' The appellants in this appeal, namely, Muhammad Tufail, Sher Muhammad and Ghulam Hussain have been convicted and sentenced by a learned Magistrate section 30 to various terms of imprisonment under section 307/34, P. P. C. For causing injuries to Muhammad Ayub P. W.
2. On behalf of the complainant Allah Bakhsh as well as the injured Muhammad Ayub, an application has been submitted in this Court being Criminal Miscellaneous No, 6 of 1983 stating that the parties who are relatives were pitched against each other and there was a long-standing blood-feud between them since the times of their ancestors. It is submitted that sanity has now prevailed. The rival parties have arrived at a compromise, in relation to various disputes and pending litigation, through the efforts of God-fearing respectables of the area in the spirit of 'forgive and forget' with a view to bringing about amity and peace. They have thus decided to bury the hatchet.
3. The statements of the aforesaid two persons were also recorded in the course of which they stated that this unfortunate blood-feud between the two groups of relatives bad ruined them by involvement in. Litigation. It was also submitted at the hearing that there was multiple criminal litigation going on between the two factions as a result of personal vendetta.
4. It may be observed here that in so far as Muhammad Tufail appellant is concerned, he has been convicted and sentenced to five years' R.
1. Plus Rs, 5,000 as fine whereas appellants Sher Muhammad and Ghulam Hussain have been convicted and sentenced to one year's R. I. And a fine of Rs, 1,000 each and in default of payment of fine, they are to suffer further rigorous imprisonment for six months. It is stated by the learned counsel for the appellants that in so far as Muhammad Tufail is concerned, he has already undergone about 14 months' imprisonment whereas the two others have undergone the sentence for a lesser period.
5. The learned counsel for the appellants strenuously argued that on the basis of the compromise the appellants were entitled to acquittal. However, II have not felt persuaded to agree. Reference to section 345 of Cr. P. C. Would make it clear that by virtue of its subsection (1) it lists the persons by whom offences mentioned in that subsection may be compounded. Thereafter, subsection (2) gives the list of those persons by whom the offences specified in this subsection may be compounded with the permission of the Court before which any prosecution for such offence is pending. It appears clear on examination of scheme of law that section 307, P. P. C. Is not one of the offences which is compoundable with or without permission of the Court. A case during the pendency of an appeal is covered by subsection (5) which lays down that after an accused has been convicted and an appeal is pending, no composition of the offence shall be allowed without the leave of the Court before which the appeal is to be heard. Then comes subsection (6) which provides that the composition of an offence under this section shall have the effect of an acquittal of the accused with whom the offence has been compounded. Thereafter subsection (7) lays down that no offence shall be compounded except as provided by this section. Therefore, in substance what the learned counsel for the appellants desires this Court to do is to compound the offence which has not been held to be compoundable by the force of the statute and is covered by the prohibition contained in subsection (7) of section 345, Cr. P. C. This request of the learned counsel, therefore, in view of the prevailing situation of law, cannot be acceded to.
6. The learned counsel for the appellants next argued that in view of the compromise arrived at between the parties, benefit could be given to the appellants in so far as the quantum of sentence is concerned if convictions are upheld. He further submitted that such a course would bring to a close the multiple litigation which is going on between the two family factions. He also pressed into service the injunctions of the Holy Qur'an enjoining every Muslim to bring about reconciliation and compromise justly and equitably between two set of fighting Muslims who constituted a brotherhood. He further submitted that this duty would also be cast on every presiding officer of a Court who is a Muslim even in criminal matters.
7. The learned counsel appearing for the State Mr. Muhammad Yamin has cited before me a decision of the Supreme Court of Pakistan in the case of Khurshid Ahmed v. The State (1), for the proposition that the Court could interfere in appeal with the quantum of sentence where it was satisfied that the parties had compromised the matter in order to prevent further bitterness between the relations. The learned Supreme Court in such circumstances, on a petition being pressed on the ground of sentence only, considered it desirable in the interest of peace and good relations between the parties to reduce the sentence to the period already undergone by the appellants. In the precedent case arising out of a conviction for an offence under section 307, P. P.
C., the accused had been sentenced to suffer six years' R. I. And ply a fine of Rs, 500 The sentence was accordingly reduced to the period already undergone, i,e, about seven months.
' Apart from the case of Khurshid. Ahmed cited above, 1 further notice that the learned Supreme Court of Pakistan in two subsequent cases, namely, Muhammad Bashir v. The State (2) and Iftikhar Ahmed v. The State (3), which arose out of offences under section 302, P. P. C. Where only two penalties are provided, namely, death or imprisonment for life, has given benefit of compromise arrived at between the parties in the two cases by exercising their
(1) 1976 SC1VIR 193 (2) PLD 1982 SC 139
(3) PLD 1982 SC 277 ' discretion in altering the death sentences to the lesser penalty of imprisonment for life.
8. I have given due consideration to the submissions made by the learned counsel for the appellants which are also being supported by the learned counsel for the State.
9. The Qur'anic commands in point being quoted are verses 9-10 Sura Al-Hujurat (S. MAX). They read as under as per the English translation by A. Yusuf Ali (Vol. II, page 1405) :-- "9. If two parties among ' The Believers fall into ' A quarrel, Make ye peace ' Between them: but if ' One of them transgresses ' Beyond bounds against the other ' Then fight ye (all) against The one that transgresses ' Until it complies with ' The command of Allah ; ' But if it complies, then ' Make peace between them ' With justice, and be fair : ' For Allah loves those ' Who are fair (and just).
10. The Believers are but A single Brotherhood : So make peace and Reconciliation between your Two (contending) brothers ; And fear Allah, that ye May receive Mercy."
' I have bad the advantage of perusing the commentary on these Qur'anic verses by Maulana Abul A'la Maudoodi in his work 'Tafheem-ul-Quran'. The command of Almighty Allah is couched in clear terms and it enjoins every Muslim to act in obedience thereto. - Therefore, the proposition as being canvassed has much to commend itself.
10. The plea under consideration calls for examination of the state of statutory law. A perusal of the scheme of the Pakistan Penal Code would show that while prescribing punishment for various offences, the first category of those offences where any sentence upto a maximum is provided. The second category is of those cases where choice has been given to the Court in its discretion to award any of the two penalties prescribed, such as in case of section 302, P. P. C. Where the Court can after holding an accused person guilty of the offence either award death penalty or imprisonment for life. Then, the third category is of those offences where while prescribing a maximum punishment upto certain number of years, it has also been laid down that the punishment to be awarded shall not be less than that specified. In the present case, the offence is under section 307, P. P. C. Which does not fall in the third category as pointed out above, that is, it does not say that a person found guilty of this offence shall not be awarded less than the prescribed penalty. In so far as the scheme of law is concerned, in the matter of offences falling under the first category mentioned above, as is the position in the present appeal, the quantum of sentence to be awarded in the facts and circumstances of each case, within the limits laid down, has been left to the judicial discretion of the Courts. The Legislature has forbidden compounding of offences amounting to acquittal in non-compoundable cases as already noted but the field is open as regards discretion to award sentence in a given case on consideration of rapproachement reconciliation and compromise between the parties. So, enforcement of this plea being advanced on behalf of the appellants in the present case is not met by any statutory fetters standing in the way of this Court from exercising its judicial discretion in giving effect to it. In such like cases where the complainant and the injured person have pardoned the accused and the parties have settled their disputes to secure peace, I am clear in my mind that the circumstance can be treated by the Court hearing the appeal as a mitigating circumstance for awarding lesser punishment. The Court, of course, is to be satisfied that the parties in adopting the above course are motivated by the desire to abide by the command of Almighty Allah to secure peace by behaving like brethren-in-Islam and want to shun hostility and blood-feuds and that it is free from vitiative influences. Following of this course visibly has the wholesome effect of bringing about amity between two warring factions of Muslims. The village community, at the same time, shall stand relieved of the necessary concomitants of violence and strife such as constant agony, tensions and sense of insecurity generated by belligerency between the two factions.
11. I have examined this appeal on merits and gone through the material on the record as well as the judgment of the trial Court. The learned counsel for the appellants after arguing the appeal on merits of conviction was unable to make any debt in the case of prosecution so as to make out a case of acquittal. The accused-appellants are the persons named in the F. I. R. The eye-witness account is consistent with the prosecution version and their credibility remains unshaken. It has been rightly believed by the trial Court. The case unfolded at the trial on the strength of the evidence led, justified the conviction as the prosecution has succeeded in discharging its onus of bringing home the charge to the accused-appellants beyond reasonable doubt.
12. In the facts of this case, I am of the view that the plea of award of lesser penalty is acceptable on being satisfied that compromise/reconciliation is equitable, fair and just. It has been genuinely arrived at in good faith by competent parties and is not the outcome of coercion, intimidation or threats held by one faction to the other. The complainant, the injured person and the accused are parties to the compromise which has the blessing of their relatives and .That the sole motivating factor for moving this application for reduction of sentence is designed, in keeping with divine will, to achieve harmony, peace and to a turbulent era stretching over decades.
13. Before concluding, I consider it desirable to observe that the learned Advocate-General of Punjab, Sh. Riaz Ahmed, would do well in drawing the attention of the authorities concerned, to the desirability of introducing appropriate provisions in the Code of Criminal Procedure for making it obligatory for the Courts, at all levels i,e, during the original, in appellate and revisional proceedings to make an attempt to bring about a compromise/ E reconciliation between the fighting factions. It can be safely said on the basis of experience that such efforts are more often than not rewarding.
The stage for achieving this purpose is more appropriately set when the passions and emotions have rather cooled down with the passage of time which is a proverbial healer and thus chances of return to normalcy brighter. Following of this course appears to be in consonance with the spirit of the Qur'ani injunctions noticed above. In such an eventuality, responsibility would fall on the shoulders of the Court in case of a compromise to ensure that it is equitable and just as enjoined in the two Qur'anic verses. A mere provision in the Statute for giving opportunity to the parties for compormise/reconciliation without participation of the Courts may perhaps serve ceremonial purpose but would not be as efficacious as it ought to be. I feel sure that following of this course would also advance public policy by achieving public tranquillity and public interest would be served through saving of public time and expense.
14. It must be pointed out at the same time that in the absence of statutory .Sanctions for adoption of an above-board compromise course in criminal matters, the same purpose is sought to be achieved in most cases by interested parties through underhand means. They, as per necessity, are driven to adopt dubious devices and tell deliberate lies in the face of the Court. The usual practice in such like cases is that prosecution witnesses including the complainant resize and do not support the prosecution case at the trial stage. In the alternate, they make concessions or introduce contradictions during the cross-examination as are sufficient to knock the bottom out of the whole case. The Courts of law obviously cannot convict in the total absence of evidence or for want of sufficient evidence of the quality which could lead to the inference of guilt of the accused beyond any reasonable doubt. In practical reality, the parties adopt their own extra legal ways to give effect to the private compromises. These aspects are too well-known to those who have experience of criminal trials. It is rather anomalous that a set of persons who compromise out of the Cowl in non-compoundable offences through suppression of facts manage to get acquittals by hoodwinking the law whereas those who wish to adopt the honest course and take the Court in confidence are not sure of the, treatment that they would receive and the fat they would meet. The uncertainty of the situation would, therefore, continu to make the people prone to believe that adoption of ignoble means to achieved noble end of securing peace and harmony pays dividends.
15.. This unhappy trend is also embarrassing for the trial Courts. I such a situation, it is tragic, that these Courts act as passive spectators and have to continue with a farcical legal ceremony of a virtual mock trial b recording perjured/false evidence. The truth is thus suppressed and sacrificed at the altar of expediency which in turn is bound to give rise to the erroneous belief that falsehood prospers. The harmful effects of this undesirable practice are too numerous to be listed. It should suffice to observe that is amounts to allowing premium on deliberate lies. There is no sanction for such a course in Islam and indeed such acts or tendencies being despicable are deprecated."
16. It is in this manner and under such circumstances, that the sanctity and solemnity of Court proceedings and the oaths administered are being eroded, day by day, wittingly or unwittingly, by the parties to criminal litigation. The moral fabric of the society is thus bound to be torn into shreds, slowly but surely. This happens daily right under our noses Is it not too much for the trial Courts to watch as silent spectators a drama being staged despite themselves being participants in it? The evil practice is bound to have far serious repercussions and may shake the very faith of the people in any judicial system. It needs to be emphasised that faith and confidence of the people in the Courts constitutes the bedrock of their beneficial existence and sine qua non for successful functioning.
17. It falls for further consideration as to how the trial Courts are to proceed when confronted with a farcical trial of the nature spelt out above. Should the Court not be put on inquiry and after lifting the veil ascertain the truth ? On discovery so made, if found to be a bona fide case of compromise already arrived at, out of the Court, by concerned parties, in suitable cases through above-board procedure, the trial Court on being satisfied about the pre-conditions for such a course being fulfilled, proceed to treat it as a mitigating circumstance and award any permissible sentence in exercise of judicial discretion. The inquiry so held by the Court would have the additional advantage of separating the grain from the chaff and thus detecting cases of suborning of prosecution witnesses either through pressure tactics or winning them over through temptations or virtual bribe. The cases falling in the latter category can then be deterrent dealt with in accordance with law.
18. However, in other cases, where the compromise has been arrived at in Court, it would have the tremendous advantage of the arrangement being equitable and just which would be the duty cast on the Courts to ensure. Due observance of this paramount requirement would obviate chances of deceit and gaining of undue advantage by the hypocrites.
19. Speaking in the lighter vein, it may be stated for the benefit of the learned Advocate-General that observations made by the superior Courts since good old days have traditionally been treated by the other limbs of the. State like a fire alarm' rather than a customary 'wake up call'.
20. For reasons stated, this appeal is partly accepted to the extent that sentence of all the three appellants is reduced to one already undergone by them. The appellants who are on bail shall be relieved of their bail bonds. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.