' SALAHUDDIN PANHWAR, J.---Through instant Misc. Application(s) No.1895 and 1896 of 2014; under section 345(2), Cr.P.C. (permission to compound) and under section 345 (6) Cr. P. C, appellant seeks acquittal on compromise in this appeal, filed against sentences:--
(i) Under section 302(b), P.P.C. To suffer imprisonment for life and to pay Rs.100,000/- as compensation to the heirs of deceased Allah Bux as required under section 544-A, Cr.P.C. And in default thereof to suffer one year more;
(ii) Under section 459, P.P.C. To suffer for five years' R.I;
(iii) Under section 337-A(i), P.P.C. To suffer R.I. For two years and to pay Rs.50,000/- as Daman to injured Muhammad Ali and in default to undergo for six months more;
(iv) Under section 337-F(i), P.P.C. To suffer for one year and to pay Daman Rs. 30,000/- to injured Muhammad Ali and in default to suffer six months more.
SO awarded by learned 2nd Addl. Sessions Judge, Badin in SC No.44 of 2001 "Re-S/v Muharram alias Maroo'.
2. The compromise application(s) were sent to learned 2nd Addl. Sessions Judge, Badin for purpose of inquiry regarding genuineness of the compromise.
3. It reveals that 2nd Addl. Sessions Judge, Badin after completing the inquiry submitted the inquiry report vide his letter No.85 of 2014 dated 09.4.2014 and matter was taken up by this Court on 02.6.2014 with following order:-- 'It appears from the above report that all the necessary formalities were completed by the learned trial Court. Today also the widow, four sons and four daughters of the deceased are in attendance before this Court and they support the compromise arrived at by them with the appellant. They claim no compensation or qisas and diyat and state that they have pardoned the appellant in the name of Almighty ALLAH. The compromise entered into by the appellant and the legal heirs of the deceased seems to be genuine and voluntary'
Learned D. P. G appearing for the State has therefore, no objection to the compromise of the parties. He however, submits that the learned counsel for the appellant has to produce the relevant law that offence under section 459, P.P.C. Under which also the conviction was awarded can be compounded or ignored in view of the compromise for the offence under section 302(b), P.P.C. And whether the amount of Daman and the compensation can be allowed to be waived by the legal heirs of the deceased' (Underlining has been supplied for emphasis)
4. Learned counsel for the appellant has argued that main offence has been compounded hence the offence under Section 459, P.P.C. And convictions, awarded Under Sections 337-A(i) and 337- F(i), P.P.C. Stood merged therein hence compromise can competently been accepted. In support of his contention he placed reliance on the case laws, reported as 2004 PCr.LJ 736; 2007 MLD 1269; and PLD 2008 Karachi 420. Regarding the compensation, awarded Under Section 544-A, Cr.P.C., the counsel requested for reduction therein as appellant is a poor fellow and has been in continuous custody more than a period of 10 years.
5. On the other hand, the learned Deputy Prosecutor General opposed the above contention of learned counsel for appellant. He insisted that since the Section 459, P.P.C. Is not compoundable hence the same cannot be allowed to be compounded.
6. I have considered the arguments of respective sides and have also gone through the available record.
7. The proposition, involved can be worded as:-- Whether the Court can permit compounding of a non-compoundable offence?
There can be no denial to the legal position that all the application (s) for compromise are made and entertained, are to be decided within the four corners of the Section 345, Cr.P.C. The Section 345, Cr.P.C. Itself has chalked out the offence(s) which can be compounded. Further, the Section 345(7) of the Code has made importance and object of such tabled offences by saying that:-- 345(7). No offence shall be compounded except as provided by this section.
Thus, by plain reading of above it is manifest that the language of the Section 345(7) of the Code is very simple and needs no expertise to understand the fact that 'no offence shall be compounded which is not so permitted by this Section i.e. 345 of the Code' . This identical question was resolved by the Honourable Supreme Court in the case of Muhammad Rawab v. State (2004 SCMR 1170) wherein the Honourable Supreme Court held as:-- ' There is no denying the fact that section 365-A, P.P.C. Read with section 7(e) of the Anti-Terrorsim Act, 1997 is not compoundable. The provisions as contained in section 345(7) have been couched in such a plain and simple language that there is hardly any scope for any interpretation except that a non-compoundable offence cannot be made compoundable by this Court for the simple reason that no amendment, deletion, insertion or addition could be made by this Court and it could only be done by the Legislature as this aspect of the matter falls in its exclusive domain of jurisdiction.
' The provisions as contained in section 345, Cr.P.C. Cannot be stretched too far by including the non-compoundable offence therein under the garb of humanitarian grounds or any other extraneous consideration. The offences committed by the appellant are not of grave and alarming nature but the same are against the society as a whole and cannot be permitted to compound by any individual on any score whatsoever. It may be noted that tabulation of the offences as made under section 345, Cr.P.C. Being unambiguous remove all doubts, uncertainty and must be taken as complete and comprehensive guide for compounding the offence. The judicial consensus seems to be that "The Legislature has laid down in this section the test for determining the classes of offences which concern individuals only as distinguished from those which have reference to the interests of the State and Courts of law cannot go beyond the test and substitute for it one of their own. It is against public policy to compound a non- compoundable offence keeping in view the state of facts existing on the date of application to compound. No offences shall be compounded except where the provisions of section 345, Cr.P.C. Are satisfied as to all matters mentioned in the section. (Underlining has been provide for emphasis)
8. At this juncture, it is necessary to -appreciate that an offence against individual cannot be equated with that of an offence against the society, therefore, an individual shall have no right to compound the offence which, in fact, was against the society and not against him. The section 459, P.P.C. Is an independent offence which provides a punishment as:--# 'shall be punished with imprisonment for life or imprisonment of either description for a term which may extend to ten years, and shall also be liable to the same punishment for committing qatl or causing hurt or attempting to cause Qatl or hurt Bare perusal of above, it is patent that this is an independent offence which has got its own punishment in addition to punishment for committing Qatl or causing hurt or attempt to cause Qatl or hurt, therefore, significant to state that this offence shall not stand merged into main offence. Worth to add here that "one is tried for two different offences and awarded punishment (s) in both of them then how competence of one to compound one offence can affect the legality of sentence awarded for other independent offence by a competent court of law. Besides, likelihood of failure of prosecution to prove the charge is no ground to make a non-compoundable offence as 'compoundable' because an attempt to compound offence, even if fails, brings no consequence on merits of the case, however, failure of prosecution/ complainant to establish the charge may give certain rights to accused against the complainant/prosecution. Accordingly, in view of above discussion and guidelines, so provided by the Honourable Supreme Court of Pakistan with specific reference to Section 345(7) of the Code, I feel myself quite justified in responding the proposition in 'negation'.
9. Now, I would revert to another question, involved in the matter regarding the sentences, awarded by trial Court, under sections 337-A(i) and 337-F(i), P.P.C., including 'daman'. The sections 337-A(i) and 337-F(i) provide the punishment as:-- 'shall be liable to daman and may also be punished with imprisonment ' Both these offence (s) are shown as compoundable by the section 345 of the Code by 'the person to whom hurt is caused'. Thus, competent person can competently compound the offence even at appellate stage. In the instant matter the 'hurt was caused to Muhammad Ali' who is also one of the legal heirs of the deceased Allah Bux. This Muhammad Ali has been one of the signatories of compromise application (s) whereby consenting to acquittal of appellant/convict from 'charge' and even he in his statement, recorded by Inquiry Officer (2nd Additional Sessions Judge, Badin) stated as:-- ...I have patched up with the accused with my own freewill and consent. I have not claimed any compensation. I have no objection if the applications are allowed and accused are acquitted from the charge of this case'
' This shows that Muhammad Ali (injured) has consented to acquittal of the appellant/convict from charge which also includes conviction under sections 337-A(i) and 337-F(i), P.P.C., therefore, it would be in the interest of justice to treat such statement as having been effective for all permissible convictions (offences).
10. In view of above discussion, the compromise is accepted to extent of convictions awarded under section 302(b), P.P.C., sections 337-A(i) and 337-1 F(i), P.P.C. While for offence Under Section 459, P.P.C. The same is declined.
11. As regard the compensation, awarded under Section 544-A, Cr.P.C., it would suffice to say that after conviction the person, so specified in relevant column of section 345(1) of the Code, though continues to compound the offence but such competence shall not authorize him to waive the compensation, awarded under section 544-A, Cr.P.C. It would be significant to refer the dictum of Honourable Supreme Court in case of Muhammad Tufail v. Sessions Judge, Attock (PLD 2004 SC 89), wherein it was held that:- 'Under Section 544-A, Cr.P.C. There is no such proviso whereby such recovery in respect of compensation when awarded could be written off or waived even if substantive sentence are served out'
In the case of Umer Hayat v. The State (1990 PCr.LJ 125) it was laid down that:-- 'compensation required to be paid under section 544-A, Cr.P.C. To the victim of aggression, by a convict, is in the form of an additional burden on him, to any sentence, which he is visited with and needs to be assessed and imposed independently of the sentence of fine so levied'
12. This being an additional burden is not equal to the 'punishment provided by an offence itself' therefore, a competent person, per Section 345, Cr.P.C., cannot legally waive or write off the same However, since the compensation is to be determined having regard to the circumstances of the case. The parties, including those entitled to such compensation, have patched up therefore, it would meet the ends of justice to reduce the compensation from Rs.100,000/- to Rs.50,000/- which would be payable through four installments quarterly because the law is that compensation cannot be waived but could be reduced. Reference, if any, can well be made to case of Shahzad Ahmed alias Mitho and another v. The State (2005 PCr.11 1316). .13. It is pertinent to add here that since the appellant, per Jail Roll dated 22.10.2012, completed a sentence of 10 years six months and 05 days. The conviction, awarded to appellant for offence Under Section 459, P.P.C. Was for five years which is much less than the period served by the appellant. Accordingly, the Jail authorities are hereby directed to release the appellant forthwith, if he is not required in any other case crime, under intimation to this Court within two days from receipt of the letter. Further, jail authorities are hereby directed that they shall get P.R. Bond of appellant with regard to the compensation to be paid quarterly. In case of failure, same would be recovered as land revenue arrears.
14. The appeal to extent of legality of conviction under section 459, P.P.C. Shall be pending.