PLJ 2022 Cr.C. 765
[Lahore High Court, Bahawalpur Bench]
Present: Muhammad
Amjad Rafiq, J.
Malik MUHAMMAD EJAZ CHANNAR--Appellant
versus
STATE
etc.--Respondents
Crl. A. No.
161 of 2014, heard on 7.10.2021.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 345--Illegal Dispossessions Act, (XI of 2005), S.
3--Compoundable offence--Second schedule of Cr.P.C. shall also be applicable
where under title “Offences against other laws” it is mentioned in column No. 6
as all offences are “not compoundable”--Now it is trite that until legislature
makes offence in special laws (other laws) compoundable, it would be considered
as non-compoundable--Entries in second schedule of Cr.P.C. could only be
surpassed if special law gives a different status to offences punishable under
that law, as legislature in case of Illegal Dispossession Act, 2005 has
declared offences under this Act as non-cognizable; otherwise in second
schedule offences against other laws which are punishable up to seven years and
above are shown cognizable--Question of application of Section 345, Cr.P.C. on
offence under Illegal Dispossession Act, 2005 also does not arise because
Section 345, Cr.P.C. talks and tabulates offences under, P.P.C. only--It is
safely concluded that offence u/S. 3 of Illegal Dispossession Act, 2005 is not
compoundable. [P.
769] A
2020
PCr.LJ (Note) 20 Sindh.
Non-Compoundable Offence--
----A compromise in non-compoundable offence is considered only
a mitigating circumstance for reduction in sentence. [P.
769] B
PLD 2006 SC 53, 2004 SCMR 1170, PLD 2014 SC
383, 2006 SCMR 1703, 2012 SCMR 140 & PLD 2007 SC 447.
Acquittal on Compromise--
----Seeking acquittal on basis of compromise can only allowed
if prosecution is withdrawn with consent of Court by public prosecutor or by complainant
as case may be--To understand scheme of law, it would be appropriate to
highlight relevant arrangements available in law. [P. 770] C
Express Provision and Specific Prohibition--
----General application of code of
criminal procedure on a special law for procedures not ‘specified or
prohibited’ is principle of law embodied in two philosophies under touch of “express
provision and specific prohibition” which leads when Court finds no other
way to advance cause of justice in any given circumstances--It equally carries
weight that if provision of law which rails proceedings during trial can also
be stretched at level of appellate stage to give effect to contentions of respective
parties. [P.
771] D
Criminal Procedure Code, 1898 (V
of 1898)--
----Ss. 249-A/265-K, 245/265-H,
243/245(2), 345(6) & 494--A criminal trial though is controlled by Court
yet parties are also authorized to terminate same at any stage, requesting Court
to stop prosecution--We know criminal trial is concluded/ terminated with three
main results; 1st, either accused earns premature acquittal u/S. 249A/265K or
acquitted after full dressed trial u/S. 245/265H, Cr.P.C. or convicted u/S.
243/245(2) or 265H (2), Cr.P.C.; 2nd, when parties entered into compromise and accused
is acquitted; because effect of such compromise is of acquittal as embodied in
Section 345 (6) of Cr.P.C. 3rd, when public prosecutor opts to withdraw from
prosecution which is regulated u/S. 494, Cr.P.C. read with Section
10(3)(e)&(f) of Punjab Criminal Prosecution Service (Constitution,
Functions and Powers) Act, 2006 and such withdrawal during trial amounts to
acquittal of accused from charges--Principle of Nolle Prosequi or withdrawal
from prosecution has well been explained by Hon’ble Supreme Court in cases. [P. 771] E
PLD 1977 SC 451 and PLD 1981 SC 617.
Criminal Procedure Code, 1898 (V
of 1898)--
----Ss. 190/200/202 & 248--When
a complaint is processed u/S. 190 read with Section 200/202 Cr.P.C., it can be
withdrawn u/S. 248 Cr.P.C. during trial and it also results in acquittal of
accused--No further trial can be conducted later as it amounts to double
jeopardy--Section 248, Cr.P.C. does not fall within exceptions to Section 403,
Cr.P.C. though such section recognizes following situation where Section 403,
Cr.P.C. shall not apply. [P. 771] F
Withdrawal of Complaint--
----If complaint is withdrawn during that stage, result shall not
be in acquittal of accused--If complaint is withdrawn during trial, complaint
shall not be dismissed rather accused would stand acquitted. [P. 772] G
1994 SCMR 1137, PLD 2002
SC 687 and 2008 MLD 816 Lahore.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 248--There is no cavil to proposition that complaint can
be withdrawn during trial u/S. 248, Cr.P.C. but once accused is convicted and
an appeal against conviction is pending, whether complaint on basis of
compromise or on any other reason could be withdrawn is query that is to be
answered in this case. [P. 772] H
Criminal Procedure Code, 1898 (V of 1898)--
----S. 248--Withdrawal of complaint--There are two
preconditions for permission to withdraw complaint, which are as follows:
i. Before final
order is passed
ii. Satisfy that
there are sufficient grounds
Final order,
obviously means an order of acquittal or conviction upon conclusion of trial
whereas sufficient grounds may entail out of Court settlement for any
consideration, or demise of parties or loss is made good or any alternate
dispute resolution. Depending upon circumstance of case, Court can either grant
or withhold permission--Withholding of permission may amount to continuation of
prosecution even through any other person. [Pp.
772 & 773] I
Criminal Procedure Code, 1898 (V of 1898)--
----S. 248--Withdrawal of complaint--In Section 248, Cr.P.C.
word “final order” connotes culmination of proceedings up to last remedy
available to parties to over turn decision of trial Court because final order of
acquittal or conviction can also be passed on an appeal before superior Courts;
therefore, Section 248, Cr.P.C. would be available during proceedings before
appellate Court as well--Even otherwise, it is trite that appeal is considered
as continuation of trial. [P.
773] J
2001 SCMR 84, 2004 PCr.LJ 874 (Lahore), 1999
MLD 1374 (Lahore), 1989 MLD 3967 (Lahore), 1987 PCr.LJ 1728 (SC AJ&K), 1985
PCr.LJ 2638, 1971 PCr.LJ 39 (Lahore).
Criminal Procedure Code, 1898 (V of 1898)--
----S. 248--Illegal Dispossession Act, (XI of 2005), S.
9--Withdrawal of complaint--Application of code-- Section 248 Cr.P.C falls in
Chapter XX of Cr.P.C. which relates to trial by Magistrate whereas trial by
Court of Session is regulated under Chapter XXII-A, Cr.P.C., contention that Section
248 Cr.P.C. shall not be available to Court of Session is a question that has
its different outcome in light of provisions of Illegal Dispossession Act, 2005--Above
clarifies that offences under Illegal Dispossession Act shall be tried by Court
of Sessions, but it does not specify application of Chapter XX or
XXII-A for purpose of trial as usually supplied through legislation for Courts
which work under special laws--In this law even under section-5, mode of
inquiry and investigation is entirely different as to one mentioned u/S. 202,
Cr.P.C. therefore, when there is contrast which principle is to follow, either
principle of specific prohibition or principle of express provision, circumstances
always lean toward specific prohibition--As there is no specific prohibition
with respect to application of Section 248, Cr.P.C. on complaint under Illegal
dispossession Act, 2005; therefore, such provision shall be available to Court
trying such complaint--The provision of Section 9 of this Act also supports what
has been discussed above--As here in instant case parties have entered into
compromise upon some consideration as a result of an out of Court settlement,
therefore, complainant present before Court states that she does not want to
pursue case any more and opts to withdraw her complaint and in this respect,
she has also submitted a compromise deed between parties Mark-A wherein she
agrees to withdrawal of her complaint; therefore, withdrawal of complaint is
allowed. [Pp.
773 & 774] K, L & M
Ch. Riaz Ahmad, Advocate for Appellant.
Malik Muhammad Latif, Additional Prosecutor General for
State.
Mr. S. M. Areeb, Advocate for Complainant.
Date of hearing: 7.10.2021.
Judgment
Precisely the backend facts of the case as narrated by Mst.
Sumaira Ahsan (respondent/complainant) in a complaint filed under Section 5 of
the Illegal Dispossession Act, 2005 carried the allegation against Malik
Muhammad Ejaz Channar accused/appellant that he with the abetment of some
others, forcibly entered into her house and illegally dispossessed the
complainant from the plot owned and possessed by her. The accused/appellant was
summoned and while facing trial, vide judgment dated 03.04.2014 passed
by learned Additional Sessions Judge, Bahawalpur, he was convicted under
Section 3(2) of the Illegal Dispossession Act, 2005 and sentenced to
imprisonment for eight years with fine of Rs. 50,000/-, in default to further
undergo six months; also ordered to pay Rs. 50,000/-compensation to the
complainant or in default to further suffer six months imprisonment. Further
the Officer Incharge of police station Cantt, Bahawalpur was directed to
restore/handover the possession of the property/premises in question to the
complainant, immediately. Appellant assailed said conviction and sentence
through present appeal No. 161/2014.
2. The learned counsel for the
respondent/complainant Mst. Sumaira Ahsan submitted before this Court a
compromise deed executed between the parties, which is placed on the file as MARK-A.
The crux of the said deed is that disputed property has already been taken back
by the complainant, the documents of her sole ownership have been admitted by
the accused/appellant, there remains no dispute between them and thus she has
no objection on acceptance of appeal and acquittal of the accused.
3. It was contention of the parties
that offence under Section 3 of Illegal Dispossession Act, 2005 is compoundable
in the light of judgment reported as “Akhter Hussain versus Station House
Officer Sachal Karachi and 2 Others” (2020 PCrl.LJ Note 20-Sindh),
therefore, accused may be acquitted on the basis of compromise arrived at
between the parties. I have examined the said judgment,
the learned Judge in chamber has given following observation:
“Although, the statute viz. The Illegal
Dispossession Act, 2005 is silent, whether it is compoundable or not
compoundable, however, the dispute being related to property, thus, the same is
presumed to be of civil nature, and in civil rights the room for negotiation
ever remains open for the Courts to decide the issue.”
With
utmost respect, I am not agreeing with the above observation due the reasons
that by virtue of Section 9 of said Act, provisions Code of Criminal Procedure,
1898 are applicable; similarly, second schedule of Cr.P.C. shall also be
applicable where under the title “Offences against other laws” it is mentioned
in Column No. 6 as all the offences are “not compoundable”. Now it is trite
that until the legislature makes the offence in special laws (other laws)
compoundable, it would be considered as non-compoundable. Entries in second
schedule of Cr.P.C. could only be surpassed if the special law gives a
different status to the offences punishable under that law, as the legislature
in the case of Illegal Dispossession Act, 2005 has declared the offences under
this Act as non-cognizable; otherwise in second schedule offences against other
laws which are punishable up to seven years and above are shown cognizable.
Question of application of Section 345, Cr.P.C. on offence under Illegal
Dispossession Act, 2005 also does not arise because Section 345, Cr.P.C. talks
and tabulates the offences under, P.P.C. only. It is safely concluded that
offence under Section 3 of Illegal Dispossession Act, 2005 is not compoundable.
4.
A compromise in non-compoundable offence is considered only a mitigating
circumstance for reduction in sentence. Honourable Supreme Court in the case “Ghulam
Farid alias Farida versus The State” (PLD 2006 Supreme Court 53) settled
the query in following terms:
“There is no cavil
to the proposition that the Court at all levels without any legal impediment,
while deciding the criminal cases on merits, in the regular proceedings, can
consider the compromise of an offender with the victim or his legal heirs, as a
mitigating circumstances for the purpose of question of sentence in a
non-compoundable offence but after final disposal of a criminal matter, Court
cannot assume jurisdiction to re-open the case on merits in collateral
proceedings rising out of miscellaneous application.”
In the same judgment, with reference to
case “Muhammad Rawab versus State” (2004 SCMR 1170), it was further held
that:
“The provisions as
contained in Section 345, Cr.P.C., cannot be stretched too far by including the
non-compoundable offence therein under the grab of humanitarian grounds or any
other extraneous consideration ………… It may be noted that tabulation of the
offences s made under Section 345, Cr.P.C., being
unambiguous remove all doubts, uncertainty and must be taken as complete and
comprehensive guide for compounding the offences. The judicial consensus seems
to be that “The Legislature has laid down in this section the test for
determining the classes of offence which concern individuals only as
distinguished form those which have reference to the interest of the State and
Courts of law cannot go beyond that test and substitute for it one of their
own. It is against the policy to compound non-compoundable offence, keeping in
view the state of facts existing on the date of application to compound. No
offences shall be compounded except where the provision of Section 345, Cr.P.C., are satisfied as to all matters mentioned in the
section.”
Reference may also be made to the cases
“Muhammad Nawaz versus The State” (PLD 2014 Supreme Court 383), “Muhammad
Rawab versus The State and another” (2006 SCMR 1703), “Javed Iqbal and
another versus The State” (2012 SCMR 140) and “Muhammad Akhtar alias
Hussain versus The State” (PLD 2007 Supreme Court 447).
However, seeking acquittal on the basis of compromise can only the
allowed if the prosecution is withdrawn with the consent of the Court by public
prosecutor or by the complainant as the case may be. To understand the
scheme of law, it would be appropriate to highlight the relevant arrangements
available in the law.
5.
Institution of criminal proceedings is mainly controlled by the provisions of
Code of Criminal Procedure 1898; development in stages up to logical conclusion
is too regulated through similar law subject to any criteria set through
General Clauses Act or a special procedure introduced by any special law.
General application of code of criminal procedure on a special law for
procedures not ‘specified or prohibited’ is the principle of law embodied in
two philosophies under the touch of “express provision and specific
prohibition” which leads when the Court finds no other way to advance the
cause of justice in any given circumstances. It equally carries weight that if
the provision of law which rails the proceedings during trial can also be
stretched at the level of appellate stage to give effect to the contentions of
the respective parties.
6.
A criminal trial though is controlled by the Court yet the parties are also
authorized to terminate the same at any stage, requesting the Court to stop the
prosecution. We know criminal trial is concluded/ terminated with three main
results; 1st, either the accused earns premature acquittal under Section
249A/265K or acquitted after full dressed trial under Section 245/265H, Cr.P.C.
or convicted under Section 243/245(2) or 265H (2), Cr.P.C.; 2nd, when parties
entered into compromise and the accused is acquitted; because effect of such
compromise is of acquittal as embodied in Section 345(6) of Cr.P.C. 3rd, when
the public prosecutor opts to withdraw from prosecution which is regulated under
Section 494, Cr.P.C. read with Section 10(3)(e)&(f) of Punjab Criminal
Prosecution Service (Constitution, Functions and Powers) Act, 2006 and such
withdrawal during trial amounts to acquittal of accused from the charges.
Principle of Nolle Prosequi or withdrawal from prosecution has well been
explained by Hon’ble Supreme Court in the cases “Mir Hassan versus Tariq
Saeed and 2 others” (PLD 1977 Supreme Court 451) and “Saad Shibli versus
The State and another and State versus Puttan and others” (PLD 1981 Supreme
Court 617).
7.
Similar is the procedure when a complaint is processed under Section 190 read
with Sections 200/202, Cr.P.C., it can be withdrawn under
Section 248 Cr.P.C. during the trial and it also results in acquittal of
accused. No further trial can be conducted later as it amounts to double
jeopardy. Section 248, Cr.P.C. does not fall within the exceptions to Section
403, Cr.P.C. though such section recognizes the following situation where
Section 403, Cr.P.C. shall not apply:
“The dismissal of a
complaint, the stopping of proceedings under Section 249, or the discharge of
the accused is not an acquittal for the purposes of this section.”
Dismissal of complaint is regulated
under Section 203, Cr.P.C which runs as under:
203. Dismissal
of complaints: [The Court], before whom a complaint is made or to
whom it has been transferred, [or sent] may dismiss the complaint, if, after
considering the Statement on oath (if any) of the complainant and the result of
the investigation or inquiry (if any) under Section 202 there is in his
judgment no sufficient ground for proceeding. In such cases he shall briefly
record his reasons for so doing.
Above
provision reflects that it applies at the stage preliminary to the commencement
of trial; therefore, if complaint is withdrawn during that stage, result shall
not be in acquittal of accused; reliance is on “Azmat Bibi versus Asifa
Riaz” (PLD 2002 Supreme Court 687) and “Arshad Ali versus Liaqat Dhudhi”
(2008 MLD 816-Lahore). If the complaint is withdrawn during the trial, the
complaint shall not be dismissed rather accused would stand acquitted; reliance
is on “Muhammad Ayub Awan versus Muhammad Yaqub” (1994 SCMR 1137).
8.
There is no cavil to the proposition that complaint can be withdrawn during the
trial under Section 248, Cr.P.C. but once the accused is convicted and an
appeal against conviction is pending, whether the complaint on the basis of
compromise or on any other reason could be withdrawn is the query that is to be
answered in this case. Before dilating on this question, let read the Section
248, Cr.P.C. which is as follows:
248. Withdrawal
of complaint: If a complainant, at any time before a final order is
passed in any case under this Chapter satisfies the Magistrate that there are
sufficient grounds for permitting him to withdraw his complaint the Magistrate
may permit him to withdraw the same, and shall thereupon acquit the accused.
From
the plain reading of above provisions, it is reflected that there are two
preconditions for permission to withdraw the complaint, which are as follows:
i. Before the final order is passed
ii. Satisfy that
there are sufficient grounds
Final order,
obviously means an order of acquittal or conviction upon conclusion of trial
whereas sufficient grounds may entail out of Court settlement for any
consideration, or the demise of the parties or the loss is made good or any
alternate dispute resolution. Depending upon the circumstance of the case,
Court can either grant or withhold the permission. Withholding of permission
may amount to continuation of prosecution even through any other person.
Reliance is placed on “Nisar Ahmad versus The State” (PLD 1976 Lahore
1354).
9.
In Section 248, Cr.P.C. word “final order” connotes the culmination of
proceedings up to the last remedy available to the parties to over turn the
decision of trial Court because final order of acquittal or conviction can also
be passed on an appeal before the superior Courts; therefore, Section 248,
Cr.P.C. would be available during proceedings before appellate Court as well.
Even otherwise, it is trite that appeal is considered as continuation of trial;
reliance is placed on the cases “Muhammad Hanif and others vs The State and
others” (2001 SCMR 84), “Mujahid Hussain vs The State” (2004 PCr.L.J
874), “Nazeer Ahmed and another versus The State” (1999 MLD
1374-Lahore), “Raza Hussain versus The State” (1989 MLD 3967-Lahore), “State
and 5 others versus Muhammad Akram and 5 others” (1987 PCr.LJ 1728-SC AJK),
“Asghar Hayat and others versus The State” (1985 PCr.LJ 2638) “Mst.
Said Bibi versus The State” (1971 PCr.LJ 39-Lahore) and “Parvaiz Khan
versus The State through Additional Advocate-General K.P.K. Peshawar and
another” (2018 YLR Note 99-Peshawar).
10.
Section 248, Cr.P.C falls in Chapter XX of Cr.P.C. which relates to trial by
Magistrate whereas trial by Court of Session is regulated under Chapter XXII-A,
Cr.P.C., contention that Section 248, Cr.P.C. shall not be available to Court
of Session is a question that has its different outcome in the light of
provisions of Illegal Dispossession Act, 2005. Section 4 of said Act is
necessarily to be read before answering this query:
4. Cognizance of
offence.--(1) Notwithstanding anything contained in
the Code or any law for the time being in force, the contravention of Section 3
shall be triable by the Court of Session on a complaint.
(2) The offence under this Act shall be non-cognizable.
(3) The Court at
any stage of the proceedings may direct the police to arrest the accused.
Above
clarifies that offences under Illegal Dispossession Act shall be tried by Court
of Sessions, but it does not specify the application of Chapter XX or XXII-A
for the purpose of trial as usually supplied through legislation for Courts
which work under special laws. In this law even under Section 5, mode of
inquiry and investigation is entirely different as to one mentioned under
Section 202, Cr.P.C. therefore,
