MALIK HAQ NAWAZ, J.---The respondents were booked for the above offences vide FIR No, 59/2012 registered under sections 302/ 34/324/109/337(E), P.P.C. 3/4 Explosive Substances Act read with sections 6/7, ATA-1997.
2. During pendency of the case the parties effected a compromise and the respondents were acquitted from the charges on the basis of compromise vide order dated 28-04-2016.
3. The State being aggrieved from the order of acquittal which was passed on an application under section 265-K, Cr.P.C. has challenged the same on the ground that the compromise is defective as some persons, who have no locus standi to effect a compromise have appeared in trial Court and got recorded their statements, on behalf of real legal heirs of deceased as well as some injured persons. The learned Dy. Advocate General has quoted 04 such instances where such illegalities are apparent and have been committed by the learned trial Court.
4. The learned Dy. Advocate General filed Criminal Appeal No,26/2016 for setting aside the order of acquittal Paras 3, 4, 5 and 7 of the petition are relevant and are reproduced:-
3. That one Muhammad Rafique received injuries during the occurrence but the said injured not appeared before learned trial Court and not effected any compromise with the accused/ respondents. But one Farman Ali son of Hakim Khan resident of Goner Faram appear before the trial Court on 30-11-2015 and recorded his statement on behalf of injured Muhammad Rafique.
Stating that the injured is my cousin and with consent of the injured I effected compromise with the accused and pardoned them and not want to prosecute in such like cases. Only victim is competent to forgive the accused and the cousin of the injured/victim is not competent to effect compromise with the accused. Hence compromise between the parties is defective in nature and impugned order dated 28-04-2016 is not maintainable in the eyes of law and liable to set aside.
4. That one Attaullah son of Shahzada Khan resident of Goner Faram has been murdered in the instant case. On 30-11-2012 one Waqar Ahmad son of Shahzada Khan real brother of deceased appeared before the learned trial Court and stated that I have 3 brothers and 5 sisters and their mother is alive. In presence of mother of deceased the brother of deceased is not competent to forgive the accused and effect compromise with the accused. Hence compromise between the parties is defective in nature and impugned order dated 28-04-2016 is not maintainable in the eyes of law and liable to set aside.
5. That one Riaz Ahmad son of Abdul Khalil resident of Chamugar Colony appeared before the learned trial Court that on 30-11-2015 and stated that with the consent of my real son I effected compromise with the accused. Mother of the injured is also alive and the injured is student and studying at Abbottabad.
7. That one Fazal Rabi son of Badshah son of Tangir appeared before the learned trial Court on 30- 11-2015 and stated that my real brother Abdul Saleem was injured in the said occurrence and I being real brother injured effected compromise with the accused/respondents. Such like statement has no weight in the eyes of law. Hence impugned order dated 28-04-2016 is not maintainable in the eyes of law and liable to set aside.
5. We scanned the file and found that besides the above mentioned persons one Javed Ahmed father of Kamaran Javed (injured) appeared and got recorded his statement and stated that his son is studying in Taxila. Likewise one Amanatullah appeared on behalf of his injured son Himayatullah and stated that his son is studying in Islamabad. Their statements were recorded on 30-11-2015.
6. The learned Dy. Advocate General did not mention the name of above two persons in his petition, we depreciate the irresponsible attitude of Dy. Advocate General, who is so inefficient and lethargic in his official duties. He by his conduct has shifted the burden on Court and if we have not taken pain to scrutinize the file another illegality was bound to be committed in the proceeding by this Court. It would have been appropriate to issue a show-cause notice to Dy. Advocate General but we restrained ourselves and issue a word of caution to him to be careful in future.
7. The learned counsel for the respondent defended the judgment.
8. Without further commenting on the grounds raised at bar by the parties, we feel that there is an inherent defect in the compromise which cannot be cured by any means. Section 345(2), Cr.P.C. does not permit such a proxy on behalf of any victim.
9. In view of above, we accepted the appeal set aside the order of acquittal passed by the learned trial Court on 25-04-2015, but we partially remand the case only up to the extent of following:- a. Muhammad Rafiq resident of Oonar farm (injured) his cousin Farman All appeared on his behalf.
He be called and his statement be recorded in Court. b. Instead of legal heirs of deceased Attaullah son of Shehzada Khan one Waqar his real brother appeared before the trial court. His legal heirs should be called and their statements be recorded. c. Babar Ahmed (injured) his father Riaz Ahmed appeared on his behalf, who was not competent to record his statement. d. Instead of injured Abdul Salam his brother Fazal-e-Rabbi appeared on his behalf, which is not permissible under law. e. Instead of injured Kamaran Javed his father appeared on his behalf. He be summoned for recording statement. f. Likewise instead of injured Hamyatullah his father Amanatullah appeared and got recorded his statement.
10. The trial court is directed to summon the above mentioned persons/their legal heirs (in case of death) record their statements and then pass appropriate orders after hearing the parties in accordance with law. Since parties have effected a compromise, the learned trial Court shall direct respective SSP of the district concerned to ensure production of above named persons before the Court. The trial Court will dispose of the case within 03 months and completion report will be submitted to the Registrar Chief Court, who will place the same before us in chamber for perusal/necessary orders if needed.
11.The appeal is disposed of in the above terms.