' The brief facts of the case in hand are that Syed Iftikhar Hussain Shah (respondent) lodged a report in P.S. Havelian wherein he charged Syed Sabir Hussain Shah and Syed Zakir Hussain Shah (petitioner) for having inflicted blows on his nose with a knuckle-duster. The motive for the offence so committed was stated to be a dispute in the family as both the parties are closely related. In consequence thereof, a case under section 336/34, P.P.C. Was registered vide F.I.R. No,331 dated 25- 12-1991 in Police Station Havelian.
2. The petitioners who apprehended their arrest in the case registered against them, applied for pre-arrest bail before the learned Additional Sessions Judge. They were granted interim pre-arrest bail on 14-1-1992 and the bail before arrest was adjourned to 18-1-1992 for hearing the arguments. It appears that the matter was patched-up between the parties and as such the respondent, who had lodged the F.I.R. Appeared before the learned Additional Sessions Judge voluntarily and stated that the matter had been patched-up between the parties. Since the parties had compromised, therefore, the learned Additional Sessions Judge recorded the statement of respondent Syed Iftikhar Hussain Shah (complainant) which is to the following effect:- "On my report a case under section 336, Qisas and Diyat Ordinance, read with section 34, P.P.C. Was registered against Zakir Shah and Sabir Shah accused-petitioners vide F.I.R. No,331 dated 25-12-1991 at P.S. Havelian. Accused-petitioners are my cousin and there is no previous enmity between us, therefore, we have patched-up the matter amicably and I have received Rs,4,000 i.e, Rs,2,000 from each of the accused today in Court. I have got no objection on the confirmation of their bail."
3. As a result of this statement made by the complainant the learned Additional Sessions Judge (Mr. Mukhtiar Ahmed Khan) passed the following order on 18-1-1992:-"Accused-petitioners are present with their counsel. S.P.P. For the State also present. Record received. Complainant Syed Iftikhar Hussain Shah is present and stated that he has patched-up the matter with the accused- petitioners. In this connection, his statement recorded and placed on file. The accused-petitioners also paid Rs,4,000 to the complainant in presence of the Court as compensation.
' In view of the statement of the complainant, I confirm the ad interim pre-arrest bail granted to the accused-petitioners. File be consigned to the Record Room after completion."
4. The learned counsel for the petitioner Mr. Khan Afsar Khan, Advocate submitted that since the matter had been patched-up and the respondent/complainant had also received Rs,4,000 from the petitioners (Rs,2,000 from each of the petitioners-accused) in the Court, therefore, the learned Additional Sessions Judge should have directed the trial Court to acquit the petitioners-accused as and when the challan was put in the Court. In this respect, he placed reliance on the judgment of His Lordship Mr. Justice Jalal-ud-Din Akbarji passed on 2-10-1993 in Criminal Miscellaneous No,177 of 1993 wherein His Lordship has held as under:--- "In view of the statement recorded today in Court and placed on the file the offence has been compounded and the accused-petitioner is allowed bail in the sum of Rs,10,000 with two sureties each in the like amount to the satisfaction of the Ilaqa Magistrate. The accused-petitioner in the case will be acquitted by the learned Magistrate under section 345, Cr.P.C. When the challan is put in the Court."
5. The learned counsel for the petitioners further submitted that the S.H.O. Of P.S. Havelian submitted complete challan before EA.C.-I, Abbottabad who on 9-6-1993 framed the charge against the petitioners accused under section 336/34, P.P.C. He stated that the petitioners accordingly submitted an application before the said E.A.C. And requested therein that since the matter had been patched-up between the parties, therefore, they should be acquitted. This could not, however, be done because the respondent/complainant Syed Iftikhar Hussain Shah resiled from his composition and accordingly the application of the petitioners-accused was rejected by the EA.C. On 19-12-1992.
5. Aggrieved by this order, the petitioners filed a revision petition before the learned Additional Sessions Judge, Abbottabad and assailed the findings of the learned EA.C. The learned Additional Sessions Judge, Abbottabad while disposing of the revision petition directed the said Magistrate to send the case to the learned Sessions Judge, Abbottabad, as according to him the EA.C.- I/M.I.C.
Had no jurisdiction to take cognizance of the case. The Magistrate complied with the order of Additional Sessions Judge and sent the case to the learned Sessions Judge, Abbottabad for trial, who took the cognizance of the case and framed the charge against the petitioners-accused.
6. Once again the petitioners-accused moved an application before the learned Sessions Judge wherein they reiterated their contention that the matter had been compromised and as such they deserve to be acquitted not as a matter of grace but as a matter of right. The learned Sessions Judge, however, did not agree with their proposition and by his order dated 4-8-1993 dismissed the application. Hence this revision for the redress of their grievance.
7. I have heard the learned counsel for the parties in detail and have also gone through the record of the case carefully.
8. It is not denied that the parties are closely related and that they had entered into a compromise when the pre-arrest bail application of the petitioners-accused was pending in the Court of Additional Sessions Judge, Abbottabad. It is also clear from the record that the respondent- complainant had appeared in the Court and had stated before the learned Additional Sessions Judge that the matter had been compromised. It was for this reason that his statement was recorded by the learned Additional Sessions Judge and was placed on file and, on the basis of that, the pre-arrest interim bail granted to the petitioners-accused was confirmed. The order of the learned Additional Sessions Judge has been reproduced in verbatim in para. No,3 above.
9. The learned counsel for the petitioners-accused submitted that where the offence is compoundable by the parties without the consent of the Court and if it is so compounded, thereafter the trial Court cannot proceed with the case and has to acquit the accused. He further submitted that once the compromise/composition is effected/entered into then the same cannot be withdrawn. According to him, in case where a compromise has been effected the complainant is not allowed to resile from the same and insist that the case against the opposite-party must proceed. In this respect, reliance was placed by the learned counsel for the petitioners on the following cases reported in:---
(1) AIR 1930 All. 409 (Jhangtoo Barai and another v. Emperor).
(2) AIR 1939 Pat. 141 (Dharichhan Singh and others v. Emperor).
10. The learned counsel for the petitioners-accused, therefore, stated that by accepting this petition the order of the learned Sessions Judge, dated 4-8-1993 be set aside and the learned Sessions Judge, where the trial against the petitioners-accused is pending, be directed to acquit the accused-petitioners on the basis of the compromise entered between the parties on 18-1-1992.
11. On the other hand, the learned counsel for the respondent/complainant Mr. Ghulam Mujtaba Khan Jadoon, Advocate submitted at the Bar that the authorities referred to above were not applicable to the facts of this case inasmuch as in those cases the compromise was effected during the course of the trial/conviction. He further stated that the facts of the case in hand are quite different. According to him the respondent/complainant had compromised with the petitioners-accused to the extent of confirmation of their pre-arrest bail. He accordingly prayed that the petition be, therefore, dismissed.
12. I am not impressed by the arguments advanced by the learned counsel for the respondent/complainant and am of the considered view that the sole question which has to be determined by this Court is as to whether or not there was a composition/compromise on 18-1- 1992 between the parties when the respondent/complainant out of his free will and without any compulsion appeared before the learned Additional Sessions Judge and gave a statement in the Court that the matter had been patched-up between the parties. Not only this that the complainant had stated before the Court on oath that the matter had been patched-up between the parties and he also received a sum of Rs,4,000 (Rs,2,000 from each of the accused) inside the Court and, to this effect, his statement was recorded by the learned Additional Sessions Judge. In my opinion, once a compromise has been effected it cannot be withdrawn and I am also clear in my mind that it is incompetent for any person, once having entered into a valid composition/compromise to withdraw from the same.
13. In the circumstances this revision petition is accepted, the order of the learned Sessions Judge dated 4-8-1993 is set aside and he is directed to acquit the accused-petitioners as and when the case is fixed before him for hearing.