the basis of compromise, and accused were acquitted of the charge levelled against them.

2014 SCMR 669 SUPREME-COURT Judicial Precedent

Ss. 115 & 12(2)Civil revisionCompromise between partiesConsent decreeDismissal of civil revision on merits despite such consent decreeLegality

Appellant had filed civil revision before the High Court during pendency of which both parties compromised and a consent decree was passed

Subsequent to the consent decree, respondent filed an application under S. 12(2), C.P.C., challenging the consent decree/compromise, whereafter High Court decided the civil revision on merits

Validity

Application of respondent under S.12(2), C.P.C. was not decided

Without the compromise judgment and decree being set aside under S. 12(2), C.P.C., no order could be passed on merits

Impugned judgment of High Court whereby it decided the civil revision on merits was set aside in circumstances and Supreme Court directed that application filed by respondent under S. 12(2), C.P.C., shall remain pending with the High Court and shall be decided at the earliest

Appeal was disposed of accordingly.

2014 CLD 773 KARACHI-HIGH-COURT-SINDH Judicial Precedent

O. XXIII, R. 3ContractCompromise between partiesScope

Lawfully entered contracts by and between parties are binding upon them irrespective of placing such contracts before court of law by means of joint applications under O. XXIII, R. 3, C.P.C.

2014 CLD 773 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 20Civil Procedure Code (V of 1908), O. XXIII, R.3ArbitrationDispute resolutionRole of courtCompromise between parties

During pendency of proceedings under S.20 of Arbitration Act, 1940, parties entered in compromise and sought disposal of suit under O. XXIII, R. 3, C.P.C.

Validity

Court was only gateway to adjudication of dispute between parties and not adjudicator in its own right

Present was not a regular suit under common law and dispute resolution was not possible by court of law under S.20 of Arbitration Act, 1940

Court was not empowered to examine and even comment on "dispute/issues" between parties, lest it could prejudice case of either party

Provisions of O.XXII, R. 3, C.P.C. were not applicable to arbitration suit under S.20 of Arbitration Act, 1940

Court appointed sole arbitrator for resolution of dispute between parties in terms of arbitration agreement

Suit was disposed of accordingly.

2013 PCrLJ 398 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss. 426 & 345Penal Code (XLV of 1860), Ss. 376/34Rape, common intentionOffence not compoundableCompromise between partiesComplainant and victim filing affidavits and not objecting to suspension of sentence and release on bailEffect

Contentions of the accused persons were that the parties had compounded the offence; that the complainant and victim had filed affidavits wherein they had forgiven the accused persons in the name of Allah; that although the offence was not compoundable but superior courts had taken a lenient view in cases wherein the parties had effected compromise

Validity

Complainant and victim had extended no objection in the shape of affidavits to the suspension of sentence awarded to the accused persons and their release on bail

Sentence awarded to the accused persons was suspended, in circumstances, and they were released on bail.