' MUHAMMAD ALI MAZHAR, J.---By this Criminal Revision Application, the applicant has challenged the order passed by the learned Additional Sessions Judge, Gambat, on 15-10-2011, in Session Case No,54 of 2005, whereby the compromise application moved by parties under Section 345, Cr.P.C.
Was returned for presentation before the competent court having jurisdiction. The reason for returning the application was that since no matter is pending in his file and keeping in view the bar contained under subsection (2) and subsection (7) of 345 Cr.P.0 he could not entertain the compromise application.
2. The brief facts of the case are that the applicant was convicted for life imprisonment vide judgment dated 25-8-2007 passed by the learned Additional Sessions Judge, Gambat, in Session Case No, 54 of 2005. The applicant had filed Criminal Jail. Appeal No, 65 of 2007 in this Court which was dismissed vide judgment dated 4-6-2010 and the conviction awarded to the applicant was maintained. After dismissal of criminal jail appeaj, parties decided to enter into a compromise but the compromise application was returned on the ground that since no case is pending before the trial court therefore, the applicant may institute the same in a competent court. The prerequisites for compounding the offences are provided under section 345, Cr.P.C. In which subsection (2) endows with that offences may be compounded with the permission of the court before which any prosecution for such offence is pending. This provision relates to the compounding of offences with the permission of the court before which prosecution for such offences is pending which obviously means the trial court. Concomitantly, subsection (5) provides that when an appeal is, pending no composition for offence shall be allowed without the leave of the court before which the appeal is to be heard and subsection (5-A) commands that High Court in exercise of its power under section 439 and a Court of Sessions so acting under section 439-A may also allow any person to compound any offence which he is competent to compound under this section. For ready reference subsection (2), subsections (5) and (5-A) of section 345, Cr.P.C, are reproduced as under:--
(2) The offences punishable under the sections of the Pakistan Penal Code specified in the first two columns of the table next following may, with the permission of the Court before which any prosecution for such offence is pending, be compounded by the persons mentioned in third column of that table:-- "(5) When the accused has been convicted and an appeal is pending, no composition for the offence shall be allowed without the leave of the Court before which the appeal is to be heard. .........................................................................
(5-A) A High Conn acting in the exercise of its powers of revision under section 439 and a Court of Session so acting under section 439-A, may allow any person to compound any offence which he is competent to compound under this section."
3. Subject to the provisions of section 345, Cr.P.C. All offences punishable under Chapter XVI, Pakistan Penal Code may be waived or compounded in the manner as provided under section 338-E of P.P.C. Which reads as under:- "338-E. Waiver or compounding of offences:
1. Subject to the provisions of this Chapter and section 345 of the Code of Criminal Procedure, 1898 (V of 1894 all offences under this Chapter may be waived or compounded and the provisions of sections 309 and 310 shall, mutatis mutandis, apply to the waiver or compounding of such offences: ' Provided that, where an offence has been waived or compounded, the Court may, in its discretion having regard to the facts and circumstances of the case, acquit or award tazir to the offender according to the nature of the offence: ' Provided further that where an offence under this Chapter has been committed in the name or on the pretext of honor, such offence may be waived or compounded subject to such conditions as the Court may deem fit to impose with the consent of the parties having regard to the facts and circumstances of the case.
2. All questions relating to waiver or compounding of an offence or awarding of punishment under Section 310,. Whether before or after the passing of any sentence, shall be determined by trial Court: Provided that where the sentence of qisas or any other sentence is waived or compounded during the pendency of an appeal, such questions may be determined by the appellate Court"
4. It is clear from the conditions of waiver or compounding the offences provided under section 338-E of Pakistan Penal Code that all questions relating to waiver or compounding of offences whether before or after passing of any sentence shall be determined by the trial court therefore, for all practical purposes and under the mandate of law it is only a trial court which shall determine all questions relating to waiver or compounding of offences. However, in case of pendency of an appeal no composition for the offences can be allowed without leave of the court before which appeal is to be heard.
5. In the present case, jail appeal was preferred but it was dismissed and conviction was maintained therefore, after dismissal of appeal only the trial court has jurisdiction to determine and allow the compromise application between the parties. It is clear that although offence can be compounded by parties with the permission of court before which any prosecution for such offence is pending, yet concept of waiving right of Qisas or compounding offences is not restricted only to cases pending before court but those provisions invoked at any time before execution of sentence and court is always competent to entertain and give effect to compromise between the parties even after decision of case would not become functus officio in the matters of compromise.
6. At this juncture I would like to refer to judgment of honourable Supreme Court reported in PLD 1996 SC 178 (Nazak Hussain v. State) in which the honorable court considered sections 309, 310 and 338-E of Pakistan Penal Code and also formulated guidelines for subordinate Courts which are as under:- For the guidance of the subordinate Courts and the citizens, it is hereby laid down that--
(i) in case of Qatl-e-amd, if the right of Qisas is waived without any compensation, or compromise is arrived at between the parties i,e, accused and the adult legal heirs of the deceased, during the pendency of trial, the application for permission to compound the offence shall be made before the trial Court who shall determine all questions relating to waiver or compounding of an offence or awarding punishment under section 310, P.P.C.
(ii) In case of Qatl-e-Amd, if the right of Qisas is waived without any compensation or the legal heirs of the deceased compound their right of Qisas within the meanings of sections 309 and 310, P.P.C., during the pendency of appeal, applications for permission to compound the offence shall be made before the appellate Court, who shall determine all questions relating to waiver or compounding of an offence or awarding punishment under section 310, P.P.C.
(iii) Under section 338-E(1), P.P.C., subject to the provisions of, Chapter XLV and section 345 of the Code of Criminal Procedure, all offences under Chapter XLV, P.P.C. Relating to homicide and hurt may be waived or compounded and the provisions of sections 309 and 310, P.P.C. Shall, mutatis mutandis, apply to the waiver or compounding of such offences. So, if any offence under Chapter XLV affecting the human body is waived or compounded after the decision by the trial Court or the decision of appeal, if any, an application for permission to waive or compound the offence shall lie before the trial Court which shall determine all questions relating to the waiver or compounding of an offence or awarding of punishment under section 310, P.P.C,, and if the trial Court is convinced that the waiver of right of qisas or compounding of an offence punishable under Chapter XLV is genuine and in order, it shall acquit the accused.
(iv) If a question arises as to whether any person is or is not the legal heir of the deceased, such question shall be determined by the Court competent to receive application on the basis of waiver or compromise between the parties.
(v) For the purpose of determination of questions relating to the, wavier or compounding of an offence, the accused and the legal heirs of the deceased shall be treated parties to the proceedings under section 338-E(1), P.P.C.
7. In the case of Ghualm Hazrat, his conviction was upheld up to the level of Supreme Court and thereafter compromise application was filed in the Peshawar High Court and the learned Divisional Bench disposed of the criminal miscellaneous application with the observation that against appeal being not pending before High Court, application for compounding of offences could not be entertained by High Court which lay before the trial court in view of the guidelines provided by the honourable Supreme Court in PLD 1996 Page 178. The said application was subsequently dismissed as withdrawn with permission to accused to approach the trial court in accordance with the law.
Reference can be made to 1996 PCr.LJ 1177.
8. So far as the compounding offences with the permission of the court where prosecution is pending or leave of the court before which the appeal is to be heard is concerned, the compromise may be accepted and acted upon regarding which there is no doubt or dispute left any more. It is a matter of contrivance through which a party has to be subjected to compromise and it will be no compromise at all, if the court has any doubt that the compromise is tainted with pressure, coercion, undue influence, blackmail, extortion or similar other infirmities it shall have to be rejected without much of arguments or discussions. Honourable Supreme Court in a judgment reported in PLD 2010 SC 938 (Naseem Akhtar v. State) held that the object requiring leave from the Court as per the clear intention of the legislators is neither meaningless nor purposeless and it can not be construed that while considering the compromise plea; even of a compromise which is lawfully entered, by free consent of the legal heirs, the court, should act in a mechanical manner and allow the same as a matter of course or routine, should sit as a silent spectator or to conduct as a post office simplicitor and affix a judicial stamp upon it. Rather it is the duty and the prerogative of the court to determine the fitness of the case for the endorsement and sanction of the compromise and in appropriate cases, where the compromiser and offender is directly or indirectly beneficiary of the crime, the offence is committed or is caused thereof, for an obvious object of grabbing the property of the deceased by the compromiser through his offspring, who may ultimately benefits himself (the offender) as well, the court may refuse to give an effect to such a deal. Specially coupled with the scenario when the offence is gruesome, brutal, cruel, appalling, odious, gross and repulsive which causes terror and sensation in the society.
9. As a result of above' discussions this criminal revision application is allowed, the impugned order dated 15-10-2011 is set aside. Let compromise application under section 345, Cr.P.0 be filed by the applicant/parties in the trial court and if any such application is filed, the same will be entertained and decided by the trial court in accordance with the Law.