20/09/2022
Great judgment on compromise with absconding accused only single one (ZAHID HUSSAIN CHANNA )
(a) Criminal Procedure Code (V of 1898)---
----S. 345(2)---Penal Code (XLV of 1860), Ss.302/147/148/149---Qatl-eĀ-amd---Compounding of offence---Scope---Trial Court vide impugned order had granted permission to legal heirs of the deceased to compound the offence with the accused facing the trial and refused the same regarding the four co-accused on the ground of their being absconders---Contention of prosecution was that under S.345(2), Cr.P.C. compounding of offence could take place only when prosecution of such offence was pending and since the prosecution was not pending in respect of the four absconders, no compromise with them could be made---Held, criminal proceedings stood initiated the moment cognizance was taken by the Magistrate and, the matter was sent to the court competent to try the offence---Legal heirs of the deceased, therefore, could compound the offence even against the absconders---Spirit behind S. 345(2), Cr.P.C. is that of "Affwo" and "Derguzar"---Under Islamic Law there is no provision that in a case of compoundable offence the accused can be forgiven only when he agrees to being forgiven---Plea of prosecution that unless the absconders appear before the court offence could not be compounded was not correct---Legal heirs of the deceased in their application had specifically stated that they were seeking permission for compromise with the present accused as well as the absconding accused---Trial Court, thus, could not disallow the application against the absconders---Impugned order was consequently set aside and all the accused persons were acquitted under S.345(6), Cr.P.C. in the case---Revision petition was allowed accordingly.
Muhammad Nawaz v. the State 1998 MLD 1; Muhammad Irshad alias Shada v. The State 1997 SCMR 951; Azizullah and others v. Addl. Sessions Judge, Mora Criminal Revision Application No.69 of 2010; Muhammad Arshad alias Pappu v. Addl. Sessions Judge, Lahore and 3 others PLD 2003 SC 547; Ghulam Farid alias Farida v. The State PLD 2006 SC 53; Ismail Abdul Rahman v. Muhammad Sadiq and 3 others PLD 1990 Kar. 286 and Wharton's Law Lexicon by A,.S.Oppe, 14th Edn. (1976 Reprint) p.810 ref.
Wali Muhammad and 7 others v. The State and 2 others 2008 MLD 1123 dissented from.
(b) Words and phrases---
--"Prosecution"-Connotation.
Ismail Abdul Rahman v. Muhammad Sadiq and 3 others PLD 1990 Kar. 286 ref.
(c) Constitution of Pakistan---
----Art. 13-"Prosecution"-Meaning---Word "Prosecution" as occurring in Art.13 of the Constitution would mean initiation or starting of proceedings of criminal nature before a court of law or a judicial Tribunal in accordance with the .procedure prescribed in the statute which creates offence.
P L D 2012 Sindh 35
Before Shahid Anwar Bajwa and Muhammad Ali Mazhar, JJ
MANZOOR AHMED and another---Applicants
Versus
2ND ADDITIONAL SESSIONS JUDGE, GHOTKI and another---Respondents
