JUDGMENT ABDUS SATTAR ASGHAR, J. This is an appeal under section 417(2-A), Cr.P.C. Against the order dated 4-9-2009 passed by the learned Magistrate Section 30 Bahawalnagar whereby respondents No.1 to 6/accused in case F.I.R. No.465 of 2009, dated 19-5-2009, under sections 452/506-B/ 447/ 511/ 429/ 148/ 149, P.P.C., Police Station City Bahawalnagar were acquitted under section 249-A, Cr.P.C.
2. In this case F.I.R. Was lodged on the application of Muhammad Farooq complainant alleging that about one and half years back he had rented out his house to Khalida Inam sister of Inam-ul-Haq Gouri resident of Khadimabad; that a civil suit regarding dispute of said house against Shahbaz and others was pending in the Civil Court; that same day at 11-00 p.m. When he reached home he saw that accused Muhammad Shahbaz armed with pump action.12-bore, Muhammad Ishfaq armed with pistol.30 bore, Muhammad Irshad armed with `Sota' Muhammad Tayyab, Muhammad Tahir and Muhammad Tariq armed with `Soties' along with three unknown persons while breaking the common wall of-the house entered into his house causing threats to his life and attempted to obtain possession of the house; that on his hue and cry P.Ws. Muhammad Mushtaq and Murad attracted to the spot and witnessed the occurrence; that all the accused in armed position while breaking wall of his house forcibly trespassed in furtherance of common intention and made an attempt to take possession of the house.
3. The accused were found guilty in the police investigation and challaned under section 173, Cr.P.C.
After receipt of challan, they were formally charge-sheeted on 26-6-2009 under sections 452, 447, 511, 506-B, 427, 148 and 149, P.P.C. By the learned Magistrate Section 30 Bahawalnagar to which they pleaded not guilty and claimed to be tried. The case was fixed for prosecution evidence on 24-7- 2009 when accused lodged an application under section 249-A, Cr.P.C. Alleging that the complainant has entered into a compromise with the accused at the bail stage by filing affidavit, therefore, they deserve acquittal in terms of section 249-A, Cr.P.C. On the next date i.e. 4-9-2009 learned trial court after hearing the arguments of the parties while taking reliance upon certified copy of the order passed by learned Additional Sessions Judge, Bahawalnagar, the affidavit of the complainant and statement of the complainant in the civil court, observed that complainant had already effected compromise with the accused and that the main offences are also compoundable. He further observed that there was no probability of conviction of accused in this case, therefore, application was accepted and accused were acquitted under section 249-A, Cr.P.C.
4. Learned counsel for the appellant has argued that impugned order of acquittal is against law and facts; that offences mentioned in the F.I.R. And in the charge-sheet are not compoundable; that compounding the offence at bail stage is not applicable during the trial for the simple reason that offences cannot be compounded without permission of the trial court; that learned trial court has lost sight of ' the relevant provisions of law while granting the impugned acquittal in favour of the accused.
5. On the other hand, learned counsel for the respondents has contended that complainant Muhammad Farooq while appearing before the learned Civil Judge, Bahawalnagar as defendant in a suit for possession through pre-emption categorically made a statement on 12-6-2009 that if the plaintiff Zubaida Bibi withdraws her suit he will be bound to make a statement for acquittal of, the accused in case F.I.R. No.465 of 2009, Police Station City Bahawalnagar; that suit for possession through pre-emption was accordingly dismissed as withdrawn in the light of the statement of the parties; that learned trial court taking notice of the above statement of the complainant has rightly granted the acquittal in favour of the accused in terms of section 249-A, Cr.P.C. Through the impugned order.
6. I have given patient hearing to the learned counsel for the parties, learned Deputy Prosecutor- General for the State and also gone through the record.
7. Perusal of the record reveals that although Muhammad Farooq complainant had lodged an affidavit in favour of accused at bail stage, however, contents of, the affidavit transpire that the said compromise was merely for grant of concession of bail to the accused. It does not bear any reference with regard to compounding of offence with the accused. Even before the learned Civil Judge Bahawalnagar during the proceedings in the suit for possession through pre-emption he had made a statement binding himself to appear before the learned trial court to make a statement in favour of the accused for their acquittal in case F.I.R. No.465 of 2009, Police Station City Bahawalnagar. Therefore, keeping in view the provisions of section 345, Cr.P.C. It was incumbent upon the trial court to procure the attendance of the complainant for recording of his compounding statement with regard to compoundable offences charged against the accused. An affidavit made by the complainant at bail stage or a statement made by him before the learned Civil Court cannot be made basis for acquittal' of the accused under section 249-A, Cr.P.C Neither an affidavit made at the bail stage nor a statement made by the complainant in the civil court can be termed as a substitute of his statement required to be recorded by the learned trial court for its satisfaction Regarding authentication of compromise in terms of section 345, Cr.P.C. Reliance be made upon Muhammad Akram v. Abdul Waheed and 3 others (2005 SCM R 1342).
8. In view of above facts and reasons, impugned order of acquittal under section 249-A, Cr.P.C. Is illegal and unjustified which cannot sustain in the eye of law. As a sequel to the above, this appeal is accepted, the impugned order of acquittal dated 4-9-2009 is set aside and the case is remanded back to the learned trial Court for fresh trial in accordance with law.