' This revision petition is directed against the order dated 7-2-2002 passed by the learned Additional Sessions Judge, Depalpur whereby he had dismissed an application of the petitioners filed under section 265-K, Cr.P.C.
2. The brief facts of the case are that an F.I.R. No,97/2002 was registered under sections 302/34, P.P.C. On 24-2-2001 in Police Station Saddar, Depalpur and wherein the petitioners had been nominated as accused. According to the contents of th'e F.I.R., the petitioners were alleged to have caused the death of Suleman, the father of Rustam Ali, complainant. After the investigation the challan was submitted in the Court and the case was pending in the Court of the learned Additional Sessions Judge, Depalpur. An application under section 265-K, Cr.P.C. Was filed on behalf of Barish Ali and Ghulam Muhammad petitioners before the learned trial Court praying that 'they be acquitted in this case as they were quite innocent in this case and had effected a compromise with the complainant party in the presence of `Punchayae held at the Dera of Mian Nizam Tariq Bodla and had made payment of Rs,1,50,000 to the complainant party and that the complainant party had submitted its affidavits as well in the Court of the learned Additional Sessions Judge (at the time of the hearing of the application for pre-arrest bail) and that on account of the compromise the learned Additional Sessions Judge, Depalpur had accepted the application for pre-arrest bail on 28-4-2001.
' It was thus prayed by them that they be acquitted under section 265-K, Cr.P.C.
3. After hearing the arguments the learned trial Court dismissed the said application on 7-2-2002.
Aggrieved of the said order the petitioners have filed this Revision Petition.
4. I have carefully heard the arguments. The learned counsel for the petitioners has argued that the learned Additional Sessions Judge; Depalpur had failed to properly appreciate the principle of law enunciated by the Honourable Supreme Court of Pakistan and had also ignored the mandate of Article 189 of the Constitution and the principle of law pronounced by the Honourable Supreme Court of Pakistan as reported in Syed Iftikhar Hussain Shah v.Syed Sabir Hussain Shah (1998 S.C.M.R 466) and which is in fact fully applicable in the instant case. He has argued that the learned Additional Sessions Judge, Depalpur did not appreciate the provisions of section 345, Cr.P.C. And that the compromise once effected between the parties is valid and cannot be revoke by the parties unilaterally. He has argued that the learned Additional Sessions Judge has over-looked and misread paras 2 and 3 of the bail granting order wherein it had been clearly noted that the complainant and the legal heirs of the deceased had appeared before the Court and supported the contents of their affidavits and further that the Court had accepted the compromise after its satisfaction that the compromise had been voluntary in nature. He has argued that the learned trial Court had wrongly dismissed the application of the petitioner under section 265-A, Cr.P.C. And that in view of the fact that the matter had been compromised between the parties and the offence had been compounded, the petitioners were entitled to be acquitted.
5. The learned Additional A.G, has however, controverted the arguments of the learned counsel for the petitioners and has argued that the learned Additional Sessions Judge, Depalpur had passed a proper and legal order and that the cases falling under. Section 345(2), Cr.P.0 can only be compounded when prosecution regarding which offence was pending before the competent Court and any compromise was not to be given any value unless it was sanctioned by the Court as envisaged under section 345(2), Cr.P.C. .
6. Section 345(2), Cr.P.C. Provides that the offences punishable under the sections of the Penal Code specified in the first two columns of the table (mentioned in the said section) with the permission of the Court before which any prosecution for such an offence is pending, be compounded by the persons mentioned in the third column of that table.
7. It is a clear position that in fact no prosecution for the offence in question was pending before the learned trial Court when the alleged compromise had been effected between the parties and it is an admitted fact that by then challan had not been submitted in the Court and the case at the stage of investigation. It is appreciated by this Court that the learned counsel for the petitioner Syed Shabbar Raza Rizvi provided a lot of legal assistance to the Court at the time of arguments on this revision petition. Besides citing the relevant case-law, he placed reliance on a number of authoritative books on law and Islam and quoted at length from the same. During his arguments he referred to the case of Biz Muhammad v. The State (2000 PCr.LJ. 553 (Federal Shariat Court); Syed Sabir Hussain Shah and another v. Syed Iftikhar Hussain Shah (1995 MLD 563 (Karachi) Syed Iftikhar Hussain Shah v: Syed Sabir Hussain Shah (1998 SCMR 466); Rana Awais and others v. S.H.O.
Police Station People's Colony Faisalabad and others (2001 PCr.LJ 241 (Lahore); Muhammad Nazir alias Jeera v. State (PLD 2001 Lah. 212); Province of the Punjab through Secretary, Health Department v. Dr. S.Muhammad Zafar Bukhari (PLD 1997 SC 351) and Syed Alamdar Hussain Shah v.Abdul Baseer Qureshi and 2 others (PLD 1978 SC 121).
8. In the light of the authorities relied upon by the learned counsel for the petitioners it is clear that although an offence can be compounded by the parties with the permission of the Court before which any prosecution for such an offence is pending, yet the concept of waiving the right of Qisas or compounding the offence is not restricted only to the cases pending before the Court, but these provisions can be invoked at any time before execution of sentence and Court is always competent to entertain and give effect to the compromise between the parties even after decision of the case and would not be functus officio in matters of compromise. The question now arises as to whether an offence can be compounded even at bail stage and if so, whether a compromise arrived at (at bail stage) can be given effect subsequently after the submission of challan (when the case comes up before the Court for hearing). In the light of the authorities reported as 1995 MLD 563 (Karachi) and 1998 S.C.M.R. 466 (Supreme Court of Pakistan) it is clear that the compromise or compounding of an offence having taken place at bail stage, can be acted upon by the Court subsequently as well when the main case comes before it for hearing. In my view, in the instant case, the learned Additional Sessions Judge was unable to interpret the aforesaid authorities in the proper perspective.
9. The learned counsel for the petitioners has asserted in this case that the legal heirs of the deceased had been compensated at the bail stage and it was due to the said reason that they had filed affidavits at the bail stage and by appearing in the Court of learned Additional Sessions Judge had affirmed the contents of the affidavits wherein it had been stated by them that they will have no objection if the accused were admitted to bail or were acquitted in the case. It is not understandable how it was possible for the legal heirs of the deceased to rid themselves of the implications of their affidavits submitted before a Court of law. I agree with the learned counsel for the petitioners that the compromise effected between the parties even at bail stage remains valid and cannot be revoked by any of the parties unilaterally, when the case comes up later before the Court for trial. The only thing which the Court has to do is to satisfy itself whether the compromise had been actually effected between the parties at bail stage.
10. In view of what has been stated above, the revision petition is accepted, the impugned order dated 7-2-2002 is set aside and the matter is sent back to the learned trial Court with the direction to re-hear the arguments on the application so as to satisfy itself whether the offence had been actually compounded at the bail stage and in case the learned trial Court reaches such a conclusion, it shall act in the light of the pronouncement of the Honourable Supreme Court of Pakistan, reported in Syed Iftikhar Hussain Shah v. Syed Sabir Hussain Shah (1998 SCMR 466).