MUHAMMAD SALEEM JESSAR, J.---By this single judgment, I propose to dispose of abovesaid Criminal Revision and Cr. Misc. Application together, as both the cases have arisen out of one and the same incident; besides, both the cases have been filed by same applicant namely, Mehboob Ali.
2. Through criminal revision application, applicant Mehboob Ali has assailed Judgment dated 11.11.2019 passed by learned 2nd Additional Sessions Judge, Badin in Criminal Appeal No.14/2019 (re- Mehboob Ali v. The State), whereby he dismissed abovesaid Criminal Appeal and maintained the judgment dated 26.10.2019 passed by learned Civil Judge and Judicial Magistrate, Badin in Criminal Case No.14 of 2019 (re: The State v. Mehboob Ali and others) being outcome of FIR No.22/2019 registered at Police Station Nindo under sections 438, 506/2 and 337-H(2)/34, P.P.C., whereby he convicted appellant Mehboob Ali for offence punishable under section 456, P.P.C. and sentenced him to undergo simple imprisonment for two (2) years and to pay fine of Rs.15000/- (Rupees Fifteen thousand only) and in case of non-payment of fine, he was ordered to remain in jail for one month more. However, the appellant was extended benefit of section 382-B, Cr.P.C. By the same judgment, trial court acquitted co-accused Ghulam Nabi son of Razique Dino Dasti and Allah Bachayo son of Sher Muhammad Dasti by giving, them benefit of doubt.
3. The Cr. Misc. Application No.5-532 of 2019 has been filed by the applicant/accused for setting aside order dated. 10.10.2019 passed by learned 2nd Additional Sessions Judge, Badin/Ex-Officio Justice of Peace in Cr. Misc. Application filed by the applicant/accused Mehboob Ali for issuing direction to SHO, Police Station Nindo to lodge his FIR against respondent Ghulam Hussain, who is complainant in instant Criminal Revision Application, and others, whereby he dismissed said Cr.
Misc. Application under section 22-A(6)(i), Cr. P.C.
4. Brief facts, relevant for the purpose of deciding instant Cr. Revision Application and Cr. Misc.
Application, are that on 05.03.2019, at about 0030 hours, in the night time, complainant Ghulam Hussain was charging his mobile phone, when he saw in the electric light that three persons viz. present applicant Mehboob Ali and acquitted accused Ghulam Nabi and Allah Bachayo were present in his cattle pond which was situated beside his house at Village Muhammad Hashim Jat, Deh Dasti City Nindo. He instantly got woke up his relatives namely, Qurban Ali and Dodo. Then, they encircled the accused and caught hold of accused Mehboob Ali Dasti along with lathi, whereas accused Ghulam Nabi, duly armed with gun and accused Allah Bachayo having hatchet in his hand, by making aerial firing and extending threats made their escape good. Thereafter, complainant went to police station and lodged FIR with the allegation that accused persons committed lurking house trespass by night by entering into the cattle pen within the compound of his house after sunset with intent to commit offence.
5. After completing investigation police submitted challan before the learned trial Court against applicant and co-accused Ghulam Nabi and Allah Bachayo. Thereafter, a formal charge was framed against the accused vide Ex.2, to which they pleaded not guilty and claimed to be tried vide their Pleas Ex.2/A to Ex.2/C respectively.
6. In order to prove its case, prosecution examined PW.1 complainant Ghulam Hussain at Ex.03, who produced FIR as Ex.3/A. PW.2 Qurban Ali was examined at Ex.4, while PW.3 mashir Muhammad Juman was examined at Ex.5, who produced mashirnamas as Ex.5/A and 5/B. PW.4 Dodo Jat was examined at Ex.6. whereas PW-5 Dr. Abdul Rehman Khatri was examined at Ex.7, who produced police letter, provisional and final medico-legal certificates and letter addressed to Civil Surgeon as Ex.7/A to 7/D respectively. PW-6 ASI Pir Bux was examined at Ex.8. who produced roznamcha entries as Ex.8/A to 8/D respectively. Thereafter,' learned DDPP closed prosecution side, vide his Statement Ex.9.
7. Statements of applicant and co-accused under section 342, Cr.P.C. were recorded vide Ex.10 to Ex.12 respectively, wherein they denied prosecution allegations and claimed their innocence.
However, neither they examined themselves on oath, nor produced any witness in their defence.
8. Mr. Ali Jan Qureshi, learned counsel for the applicant submitted that applicant/convict was booked in Crime No.22/2019 registered at P.S. Nindo, District Badin under sections 458, 506/2, 337- H(2), 34, P.P.C. and after investigation he was challaned by police and was tried in the Court of Civil Judge and Judicial Magistrate (Family Court), Badin in Criminal Case No.14/2019 (Re-The State v.
Mehboob and others). He further submitted that after full dressed trial, trial Court reached at a conclusion that prosecution has failed to prove its case against co-accused Ghulam Nabi and Allah Bachayo, therefore, acquitted them of the charge, whereas on basis of same set of evidence; found the appellant to be guilty of the charge and convicted him for an offence punishable under section 456, P.P.C. and sentenced him to suffer SI for two (02) years with fine of Rs.15,0001-, in case of his failure to pay the fine, he was directed to remain in jail for one month more. However, benefit of section 382-B, Cr.P.C. was extended to him. He next submitted that applicant preferred appeal vide Criminal Appeal No.14 of 2019 before the Court of Session which was assigned to 2nd Additional Sessions Judge, Badin. He next submitted that learned appellate Court after hearing counsel for the accused and DPP appearing for the State, vide impugned judgment dated 11.11.2019 dismissed the appeal and maintained impugned judgment dated 26.10.2019 passed by trial Court, hence instant revision application has been filed. He further submitted that the evidence of prosecution witnesses was disbelieved by trial Court in respect of two co-accused, whereas same set of evidence has been believed while convicting present applicant which is contrary to law, and propriety of law demands that applicant/convict may also be extended similar benefit following the 'rule of consistency'. He next submitted that applicant is in custody right from the date of his conviction viz. 26.10.2019. In view of above, according to him, the impugned judgments passed by Courts below are liable to be set aside. Learned counsel further pointed out that, in fact, there was quarrel between the parties and applicant had sustained multiple injuries on his person, therefore, was referred to, to the Medico-legal Officer, Rural Health Centre, Nindo Shehar, District Badin where he was examined by Dr. Abdul Rehman Khatti and although applicant had sustained injuries on his person at the hands of complainant party, yet his case was not registered; however, complainant being influential person had succeeded to get his case registered against him. In support of his contention, he has focused upon Page 93 of Court file which is final medico-legal certificate and letter dated 05.03.2019 issued by ASI Police Station Nindo as well as Criminal Miscellaneous Application No.552 of 2019 being an application under section 22-A(6)(i), Cr.P.C., besides letter issued by DSP/Complaint Cell District Badin by which his assertion was recognized and submitted before the Court of Sessions/Ex-Officio Justice of Peace, Badin for issuing directions to get his case registered. He further submitted that, in fact, the applicant had not been heard nor has been given fair opportunity in terms of Article 10-A of Constitution of Islamic Republic of Pakistan, 1973 even then on the request made by respondent No.2/complainant Party, applicant being a law abiding citizen has entered into compromise. He therefore, submitted that no tangible material or concrete evidence was collected by police against him and no impartial evidence was adduced, even no proper opportunity of hearing was afforded to applicant, hence he prayed that by admitting instant Revision Application, it may be allowed and the applicant may be acquitted of the charge by setting aside impugned judgments.
9. Complainant, who was present in person, submitted that he has no objection if instant revision application is allowed and applicant/ convict is acquitted of the charges, as he has forgiven applicant in the name of Allah Almighty. He further submitted that he does not want to linger on the proceedings, therefore, has no objection for grant of revision application.
10. Learned A.P.G., appearing for State, opposed revision application on the pretext that the applicant was allegedly arrested at the spot by complainant party, besides offences with which he stands charged are not compoundable, therefore, no objection extended by complainant/respondent No.2 at this juncture carries no weight and is not warranted by law. She, therefore, prayed for dismissal of revision application.
11. In rebuttal, learned counsel for the applicant submitted that main offence under section 506(2) was not proved, whereas no evidence was recorded in respect of offence punishable under section 458, P.P.C., hence the applicant has been convicted under section 456, P.P.C. According to him, before converting the punishment from section 458, P.P.C. to section 456, P.P.C., the charge was not altered by trial court; however, learned trial Court on the basis of answer of the applicant given by him in reply to question No.3 in his statement under section 342, Cr.P.C, has convicted him under section 456, P.P.C. by placing reliance upon certain case law. He further submitted that applicant may be acquitted of charge by extending benefit of doubt to him in view of dictum laid down by honourable Supreme Court of Pakistan in the case of Tariq Pervaiz v. The State (1995 SCMR 1345).
He next submitted that no doubt sections 456 and 458, P.P.C. are not compoundable, yet other sections are compoundable anti moreover the complainant, who is also alleged victim in the case, has extended his no objection therefore, for the sake of maintaining peace and tranquility in the area which may enable the parties to live and pass a peaceful-cum-harmonious life, his request may be acceded to. In support of his contentions, he has placed reliance upon case of Manzoor Ali v. The State reported in 2020 PCr.LJ 278.
12. In instant case, in the FIR three accused were nominated namely, present applicant Mehboob Ali and acquitted co-accused namely Ghulam Nabi and Allah Bachayo. By the impugned judgment, Trial Court viz. learned Civil Judge and Judicial Magistrate, Badin, while convicting the appellant, acquitted abovesaid two co-accused by extending them benefit of doubt.
13. Learned counsel for the applicant vehemently contended that although from the perusal of the evidence adduced before the trial Court, it is clear that almost all the accused persons were implicated in the commission of alleged offences; however, the trial Court while disbelieving the evidence of prosecution witnesses against accused namely Ghulam Nabi and Allah Bachayo and extending them benefit of doubt, acquitted them whereas on the basis of same set of evidence, convicted the present appellant which is in clear violation of 'rule of consistency'.
14. Needless to emphasize that rule of consistency demands that if prosecution has disbelieved the evidence in respect of a co-accused, the same cannot be relied non for convicting other accused.
However, before referring to the dictum laid down by the Superior Courts on this point, it would be appropriate to examine the evidence of prosecution witnesses with a view to see as to whether aforesaid acquitted accused persons have been assigned any role in the commission of the alleged offence or not?
15. In fact, it has been alleged by the complainant that on 05.03.2019, at about 0030 hours, in the night time, he was charging his mobile phone, when he saw in the electric light that three persons viz. present applicant Mehboob Ali and acquitted accused Ghulam Nabi and Allah Bachayo were present in his cattle pond. He instantly got woke up his relatives namely, Qurban Ali and Dodo.
Then, they encircled the accused and caught hold of accused Mehboob Ali Dasti along with lathi, whereas other two accused Ghulam Nabi, duly armed with gun and Allah Bachayo having hatchet in his hand, by making aerial firing and extending threats made their escape good. Thereafter, complainant went to police station and lodged FIR.
16. P.W. Qurban Ali, who has also been shown as an eye-witness, in his evidence, inter alia, deposed as under: "We all from the street side came and tried to caught hold the accused persons, from whom one of accused Mehboob Dasti was arrested and identified on the electric light, the other accused each namely Ghulam Nabi having gun and Allah Bachayo having lathi. During escaping accused Ghuliim Nabi made aerial fire, both escaped away by extending threats of murder."
17. P.W. Dodo, who is also shown to have witnessed the alleged incident, inter alia, deposed as under: "....thereafter, I, Qurban and complainant caught hold the accused Mehboob Ali Dasti, and identified on the electric light the other accused namely Ghulam Nabi having gun and Allah Bachayo having lathi in their hands. During escaping accused Ghulam Nabi made aerial fire, both escaped away by extending threats of murder."
18. From above, it is clear that even acquitted accused namely, Ghulam Nabi and Allah Bachayo were also fully implicated by the complainant and two alleged eye-witnesses of the incident, rather said two accused were assigned harsher role than the applicant Mahboob Ali, which is evident from the evidence of all three witnesses. Even accused Ghulam Nabi was also alleged to have made aerial firing. Despite that these two accused have been acquitted by extending, them benefit of doubt, whereas present applicant has been convicted which seems to be in clear violation of 'rule of consistency'.
19. On the point of 'rule of consistency', it would be advantageous to refer to a judgment of honourable Supreme Court passed in the case of Muhammad Asif v. The State reported in 2017 SCMR 486 wherein it was held as under: "It is a trite of law and justice that once prosecution evidence is disbelieved with respect to a co- accused then, they cannot be relied upon with regard to the other co-accused unless they are corroborated by corroboratory evidence coming from independent source and shall be unimpeachable in nature but that is now available in the present case."
20. In another case reported as Umar Farooque v. State (2006 SCMR 1605) Honourable Supreme Court held as under: "On exactly the same evidence and in view of the joint charge, it is not comprehendible, as to how, Talat Mehmood could be acquitted and on the same assertions of the witnesses, Umer Farooque could be convicted."
21. In the case of Muhammad Asif v. The State reported in 2017 SCMR 486 it was held by honourable Supreme Court that once prosecution witnesses were disbelieved with respect to a co-accused then, they could not be relied upon with regard to the other accused unless they were corroborated by corroboratory evidence which came from an independent source and was also unimpeachable in nature. In another case reported as Muhammad Akram v. The State (2012 SCMR 440) the Apex Court while holding that same set of evidence which was disbelieved qua the involvement of co-accused could not be relied upon to convict the accused on a capital charge, acquitted the accused. In view of this legal position, "applicant/convict/accused should also have been extended same benefit as given to the acquitted accused which was not done.
22. Apart from above, it also seems that both the parties viz. the complainant and the accused have patched up their differences and amicably settled their disputes and have filed application under section 345(2), Cr.P.C. for granting permission to compromise the matter, so also compromise application under section 345(6), Cr.P.C. mentioning therein that due to intervention of nek mards of locality the part have compromise the matter for keeping good. brotherly and cordial relations with each other. During course of arguments also, complainant had appeared before this Court and stated that he has no objection if instant Cr. Revision Application is allowed and the applicant Mehboob Ali is acquitted of the charges. He further submitted that he does not want to linger on the proceedings therefore he has given his no objection to the grant of instant revision application. However, learned A.P.G. appearing for the State opposed such suggestion on the ground that the offences with which the accused stands charged are not compoundable.
23. It seems that the FIR was lodged against the accused persons under sections 458, 506(2), 337- H(2) and 34, P.P.C. The Charge was also framed against the accused persons under aforesaid Sections of Pakistan Penal Code. However, the trial Court vide impugned judgment gave its finding that the offence under section 458, P.P.C. was not proved against the accused, while the provisions of section 456, P.P.C. were attracted in the circumstances of the case, therefore, the accused/appellant was convicted and sentenced for the offence punishable under section 456, P.P.C., whereas two co-accused were acquitted. Out of abovesaid offences, the offence punishable under section 506, P.P.C, is compoundable and it may be compounded by "The person intimidated" and the offence punishable under section 337-H, P.P.C. is also compoundable and the same may be compounded by "The person to whom hurt is caused". In this view of the matter, in the instant case, both these offences may be compounded by the Complainant as he was the person who was allegedly caused intimidation under section 506, P.P.C. and also who was allegedly caused hurt under section 337-H(2), P.P.C. However, the offence punishable under section 458 mentioned in the FIR and the Charge, and/or section 456, P.P.C. under which the accused/appellant has been convicted and awarded sentence, do not find mention in the table of compoundable offences provided under section 345, Cr.P.C.
24. Now question arises, as to whether when the parties have amicably settled their disputes and have compromised in respect of the two offences under sections 337-H, P.P.C. and 506, P.P.C., other non-compoundable offence under section 458 or 456, mentioned in the FIR as well as the Charge and the impugned judgment, could also be compromised? and as to whether such compromise could be entertained or not by this Court?
25. It is an admitted fact that both the parties have amicably settled all their differences and disputes and have agreed to pass rest of their lives in peace, tranquility and harmony. It may be observed that non-compound ability of a particular offence under any section of the enactment should not be read in isolation but it should be read in the background of each criminal case and beneficial interpretation should be given to it. If anyauthority is needed, reference may be made to the case of Ijaz and another v. Mst. Manadia (PLD 2016 Peshawar 26). In the instant case, when both the parties have earnestly decided to live in peace and tranquility by ignoring and settling all their past differences, then for the sake of their welfare in particular and betterment of socio- economic conditions of the society as a whole, it will be prime need of the time to accept the compromise and consequently acquit the appellant from the charges.
26. In the cases of I/az (supra) and Suo Motu case, Re-the State v. Irfanullah Qazi (2007 MLD 1269), the offences relating to Special Law/ATA etc were not compoundable; however, on account of compromise arrived at between the parties, same was recognized by Honourable Peshawar High Court as well as by this Court.
27. A Division Bench of this Court while dealing with this point in the case of Hussain Bux and others v. The State reported in PLD 2003 Karachi 127 (DB) observed as under: "At this juncture we would like to refer to another objection of Mr. Ali Azhar Tunio, learned Assistant A.G to the effect that the offence under section 302, P.P.C. is compoundable while the offence under section 149, P.P.C. is not compoundable. Although in Second Schedule to Cr.P.C. it is contained that the offence under section 149, P.P.C. is not compoundable but we are persuaded to agree with the views of Mr. Muhammad Bachal Tunio, learned A.A.G, and Mr. Ali Nawaz Ghanghro Advocate, the learned amicus curiae, that offence under section 149, P.P.C., is by way of constructive liability and when the main offence is allowed to be compounded and the persons who have taken specific part in the commission of offence are allowed to compound, then the persons who are convicted on account of being merely members of unlawful assembly are also entitled to the concession of compromise/compounding/waiver, otherwise it would not be in consonance with the principles of justice, in accordance with the injunctions of Islam as laid down in Holy Qur'an and Sunnah."
28. Yet in another case reported as Ashique Solangi and another v. The State (PLD 2008 Karachi 420) it was held, by this Court as under: "2. The applicants were convicted under sections 452, 337-H(2), 506/2 and 148, P.P.C. The legal question is that certain offences are compoundable and certain offences are not compoundable.
I am of the clear view that the main offence is compoundable and parties have compromised against themselves then the small offences should be treated as compromised though under the statute those are not compoundable. In the present case revision keeping in view the compromise which has taken place between the parties outside the Court, it is not proper to uphold the conviction specially when the complainant does not want to pursue his case anymore. In the circumstances, I accept the revision application and order acquittal of both the applicants from the charge."
29. In another case reported as Imdad Hussain v. The State (PLD 2008 Lahore 450, honourable Lahore High Court held as under: "5. The main offence of Qatl-i-amd is compoundable. The legal heirs of Umer Farooq deceased compounded the offence and affected a compromise with the legal heirs of the deceased.
The legal heirs appeared before the learned Sessions Judge, Gujranwala and certified their compromise with Imdad Hussain, appellant. The learned Sessions Judge also verified genuineness of compromise between the parties vide his report, referred to above. In the given circumstances the principle of merger is applicable, which is to the effect that in case of compromise between the parties in a criminal case, the minor offence even if not compoundable merges into the compoundable major offence. The result would be that after acquittal of the appellant of the major offence of Qatl-i-amd in terms of compromise the minor offence of house trespass is deemed to have been compounded under the principle of merger."
30. In another case reported as Shahid v. The State and another (2017 YLR Note 81 [Lahore]) it was held as under: "Needless to say, compromise even in non-compoundable offences makes a crucial circumstance and a redeeming feature which helps the warring-parties come close to each other and live peacefully onwards. Let non-compoundable nature of the offences under sections 452, 354, P.P.C. not frustrate their noble intentions."
31. In the case of Ijaz and another supra, while dealing with similar situation, it was held by Peshawar High Court as under: "5. No doubt section 436, P.P.C. is not compoundable and section 345, Cr.P.C. is inapplicable to compound it but equally it is an admitted fact that both the parties have amicably settled down all their differences and have resolved to lead rest of their lives in peace and tranquility.
8. Of course, in letter, section 436, P.P.C. is not compoundable. However, non-compoundability of a section of law should not be read in isolation but it should be read in the background of each criminal case and a beneficial interpretation should be given to it When the parties in the instant case have earnestly decided to live in peace by forgetting all their differences then it will be a need of the hour to acquit the petitioners in the instant case on the basis of compromise despite the non-compoundability of section 436, P.P.C. "
32. Honourable Lahore Court in the case of Ali Raza and another v. The State and another reported in PLD 2013 Lahore 651 made following observations: "The offence alleged is certainly non-compoundable but eagerness of the parties to settle their dispute by executing an agreement, in mentioned terms has to be given a sense of respect, so that they may harvest benefit thereof. The complainant and his wife, who are doctors/ medical-officers by profession, hence, educated persons; well understand the ins and outs of the compromise arrived at and they, being, present in person like Mst. Kalsoom Bibi accused have expressly stated that they on account of compromise do not intend to prosecute the accused-petitioners further, if the loss allegedly sustained by the complainant and his wife at the hands of the accused/ petitioners has been made good, to their entire satisfaction, there may be no harm in allowing the instant applications for bail after arrest. Even otherwise, it has always been observed that the compromise even in non-compoundable offences is a redeeming factor, which brings peace, harmony and coherence in the society and it may have far-reaching positive effects, in the lives of warring-parties."
33. Following the dictum laid-down by Superior Court in the aforesaid decisions I myself, while deciding the case or Manzoor Ali v. The State reported in 2020 PCr.LJ 278, at Sukkur Bench of this Court, allowed such compromise and consequently acquitted the accused/ appellant in that case while holding as under: "In the present case/appeal keeping in view the compromise which has taken place between the parties outside the Court it is not proper to decline the compromise and to uphold conviction; specially when the complainant; who at the same moment is victim/injured; does not want to pursue his case anymore. In the circumstances, I accept the compromise application and order acquittal of the appellant from all the charges. Consequently, in view of compromise arrived at between the parties, instant appeal along with pending application(s) is allowed. The appellant present on bail is hereby acquitted of all the charges. His bail bonds are cancelled and surety furnished by him is also discharged."
34. For the foregoing, reasons, by a short order passed on 13.04.2020, instant Criminal Revision Application was allowed. Consequently, Judgment dated 11.11.2019 passed by learned 2nd Additional Sessions Judge, Badin in Criminal Appeal No.14/2019 (re-Mehboob Ali v. The State), so also the judgment dated 26.10.2019 passed by learned Civil Judge and Judicial Magistrate, Badin in Criminal Case No.14 of 2019 (re-The State v. Mehboob Ali and others) being outcome of FIR No.22/2019 registered at Police Station Nindo under sections 458, 506/2 and 337-H(2)/34, P.P.C., were set aside to the extent of conviction of present applicant Mehboob Ali only however, impugned judgment passed by trial Court was maintained to the extent of acquittal of co- accused Ghulam Nabi son of Razique Dino Dasti and Allah Bachayo son of Sher Muhammad Dasti.
Resultantly, the applicant/convict Mehboob Ali son of Ghulam Muhammad Dasti was acquitted of charges. He was in custody and was, therefore, ordered to be released forthwith if his custody was no longer required by jail authorities in any other custody case. Consequently, Criminal Misc.
Application No. S-532 of 2019 filed by applicant/convict under section 561-A, Cr.P.C., having become infructuous, was dismissed along with pending application(s), if any, and office was directed to place photocopy of short order as well as its reasons in the connected file. Office is directed to return the R&Ps of Criminal Appeal No.14/2019 to appellate Court/IInd Additional Sessions Judge, Badin and R&Ps of Criminal Case No.14/2019 to trial Court/Civil Judge and Judicial Magistrate (FC), Badin through learned Sessions Judge, Badin along with copy of this judgment.
35. Above are the reasons for the said short order.