1. The issue in this case is whether or not compounding of a criminal offence at the stage of bail can still be given effect to at the stage of trial when at the stage of trial the compounding has been resiled from by one of the parties. We have found that the precedent cases on the subject available thus far have not stated the legal position in this respect quite clearly and, therefore, we have decided to make an effort to remove all ambiguities confounding the issue and to state the correct legal position as lucidly as we can.
2. The necessary facts giving rise to the present appeal are that Tariq Mehmood appellant is an accused person in case FIR No. 105 registered at Police Station Narra, District Abbottabad on 25.08.2005 for an offence under section 302, PPC in respect of an alleged murder of one Safeer Ahmed. The said FIR had been lodged by Naseer Ahmed complainant who is a brother of Safeer Ahmed deceased. Apprehending his arrest in connection with this case the appellant applied for pre-arrest bail before the learned Sessions Judge, Abbottabad on 03.09.2005 and the appellant’s application was marked to the learned Additional Sessions Judge-II, Abbottabad who admitted the appellant to ad-interim pre-arrest bail. During the pendency of that application a compromise deed was executed on 12.09.2005 and the same was signed by Naseer Ahmed complainant and a respectable person of the area wherein it had been stated that the heirs of Safeer Ahmed deceased had no objection to confirmation of the appellant’s ad-interim pre-arrest bail or to his acquittal in the main case. On the basis of the said compromise deed an application was filed by Naseer Ahmed complainant before the learned Additional Sessions Judge-II, Abbottabad on 28.10.2015 requesting for recording of statements of the heirs of Safeer Ahmed deceased through a Commission for confirming the factum of compromise between the parties and on the same date the said application was allowed by the learned Additional Sessions Judge-II, Abbottabad and a local Advocate was appointed as the Commission. On 29.10.2005 the Commission recorded a joint statement of the heirs of Safeer Ahmed deceased and in that statement the heirs of the deceased maintained that they had no objection to confirmation of the appellant’s ad-interim pre-arrest bail or to his acquittal. On 31.10.2005 the Commission submitted a report before the learned Additional Sessions Judge-II, Abbottabad and on 12.11.2005 the Commissioner got his statement recorded before the said court confirming that the heirs of the deceased had no objection to confirmation of the appellant’s ad-interim pre-arrest bail but the Commissioner said nothing in that statement regarding the heirs of Safeer Ahmed deceased having no objection to the appellant’s acquittal in the main case.
On the same day, i.e. on 12.11.2005 the appellant’s ad-interim pre-arrest bail was confirmed by the learned Additional Sessions Judge-II, Abbottabad. Upon completion of the investigation of this case a Challan (report under section 173, Cr.P.C.) was submitted before the Court of Session, Abbottabad on 20.11.2005 and the learned Sessions Judge, Abbottabad kept the case to his own court for trial. On 28.02.2006 an application was submitted by the appellant under section 345(6), Cr.P.C. seeking his acquittal in this case on the basis of the compromise already entered into by the parties at the stage of bail but on 30.08.2006 the learned Sessions Judge, Abbottabad dismissed the said application of the appellant because by that time the heirs of the deceased had resiled from the compromise. The appellant filed Criminal Revision No. 27 of 2006 before the Peshawar High Court, Abbottabad Bench against the said order passed by the learned Sessions Judge, Abbottabad but the appellant’s revision petition was dismissed by a learned Judge-in-Chamber of the Peshawar High Court, Abbottabad Bench on 09.03.2007. Thereafter the appellant filed Criminal Petition No. 123 of 2007 before this Court wherein leave to appeal was granted on 03.07.2013. Hence, the present appeal before this Court.
3. In support of this appeal the learned counsel for the appellant has submitted that it had never been disputed by any party that at the stage of confirmation of the appellant’s ad-interim pre-arrest bail by the learned Additional Sessions Judge-II, Abbottabad the heirs of Safeer Ahmed deceased had entered into a compromise with the appellant and that they had stated before the Commissioner that they had no objection to confirmation of the adinterim pre-arrest bail of the appellant besides having no objection to his acquittal. According to the learned counsel for the appellant once a genuine compromise had been entered into by the heirs of the deceased with the appellant and such compromise had also partly been acted upon then the heirs of the deceased could not thereafter be permitted to resile from the same and such compromise enured to the benefit of the appellant even during the trial before the trial court for the purpose of seeking acquittal. He has maintained that if the application of the appellant for prearrest bail had been decided by the learned Additional Sessions Judge-II, Abbottabad then the learned Sessions Judge, Abbottabad should not have kept the case of the appellant to his own court for trial and the trial of the appellant should also have been marked by the learned Sessions Judge, Abbottabad to the learned Additional Sessions Judge-II, Abbottabad so that the earlier compromise arrived at between the parties could have been given effect to by the learned Additional Sessions Judge-II, Abbottabad even during the trial. The learned counsel for the appellant has pointed out that in the case of Syed Iftikhar Hussain Shah v. Syed Sabir Hussain Shah and others (1998 SCMR 466) a 2-member Bench of this Court had declared that a compromise in a criminal case entered into at the stage of bail is to enure to the benefit of the accused person even at the stage of trial but later on in the case of Muhammad Akram v. Abdul Waheed and 3 others (2005 SCMR 1342) another 2-member Bench of this Court had taken a different view of the matter and had declared that a compromise entered into between the parties to a criminal case at the stage of bail is to have no value at the stage of trial and it is only that compromise which has been entered into or is validly subsisting during the pendency of the trial which can be accepted by a trial court for the purposes of recording acquittal of an accused person. The learned counsel for the appellant has maintained that in the later case of Muhammad Akram the earlier case of Syed Iftikhar Hussain Shah had not even been referred to by this Court and, thus, the judgment passed in the case of Muhammad Akram can only be treated as per incuriam. As against that the learned Additional Prosecutor-General, Khyber Pakhtunkhwa appearing for the State has maintained that the case of Muhammad Akram decided subsequently by this Court had proceeded on the correct legal lines and the same had been followed by the Peshawar High Court, Abbottabad Bench in the case in hand and, thus, there is hardly any occasion for this Court to set aside the impugned judgment passed by the High Court.
4. After hearing the learned counsel for the parties, going through the record of the case and attending to the precedent cases available on the subject we have observed that the matter of resiling from a compromise in a criminal case has been a subject of some controversy in different cases decided by different courts in the Indo-Pak sub-continent and we have also noticed that the actual reasons generating such controversy had never been clearly discussed or spelt out in such cases. In the cases of Kumarasami Chetty v. Kuppusami Chetty and others (AIR 1919 Madras 879(2)), Ram Richpal v. Mata Din and another (AIR 1925 Lahore 159), Jhangtoo Barai and another v. Emperor (AIR 1930 Allahabad 409), Dharichhan Singh and others v. Emperor (AIR 1939 Patna 141), Mt. Rambai w/o Bahadursingh v. Mt. Chandra Kumari Devi (AIR 1940 Nagpur 181), Godfrey Meeus v. Simon Dular (AIR (37) 1950 Nagpur 91), Prithvi Bhagat and another v. Birju Sada (AIR 1962 Patna 316).
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