1. MUHAMMAD SALEEM JESSAR, J. Through instant Criminal Revision Application, applicant Muhammad Shayan has assailed the judgment dated 10.09.2018 passed by learned Additional Sessions Judge-VIII, Karachi (West) in Criminal Appeal No.15/2018 whereby he maintained the conviction of the applicant vide judgment dated 19.05.2018 passed by learned Vth Civil Judge and Judicial Magistrate, Karachi (West), in Criminal Case No.1861/2015 (re-the State v. Mohammad Shayan alias Shani) whereby he has been convicted to undergo imprisonment for three years with fine of Rs.25,000/-.
2. Process issued against complainant has been returned unserved by PI Abdul Rehman of P.S Sher Shah, Karachi on the pretext that complainant had shifted his residence towards Punjab, taken on record.
3. Learned counsel for the applicant submits that since it was an attempt and no offence was committed; however, the appellant has remained in custody for about 18 months. He further submits that parties have already been entered into settlement outside the Court. In support of his submission, he draws attention of the Court towards order dated 28.08.2019. Per said order, the complainant, who is father of the victim boy Muhammad Ehtisham, was present before the Court and stated that he had no objection if by granting instant revision application, applicant may be acquitted of the charges by way of compromise. Learned counsel further submits that victim as well as his father has extended their no objection by way of compromise, therefore, by granting instant revision application, applicant may be acquitted of the charges. In support of his contention, learned counsel places reliance upon the case of Aamir and 2 others v. The State and another (2011 MLD 1468).
4. On the other hand, learned Addl. P.G, Sindh opposes the revision application on the ground that applicant is nominated in the FIR; besides, sufficient material was collected by the I.O during investigation, therefore, impugned judgments passed by the Courts below do not suffer from any illegality of infirmity which may warrant interference by this Court.
5. In earlier part of the day, learned Addl. P.G, Sindh was directed to call fresh jail roll of the applicant.
6. In compliance of said directions, Senior Superintendent, Central Prison, Karachi has submitted jail roll, which reveals that applicant has served out his sentence without remissions as 01 year, 03 months and 08 days up to 19.01.2019 and earned remissions as 00 years, 06 months and 09 days, while remaining sentence of the applicant as per jail roll is 01 year, 11 months and 13 days.
7. Since, complainant Muhammad Arif, who is father of victim boy Muhammad Ehtisham, was present before the Court on 28.08.2019 and stated that due to intervention of elders of their community, he had forgiven the applicant and raised no objection for his acquittal by way of compromise as he did not want to pursue the case anymore or to prosecute the applicant.
8. As far as, contention raised by learned Addl. P.G, Sindh that offence with which applicant stands charged is not compoundable, is concerned, the complainant who at the moment is father of victim boy, had stated before the Court regarding compromise, thus had extended his no objection for grant of revision application. Moreover, no offence was committed except alleged attempt. Per learned Addl. P.G, sperm was found available upon the clothes of the victim, which were not sent to laboratory for DNA testing nor such report was made available with regard to matching of the same with applicant's DNA. In absence of DNA report, remaining prosecution evidence, which is imaginary and have not been corroborated with any substantive material except allegation of attempt, in view of settlement of the parties outside the Court, cannot be based for maintaining conviction against the applicant. In case of Aamir and 2 others v. The State and another (Supra), learned Bench of Lahore High Court discussed this issue in para-9 of the judgment in following terms;- "9. Now I advert to the factum whether compromise can be effected in non-compoundable offence. I am of the view that the compromise is meant to promote harmonious living and maintain cordial relations between the parties. This view was affirmed by august Supreme Court of Pakistan in case of Ghulam Shabbir and 2 others v. The State (2003 SCMR 663)."
9. I am also forfeited with the view taken by this Court in case of Ashique Solangi and another v. The State (PLD 2008 Karachi 420), in which identical situation was considered and the applicants/convict were acquitted of the charges in following terms:- "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.
10. 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 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. Their conviction and sentence is set aside. They are present on bail, their bail bonds are cancelled and sureties discharged."
11. For the foregoing reasons and in view of above citations, I am persuaded to allow instant Criminal Revision Application. Consequently, impugned judgments viz, judgment dated 19.05.2018 passed by learned Vth Civil Judge and Judicial Magistrate, Karachi (West) vide Criminal Case No.1861 of 2015 (re-the State v. Mohammad Shayan alias Shani) being outcome of Crime No.166 of 2015 of P.S Sher Shah, Karachi, under Section 377 P.P.C. and judgment dated 10.09.2018 passed by learned Addl.
12. Sessions Judge-VIM Karachi (West) in Criminal Appeal No.15 of 2018 (re-Mohammad Shayan alias Shani v. The State) are hereby set-aside. The applicant/convict Muhammad Shayan alias Shani is acquitted of the charge(s). He is present on bail, therefore, his bail bonds are cancelled and surety furnished by him is also ordered to be discharged, subject to rules and proper verification.