1. MUHAMMAD SALEEM JESSAR, J. Through this Criminal Appeal appellants have assailed judgment dated 17.07.2020 handed down by. Model Criminal Trial Court-I, Hyderabad in Sessions Case No.522 of 2019 (re: The State v. Aslam and others) being outcome of FIR No.218/2018 under Sections 302, 364/34, P.P.C., registered at P.S. Seri, Hyderabad, whereby appellants have been convicted for offence punishable under Section 302(b)/34, P.P.C., and sentenced to suffer R.I. for life and to pay compensation of Rs.2,00,000/- (Rupees Two Lac only) to the legal heirs of the deceased jointly as provided under Section 544-A, Cr.P.C. and in case of failure to pay compensation, to suffer S.I. for six months. The appellants were also convicted for offence punishable under Section 364/34, P.P.C., and sentenced to suffer R.I. for ten (10) years and to pay fine of Rs.50,000/- (Rupees Fifty Thousand only) jointly and in case of failure to pay fine, to suffer S.I. for six months. It was further ordered that both the sentences shall run concurrently and the appellants were also extended benefit of section 382-B, Cr.P.C.
2. Concisely, the facts of prosecution case, as disclosed in the FIR are that on 01.12.2018, complainant Mohammad Nazeer lodged abovesaid FIR alleging therein that his father Mohammad, by caste Lohar, aged about 65 years was driver on coaster/bus of Imdad Kalhoro, bearing Registration No.R- 0590 and his brother Azeem was conductor on the same bus. One Tariq Aziz son of Allah Dino Soomro was cleaner on the same bus. On 20.11.2018, complainant's father Mohammad was driving the abovesaid bus which departed from Badin city to Hyderabad along with other passengers and complainant was also travelling in same bus for repairing generator of another bus. At about 7.30 p.m. the said bus crossed Kathar Phattak (Railway Crossing) where complainant saw that from front side, two buses were coming in speed. Bus hearing Registration No.C-998 was ahead of bus bearing Registration No. C-7098. Door of bus No.C-908 collided with bus driven by complainant's father, with the result its main glass was damaged. Thereafter, all three buses were parked by road side and allegedly all the five accused/appellants entered the bus driven by his father and started beating him with kicks, punches and iron rod. The complainant and others intervened to protect his father resultantly his younger brother Azeem was also injured. It was further alleged that complainant's father then was forcibly kidnapped by accused persons. The complainant followed the accused and saw that they left his father at Indus Hospital. "Tando Mohammad Khan and went away. He reached at the hospital and saw that his father had passed away and such information was conveyed to his relatives. Then the complainant along with Abdul Hussain, Abdul Sattar and Saifullah, took the dead body of the deceased to village and after funeral ceremony, he appeared at police station and lodged FIR.
3. After usual investigation, challan was submitted against the accused in the concerned court. Then case was transferred to the trial Court where a formal charge was framed vide Ex.02 against the accused to which they pleaded not guilty and claimed to be tried vide their Pleas Exs.2/A to 2/E.
4. In order to prove its case, prosecution examined PW.1 Dr.Waheed Ali Nahiyoon, P.W.2 Mr.Bhapat Rai, Civil Judge and .Judicial Magistrate. Matli, P.W.3 complainant Mohammad Naeem, P.W.4 Azeem, P.W.5 Tariq Aziz, P.W.6 Abdul Hameed, P.W.7 Saifullah, P.W. 8 Manzoor, P.W.9 SIP Ghulam Farooq and P.W.10 SIP Mohammad Arif Mughal at Ex.03 to Ex.15. The witnesses produced documents as Ex.3/A to Ex.14/T, then prosecution side was closed vide Statement Ex.16. Thereafter, learned counsel for the complainant moved an application under section 540, Cr.P.C. to examine Mst. Farzana as witnesses which was. allowed and accordingly her evidence was got recorded vide Ex.22 and then prosecution side was again closed vide Ex.23.
5. Statements of accused persons under Section 342, Cr.P.C. were recorded vide Ex.17 to Ex.21, wherein they denied the allegations levelled against them and claimed to be innocent. However, neither they examined themselves on oath, nor produced any witness in their defence. After allowing application under Section 540, Cr.P.C., statements of accused were again recorded under Section 342, Cr.P.C. vide Ex.24 to Ex.28.
6. After formulating the points for determination, recording evidence of prosecution witnesses and hearing counsel for the parties, learned trial Court vide impugned judgment convicted and sentenced the accused/appellants, as stated above. Against said judgment instant appeal has been preferred by the convicted accused.
7. During the pendency of instant appeal, parties have entered into compromise and have jointly filed application under Sections 345(2), Cr.P.C. for according permission to enter into compromise, so also compromise application under Section 345(6), Cr.P.C. for disposal of instant case in terms of compromise and acquittal of the accused/appellants.
8. I have heard learned counsel for the appellants, learned A.R.G. appearing for the State, so also learned counsel for the complainant and also perused the material available on the record.
9. Learned advocates appearing for the appellants submitted that main offence under Section 302, P.P.C. is compoundable and the parties have compromised their dispute therefore the application may be allowed. According to them so far as offence under section 364, P.P.C. is concerned, there are major contradictions in the evidence of prosecution witnesses and the prosecution has miserably failed to establish charge to constitute offence in terms of Section 364, 13:13.C. Learned counsel, after going through the evidence of the prosecution witnesses, submitted that it was a simple case of collision/road accident and the deceased, as per evidence adduced and produced before the trial Court, had died due to heart attack and no marks of injuries and/or violence were found on his person during the process of autopsy. They next added that per evidence of the Medico-legal Officer as well as Chemical Report, the cause of death has been declared as undeterminable. According to learned counsel, in view of above factual position, it is obvious that in order to strengthen rope of its case against the and to exert illegal pressure, the prosecution has inserted Section 364, P.P.C., which otherwise has not been established or constituted through any tangible evidence. Learned counsel further submitted that neither offensive weapon(s), as alleged to have been used by the accused, have been recovered from the appellants, nor it has been specified as to which of the accused was having which weapon. He further contended that FIR was also filed after a delay of about two days, for which no plausible explanation has been furnished.
10. Learned counsel, while referring to page-59 of the paper book, submitted that the coaster allegedly driven by the deceased, was secured from certain lands but no material was placed on record in order to establish that said piece of land/place of recovery belonged to the accused/appellants. According to him in fact, two coasters collided with each other resulting sustaining injuries by the deceased and P.W. Azeem, therefore question of removing the injured, who subsequently succumbed to injuries, towards hospital does not make sense or constitute the ingredients of Section 364, P.P.C. Learned counsel lastly submitted, that even on merits the appellants have got a good case for their acquittal.
11. Learned Assistant Prosecutor General Sindh did not oppose the pending application under Section 345, Cr.P.C. As regards offence under section 364, P.P.C., she proposed that minimum quantum of sentence, as provided by the law, may be awarded to the accused/ appellants. She, however, could not controvert the fact that parties have entered into compromise and main offence, in view of compromise entered into between the parties, has been over, thus the offence under Section 364, P.P.C., being minor offence, is liable to be merged.
12. Learned counsel appearing for the complainant also did not oppose the appeal on both counts and submitted that the complainant/legal heirs of the deceased, have forgiven the appellants, therefore it will be appropriate to allow the appeal even on merits.
13. So far as offence under section 302, P.P.C. is concerned, there is no dispute as the same being compoundable offence, the parties have entered into compromise and learned Assistant Prosecutor General as well as learned counsel for the complainant have also raised no objection to the acceptance of compromise. However, the offence under section 364, P.P.C. being uncompoundable offence, it is to be seen as to whether the conviction and sentence awarded by the trial Court to the accused/appellants in respect of offence under section 364, P.P.C. is in accordance with the law or not?; and as to whether the said offence could be merged in view of the fact that the parties have compromised the offence under Section 302, P.P.C?
14. It seems that the allegations against the accused/appellants are that after the door of bus No.C- 908 collided with bus driven by complainant's father which resulted in damaging its main glass, all the five accused/appellants entered the bus driven by his father and started beating him with kicks, punches and iron rod. The complainant and others intervened to protect/rescue his father resultantly his younger brother Azeem was also injured. Thereafter, allegedly complainant's father was forcibly kidnapped by accused persons. The complainant followed the accused and saw that they left his father at Indus Hospital, Tando Mohammad Khan and went away. He reached at the hospital and saw that his father had passed away. Before discussing the evidence, it would be advantageous to reproduce hereunder contents of Section 364, P.P.C.: "364. Kidnapping or abducting in order to murder. Whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished with imprisonment for life or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."
15. P.W. Mohammad Naeem, who claims to be eye-witness of the incident and is real son of deceased Mohammad Lohar, in his examination-in-chief deposed: "Aslam Hajano, Abdul Rahman Hajano, Abbas Hajano, Irshad Hajano and Mustafa Hajano took my father to Tando Mohammad Khan Indus hospital and after treatment left my father dead body there."
16. In his cross-examination, he admitted as under: "It is correct to suggest that we left our father at the spot and went away. I and my brother went by foot. We went to the Malang hotel situated at some distance away from the place of incident.
17. Malang hotel would be about 4/5 kilometer away from place of incident. We remained present at Malang hotel for about one hour and 30 minutes. We were returning on coaster going towards Digri town and staff of that coaster informed us that they had seen my father who was being taken to hospital on Suzuki. I was present in coaster going towards Digri, when I saw that my father was being taken to hospital on Suzuki and he was lying at the back side of the Suzuki. I went to Matti on coaster, thereafter to Badin wherefrom took my sister to Tando Ghulam Ali. Kareem Mallah informed me on phone that my father had died. It is correct to suggest that the distance amongst Matili, Badin and Tando Ghulam Ali route would be about 150 kilometer distance."
18. From the perusal of the evidence of aforesaid alleged eye-witness, it is apparent that he had admitted in clear terms that the accused persons/appellants took his father to Tando Mohammad Khan Indus hospital and after treatment Ieft his father dead body there. Now, from the bare reading of, the contents of Section 364, P.P.C., it is clear that this section relates to the person(s) who kidnap or abduct any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered. It contents of this section are put in juxtaposition to the aforesaid admission of the alleged eye-witness namely P.W. Mohammad Naeem, it may safely be observed that had the accused/appellants any intention to kidnap or abduct complainant's father in order to commit his murder, then what was the fun in taking him to Indus Hospital for treatment, as admitted by the aforesaid alleged eye-witness. Obviously, in the circumstances, ingredients of section 364, P.P.C. are totally lacking in the case.
19. It is also very strange that although real father of aforesaid alleged eye-witness was being mercilessly beaten and then allegedly kidnapped along with coaster, despite that instead of approaching the police immediately, he and his brother P.W. Azeem, who also claimed to have seen the alleged incident, escaped away from the place of incident and went by foot to Malang hotel situated at a distance of about 4/5 kilometer from place of incident and remained there for about one hour and 30 minutes. This witness also admitted that he went to Matli on coaster, thereafter to Badin wherefrom he took his sister to Tando Ghulam Ali. He also admitted that the distance in between Matli, Badin and Tando Ghulam Ali route would be about 150 kilometer distance. No explanation has come forward from the prosecution side as to why instead of approaching police station straight away, the alleged two eye-witnesses, who are also real sons of the deceased, spent a long time of one hour and 30 minutes at Malang hotel and travelled a long distance of about 150 Kilometers in between Matli, Badin and Tando Ghulam Ali. Above admission reflects either the complainant was not available at the time of alleged incident or the incident had not taken place in the manner as reported.
20. Admittedly, there is a delay of two days in lodging the FIR, as the incident allegedly took place on 29.11.2018 at 1930 hours whereas FIR was got registered on 01.12.2018 at 1930 hours. No plausible explanation has come forward from the prosecution side for such an inordinate delay which is also evident from the facts enumerated above.
21. In the case reported as Ayub Masih v. The State (PLD 2002 SC 1048) Honourable Supreme Court held as under:- "The unexplained delay in lodging the FIR coupled with the presence of the elders of the area at the time of recording of FIR leads to the inescapable conclusion that the FIR was recorded after consultation and deliberation. The possibility of fabrication of a story and false implication thus cannot be excluded altogether. Unexplained inordinate delay in lodging the FIR is an intriguing circumstance which tarnishes the authenticity of the FIR casts a cloud of doubt on the entire prosecution case and is to be taken into consideration while evaluating the prosecution evidence.
22. It is true that unexplained delay in lodging the FIR is not .fatal by itself and is immaterial when the prosecution evidence is strong enough to sustain conviction but it becomes significant where the prosecution evidence and other circumstances of the case tend to tilt the balance in favour of the accused."
23. In view of unexplained delay of two days occurred in the registration of FIR, possibility of deliberation and false implication of the accused could not be overruled.
24. Besides above, there are also other serious infirmities and discrepancies in the prosecution case.
25. For instance,
(i) there was a delay of 28 days in exhumation proceedings, as admitted by P.W. Bhupat Rai, Civil Judge and Judicial Magistrate, Thana Bolla Khan;
(ii) in the final postmortem report it was opined that cause of death of deceased was undermined;
(iii) no crime weapon, allegedly used by the accused, has been recovered from any of the appellants; and (iv) although it has been alleged that the coaster allegedly driven by the deceased, was secured from lands of accused; however, no material has been placed on record to establish that the land/place of recovery belonged to the accused/appellants.
26. Yet there is also another aspect of the case. Admittedly, the parties have entered into compromise and the legal heirs of the deceased have forgiven the accused/appellants in the name of Almighty Allah and have waived their right of Qisas and Diyat. Now the question arises that when the offence under Section 302, P.P.C. being the main offence has come to an end consequent upon the compromise having entered into between the parties, as to whether the offence under Section 364, P.P.C., allegedly committed by the accused/appellants in continuation of offence under Section 302, P.P.C., would be merged?
27. Learned Assistant Prosecutor General Sindh, appearing for the State has conceded to such proposal.
28. It may be reiterated that admittedly 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-compoundability 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 any authority is needed, reference may be made to the case of ljaz 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 appellants from the charges.
29. In the cases of Ijaz (supra) and Suo Motu case, Re-The State v. Irfanallah 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.
30. A Division Bench of this Court while dealing with this point in the case of Hussain Bux and others v.
31. 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 Addl. 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."
32. 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.
33. I am of the clear view that if 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."
34. 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.
35. 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."
36. 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 undo, sections 452, 354, P.P.C. not frustrate their noble intentions."00 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.
37. Reference can be held from another case of Ali Raza and another v. The State and another reported in (PLD 2013 Lahore 651) wherein Honourable Lahore High Court held as under:-- "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."
38. Following the dictum laid-down by Superior Courts, in the aforesaid decisions, I myself, while deciding the case of 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."
39. The upshot of above discussion is that application being M. A. Nos.9172/. 2020 under Section 345(2) is allowed and permission is granted to the parties to enter into compromise, and consequently compromise application under Section 345(6), Cr.P.C. being M.A. 9173/2020 for disposal of instant case in terms of compromise and acquittal of the accused/appellants jointly filed by the parties is also allowed. Consequently impugned Judgment dated 17.07.2020 handed down by Model Criminal Trial Court-1, Hyderabad in Sessions Case No.522 of 2019 (re: The State v. Aslam and others) being outcome of FIR No.218/2018 under sections 302, 364 and 34, P.P.C., registered at Police Station Seri, Hyderabad, is hereby set aside. The appellants/convicts namely, Aslam son of Mushtaque alias Mustafa, Irshad Ali son of Mir Zaman, Mustafa Hajano alias Mushtaque Ali son of Haji Ali Mohammad, Abdul Rahman son of Abbas Ali and Abbas Ali alias Abbasi son of Mushtaque Ali, are accordingly acquitted of all the charges. The accused/appellants, being in custody, are ordered to be released forthwith if their custody is no longer required by jail authorities in any other custody case.
40. Instant appeal is disposed of in the above terms.