HIGH COURT OF SINDH AT KARACHI

Crl. Misc. Application No.70 of 2012

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Date Order with signature of Judge

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Date of hearing 24.04.2012

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Mr. Khawaja Muhammad Azeem Advocate for the Applicant.

Ms. Rahat Ahsan learned DPG.

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MR. SYED HASAN AZHAR RIZVI J: Applicant has filed the present Criminal Misc. Application against the order dated 19.03.2012 passed by the IIIrd Additional Sessions Judge, Karachi-South in Criminal Revision No.12/2012 and order dated 08.03.2012 passed by IVth Judicial Magistrate, Karachi-South in Criminal Case No.4493/2011 whereby Application filed by the parties under section 345(2) and 345(6) Cr.P.C. for compromise was dismissed.

Mr. Khawaja Muhammad Azeem learned Counsel for the Applicant contended that the impugned orders passed by both the Courts below are based on misreading, mis- appreciation of law, factual and legal propositions involved in the matter. According to the learned Counsel for the Applicant the impugned orders are nullity in the eyes of law as the Courts below have failed to appreciate that in view of the settled proposition of law when the option of compromise is available before the Anti Terrorism Courts, both Courts below by dismissing the compromise application committed patent illegality and therefore, the impugned orders are liable to be set-aside. Learned Counsel while placing reliance upon PLJ 1996 Quetta 201 and 1997 P.Cr.L.J. 247 further contended that this Court is competent to allow the compromise Application.

On the other hand Ms. Rahat Ahsan learned DPG opposed the grant of present application and submits that the same is not maintainable and liable to be dismissed.

I have heard Mr. Khawaja Muhammad Azeem Advocate for the Applicant, Ms. Rahat Ahsan learned DPG and perused the record carefully with their assistance.

FIR No.265/2011 was registered by one Ghulam Sarwar at P.S. Saddar under section 363/34 PPC for kidnapping of his son Ghulam Rasool aged about 2-½ years and the Applicant was arrested for kidnapping of the said child. Evidence of the complainant and mother of the victim has already been recorded, who fully supported the contents of the FIR. FIR is registered under section 363/34 PPC in the present case, which is not compoundable. Section 363 of the PPC is not specified and covered under section 345 of the Criminal Procedure Code.

In the case of Muhammad Rawab versus State reported in PLJ 2005 SC 303, the full bench of Honourable Supreme Court of Pakistan has observed that :-

“The provisions as non-compoundable offence therein under the garb of humanitarian grounds or any other extraneous consideration. The offences committed by the society as a whole and cannot be permitted to compound by any individual on any score whatsoever. It may be noted that tabulation of the offences as made under section 345 Cr.P.C. being unambiguous remove all doubts 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 offences which concern individuals only as distinguished from those which have reference to the interests of the State and Courts of law cannot go beyond that test and substitute for it one of their own. It is against the public policy to compound a 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 provisions of Section 345 Cr.P.C are satisfied as to all matter mentioned in the section”.

In view of dictum laid down in the case of Muhammad Rawab Supra; I dismiss the instant Application by my short order dated 24.4.2012 with direction to the Trial Court to conclude the matter within one month.

Karachi

Dated : ____________ JUDGE