' This appeal is directed against judgment, dated 1-4-1997 passed by Additional Sessions Judge, Panjgur whereby the accused/appellant has been convicted under section 394, P.P.C. And sentenced to four years' R.I. And to pay a fine of Rs,5,000 or in default, thereof to further undergo imprisonment for three months.
2. Briefly stated, the prosecution case as gathered from the record is that on 30-12-1995 report was lodged by one Gul Muhammad son of Muhammad Khalil at Panjgur Police Station wherein, it was alleged that the complainant was originally resident of Faisalabad and was working as a Mason at Panjgur for the last about 14/15 years. About a year back he had purchased goods i,e, shuttering articles from one Ghulam Muhammad Sindhi resident of Sarwan Khudabadan against price of Rs,6,000. A sum of Rs,3,000 was paid at the time of receiving the goods whereas, the balance amount was promised to be paid later on. It was further alleged that in the last month said Ghulam Muhammad contacted the complainant and asked him to pay the balance sale price of the goods instead of him, to one Munir Ahmad, shopkeeper as he i,e, Ghulam Muhammad was going to Sindh.
It was further alleged in the report by the complainant that despite above direction Sudheer son of Ghulam Muhammad came to him and demanded the price (sale price) of the goods from him and on his refusal forcibly snatched his Honda Motorcycle 125 cc from his younger brother namely Muhammad Rafique on 29-12-1995. However, subsequently, due to the intervention of said Munir Ahmad, shopkeeper, motorcycle was returned to him. It was also alleged that on the day of occurrence, at about 6-45 p.m., when the complainant was going towards his house, near Asghar Petrol Pump he was intercepted by two unknown dacoits, who had muffled their faces. The dacoits after abusing him, fired at him and forcibly snatched his motorcycle. The complainant suspected that since the accused/appellant was annoyed on the return of motorcycle, therefore, he might have committed the offence. On the stated allegations F.I.R. Bearing No,136 of 1995 under section 17(2)(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 was registered at Police Station Panjgur and investigation was initiated in pursuance thereof. On the completion of investigation the accused/appellant was challenged to the Court for trial.
3. At trial, the prosecution in order to prove the charge and substantiate the allegations leveled against the accused/appellant produced four witnesses, in all. P.W.1 GuI Muhammad, complainant, reiterated the version contained in the F.I.R. And deposed that though he had initially given name of the appellant in the F.I.R. Yet, he was innocent. The complainant was declared hostile by the learned District Attorney and was also permitted to be cross-examined by him. In the course of his cross-examination he admitted the suggestion as correct that he was fired at by the dacoits and that he had sustained two bullet injuries. He also admitted the suggestion as correct that a day prior to the day of occurrence, appellant Sudheer, had forcibly snatched from his brother, Muhammad Rafique, the Honda Motorcycle. He, however, voluntarily stated that the motorcycle was returned by accused/appellant at the instance of Munir Ahmad. P.W.2 Badal son of Yar Muhammad is father-in-law of the complainant. He deposed that on the day of occurrence complainant came to him at about 8-00 p.m. And reported that two unknown persons after injuring him had forcibly snatched his motorcycle. He further deposed that subsequently clothes of the complainant were taken into possession by the S.H.O. In his presence vide memo. Exh.P.W./2-A.
The witness identified his thumb-impression thereon. P.W.3 Dr. Abdul Samad is the doctor who had examined the complainant on the day of occurrence at about 9-00 p.m. He found the following injuries on the person of the complainant:-- "(1) Multiple small rounded wound on right hypochondria.
(2) Multiple small rounded wound on right front thigh.
(3) Multiple small rounded wound on left middle side of the thigh.
(4) Multiple small rounded wound on-left lower side of thigh."
' P.W.3 was of the opinion that the injuries were fresh and were caused by use of fire-arm. The witness produced in Court medical certificate Exh.P.W.3-A and identified his signature thereon.
P.W.4 Abdul Wahid, S.-I. Police, is the Investigating Officer. He deposed that after registration of the case S.-I. Abdul Rashid had conducted investigation in the matter, who had prepared site plan Exh.P.W./4-A, visited the site, took into possession clothes of the complainant vide memo.
Exh.P.W./2-A, also took into possession one empty cartridge vide memo. Exh.P.W./4-B. He deposed that in the case the accused/appellant had procured compromise deed from the complainant by advancing threats to him. He produced in Court the compromise deed as Exh.P.W./4-C and relinquishment deed as Exh.P.W./4-D. The witness deposed that later on, investigation in the case was also partially conducted by him. He identified the signatures of Muhammad Anwar, S.H.O., on memo. Exh.P.W./4-E. In the course of his cross-examination he refuted the suggestion as incorrect that the complainant had nominated the accused/appellant due to business dispute.
4. On the completion of prosecution evidence the accused/appellant was examined under section 342, Cr.P.C. As well as, under section 340(2), Cr.P.C. In his statements he denied the charge and pleaded that he was innocent. He, however, declined to lead any evidence in his defence.
5. After hearing arguments of the parties the learned Trial Court convicted the accused/appellant and sentenced him to the punishment as mentioned in the opening para. Hereof.
6. I have heard Mr. Tahir Iqbal Khattak, Advocate, learned counsel for the appellant and Malik Sikandar Khan, Advocate-General, Baluchistan on behalf of the State and have also gone through the relevant record with their help.
7. Learned counsel for the appellant has contended that the learned Trial Court in convicting the appellant has solely relied upon the compromise deed allegedly executed by the parties and has wrongly taken the same as an incriminating circumstance against the appellant. Otherwise, not an iota of evidence was available on record to connect the accused with the commission of the offence so much so that the complainant himself, at the trial, had exonerated the appellant from the charge. He added that the irony of fate is, that the compromise deed in question has neither been produced by the appellant nor has been admitted to be true. On the contrary it has been produced on record by the Investigating Officer, who has had no concern therewith, yet the learned lower Court has relied upon this unproved statement as legal evidence. Learned counsel for the appellant maintained that in these circumstances the conviction and sentence recorded against the appellant was not sustainable. Malik Sikandar Khan, Advocate-General, Baluchistan having been confronted with the proposition candidly conceded that the conviction and sentence recorded against the appellant by the Trial Court on the basis of the said compromise deed alone was not sustainable in law.
8. Notwithstanding the fact that the learned Advocate-General, Baluchistan has not controverted the contention raised by the learned counsel for the appellant, I have given my anxious consideration to the above contention. It is well-settled that once a case is brought before the Court of justice, no pardon or compromise is admissible in crimes entailing Hudood, if the matter is related to the right of public or "Haqooq Ulla". However, forgiveness or compromise is effective in Ta'zir case if the matter concerns "Haqooq-ul-Ibad". In this regard elaborative discussion has been made by this Court, in the cases of Pervez Iqbal v. The State reported as PLD 1985 FSC 134 and Ghulam Muhammad v. Mst. Murad Bakhta and 6 others. However, to my mind, a compromise entered into by the parties, by no stretch of imagination could be taken or considered as an incriminating piece of evidence or circumstance against the accused. Rather, Islam is in favor of Afw ( ) pardon. This subject has been exhaustingly dealt with by this Court in the case, Habib-ul- Wahab Alkhairi v. Federation of Pakistan reported as PLD 1991 FSC 236. However, even if the act of compromise between the parties in Ta'zir cases is taken "as implied extrajudicial confession" even then, it would not be sufficient to create incriminating circumstances, therefore, learned Trial Court was not justified to read in evidence the compromise deed in question against the appellant. In the instant case there is no other evidence to base conviction thereon, therefore, the conviction recorded against the appellant is not sustainable. Resultantly this appeal is allowed. The conviction and sentences recorded against the appellant by the learned Additional Sessions Judge, Panjgur are set aside and he is acquitted of the charge. He shall be set at liberty forthwith if not wanted in any other case.