IN THE HIGH COURT OF SINDH, CIRCUIT COURT, MIRPURKHAS

Criminal Appeal No. S-15 of 2024 (new)

Criminal Appeal No. S-185 of 2017 (old)

Appellant: Aslam @ Ghaloo s/o Punhoon Khoso

Present in person (on bail). His counsel Mr.
Hemandas S. Sanghani advocate is called absent
without intimation.

State: Through Mr. Shahzado Saleem,

Additional Prosecutor General, Sindh

Complainant: Shr. Lachmi

In person alongwith her brother Laloo Mal.

Date of hearing : 27.06.2024

Date of Judgment : 27.06.2024

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JUDGMENT

MUHAMMAD SALEEM JESSAR. J- By means of instant Criminal Appeal,

the appellant has assailed Judgment dated 18-08-2017 passed by learned

First Additional Sessions Judge, Mirpurkhas (trial court), vide Sessions

Case No.181 of 2016, Re: S/V Aslam @ Ghaloo Khoso, being outcome of

FIR No.54 of 2016, registered at P.S Jhudo, for offence under Sections 376,

511, 452(2), 337-H(ii), 34 PPC, whereby appellant was convicted as under:-

For offence punishable U/S 452 PPC to suffer R.I for three
years and to pay fine of Rs.50,000/= and in case of default in
payment of fine to suffer S.I for four months more.

However, benefit in terms of section 382-B Cr.P.C was extended

to the appellant.

2. Concisely, the complainant Shrimati Lachmi lodged FIR at P.S

Jhudo on 18-6-2016 at 1210 hours, alleging therein that accused Aslam

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alias Ghaloo was teasing her with intention to make friendship with him.

On 18-6-2016 she, her sister Shrimati Baby, mother Shrimati Devi and

father Kewal were present in the house. Meanwhile at about 11-30 a.m

accused persons namely Aslam alias Ghaloo Khoso and Niaz Ali Khoso,

duly armed with pistol, forcibly entered into their house. Accused Niaz

Ali Khoso pointed out his pistol and accused Aslam alias Ghaloo

attempted to commit rape with her. She raised hue and cry, on which her

sister Shrimati Baby, Gajoo, Nanak and others arrived there and caught

hold accused Aslam alias Ghaloo while accused Niaz Ali Khoso by

making ariel firing ran-away from the spot, Thereafter, complainant party

brought captured accused Aslam alias Ghaloo at P.S, handed over him to

police and then complainant lodged the FIR in terms stated above.

3. After registration of FIR investigation was conducted. On

completion of investigation, challan was submitted before learned

Magistrate concerned. Since the offence is exclusively triable by the Court

of Sessions, therefore, learned Magistrate sent the R&Ps to Sessions Judge,

Mirpurkhas, wherefrom it was assigned to the trial Court for its disposal in

accordance with law. Learned trial court framed formal Charge against the

accused at Ex.02, to which he pleaded not guilty and claimed trial vide his

plea at Ex.02-A. In order to prove its Charge, the prosecution examined in

all five (05) witnesses at Ex.03 to 08, who produced and recognized certain

documents, then prosecution closed its’ side at Ex.09. Statement of

accused, as required under Section 342 Cr. P.C was recorded at Ex.10

wherein he denied the allegations leveled by prosecution against him;

however, neither he examined himself on Oath nor produced any witness

in his defense. Finally learned trial Court after hearing the arguments of
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learned counsel for the parties, convicted and sentenced to present

appellant, as mentioned supra.

4. At the very outset appellant and complainant/ victim Shr. Lachmi

present in court state that due to indulgence of community people they

have settled down their differences outside the court; hence they do not

intend to prosecute each other anymore. The complainant at the moment is

also victim states that she has no objection if by granting instant appeal

appellant may be acquitted of the charge.

5. Learned A.P.G after going through impugned judgment submits

that prosecution has failed to establish its charge against appellant in terms

of section 376 r/w section 511 PPC, therefore, he has been acquitted by the

trial court from said charge; however, charge against him in terms of

section 452 PPC was proved, therefore, he has been convicted and

sentenced to 03 years. As far as proposal with regard to compromise

between the parties outside the court is concerned, learned A.P.G submits

that offence with which appellant has been convicted is not

compoundable, therefore, he is not entitled for the relief sought for.

Learned A.P.G; however, is not in a position to controvert the fact that

complainant/ victim who is present in court does not want to prosecute

the appellant anymore; in such an eventuality lingering on the proceedings

would fruit nothing but wastage of the precious time of the court.

6. Heard. Record perused.

7. No doubt appellant was tried for the charge u/s 376, 511 r/w

section 452 PPC; however, at the time of trial prosecution did not adduce

sufficient evidence in respect of sections 376, 511 PPC, hence trial court
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while making discussion over points for determination has acquitted the

appellant from the charge(s) of section 376, 511 PPC and has convicted him

for the charge of section 452 PPC only. Though the offence with which the

appellant stands convicted is not compoundable, however, appellant has

remained for some time inside jail besides the offence with which he

stands charged pertains to year 2016, thus has been facing agony of trial as

well as proceedings of instant appeal right from 2016 till today i.e. for a

period of about 08 years, which is sufficient punishment for him. At this

juncture when the complainant/ victim herself does not want to prosecute

the appellant anymore and they being inhabitants of same area want to

live peacefully by maintaining law and order situation as well as

tranquility, the superior courts have time and again held that in such a

situation parties may be allowed to live peacefully, even in a case when the

offence with which accused is charged is non-compoundable. In this

connection I am fortified and guided from the dictum laid down by

learned Bench of this court in case of ASHIQ SOLANGI and another Vs.

THE STATE (PLD 2008 Karachi 420), wherein it is held as under:-

“2. The applicants were convicted under sections 452,

337-H(2), 506/2 and 148, P.P.C. The legal question is
that certain offences are compoundable and certain
offences are not compoundable. I am of the clear view
that if the main offence is compoundable and parties
have compromised against themselves then the small
offences should be treated as compromised though
under the statute those are not compoundable. In the
present revision keeping in view the compromise
which has taken place between the parties outside the
Court, it is not proper to uphold the conviction
specially when the complainant does not want to
pursue his case anymore. In the circumstances I accept
the revision application and order acquittal of both
the applicants from the charge. Their conviction and
sentence is set aside. They are present on bail, their
bail bonds are cancelled and sureties discharged.”
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08. In case of AAMIR and 2 others Vs. The State and another (2011

MLD 1468 [Lahore]), Honourale Lahore High Court, held as under:

“9. Now I advert to the factum whether compromise

can be effected in non-compoundable offence. I am of
the view that the compromise is meant to promote
harmonious living and maintain cordial relations
between the parties. This view was affirmed by
august Supreme Court of Pakistan in the case of
Ghulam Shabbir and 2 others v. The State (2003
SCMR 663).”

09. In case of GHULAM SHABBIR and 2 others Vs. The State, reported

in 2003 SCMR 663, decided by a Full Bench of Honourable Supreme

Court, which was also relied upon in the case of AAMIR and 2 others

(supra), the accused were tried for the charge under sections

302/324/337-A(ii)/148 and 149, P.P.C read with section 9 and sections 6, 7

and 8 of Anti-Terrorism Act, 1997 by the Special Court constituted under

Anti-Terrorism Act, 1997, in pursuance of F.I.R. No. 174, dated 13th

August, 1993 registered at Police Station Jand, District Attock. On

conclusion of the trial the trial Court found the accused persons guilty of

the charge and vide judgment dated 23rd September 2000 convicted and

sentenced them for the abovesaid offences. The accused were also

convicted under Section 9 of ATA, 1997 and sentenced to undergo 4 years'

R.I. each with fine of Rs.10,000 each in default whereof to undergo 2

months' R.I. In Appeal, Honourable Lahore High Court, Rawalpindi

Bench, Rawalpindi, modified the sentences awarded under Sections

302/149, whereas the accused were acquitted for the offences under

Sections 324/149 PPC. However, rest of the conviction / sentence was

maintained, which also included conviction and sentence of R.I. for four

years under Section 9 of the ATA, 1997. Thereafter, a Criminal

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Miscellaneous Application was filed on behalf of the accused persons,

wherein it was stated that rival parties have compounded the offence and

have forgiven to each other in the name of Almighty Allah and in this

behalf a compromise had been effected, therefore, it was prayed that the

same may be accepted and the accused may be acquitted of the charge.

Honourable Supreme Court allowed said application holding as under:

“Accordingly, the permission to compound the offence

in view of subsection (5) of section 345 of the Cr.P.C.
is accorded to the parties in order to maintain cordial
relations and bury their hatchets forever. Resultantly,
Criminal Miscellaneous No. 123 of 2002 is
allowed…… Since leave to compound the offence is
allowed, as such we set aside the conviction /
sentence of the petitioners as well as impugned
judgment dated 25th September, 2001. The petitioners
namely Ghulam Shabbir son of Ghulam Yousaf,
Ghulam Raza son of Ghulam Mohi-e-Din and
Mushtaq Ahmed are acquitted under subsection (6) of
section 345, Cr.P.C. They are directed to be released
forthwith, if not required in any other case.”

10. It may be pointed out that in captioned case Honourable Supreme

Court allowed the compromise application although the accused were also

convicted under Section 9 of the Anti-Terrorism Act, 1997 which is a non-

compoundable offence.

11. In another case of ALI RAZA and another Vs. The State and another,

reported in PLD 2013 Lahore 651, it was held as under:

“If the loss allegedly sustained by the complainant

and his wife at the hands of the accused / petitioners
has been made good, to their entire satisfaction, there
may be no harm in allowing the instant applications
for bail after arrest. Even otherwise, it has always
been observed that the compromise even in non-
compoundable offences is a redeeming factor, which
brings peace, harmony and coherence in the society
and it may have far-reaching positive effects, in the
lives of warring-parties.”

12. In case of TASAWAR HUSSAIN Vs. The STATE and another (2021

YLR Note 124 [Islamabad]), it was held as under:

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“7. Section 345, Cr.P.C. relates to compounding

offences and subsection (1) of section 345 provides
that the offences under the sections of the Pakistan
Penal Code specified in the first and second columns
of the table given therein may be compounded by
the persons mentioned in the third column of that
table.

8. Offence of robbery as mentioned in section 392

of Pakistan Penal Code does not find mention in the
table given in section 345, subsection (1) of the
Criminal Procedure Code and, therefore, is not
compoundable. Similarly, section 411 of Pakistan
Penal Code does not figure in the table mentioned
under section 345, Cr.P.C. and, therefore, is not
compoundable. However, the fact that the
complainant himself has executed the affidavit,
wherein he has undertaken that he has forgiven the
petitioner/accused on the name of Allah Almighty
and shall have no objection if the petitioner /
accused is acquitted or released on bail after arrest,
may be considered as the ground for the grant of
bail in the interest of justice and equity. Where the
complainant party is no longer willing to prosecute
the matter any further then it is not for this Court
or the Courts subordinate to it to compel the parties
to do so, as the saying goes, "you can take the horse
till the water but you cannot make him drink".

9. In the similar case reported in "Muhammad

Akram v. The State 1995 MLD page 1826" the
factum of compromise was taken into consideration
and bail was granted. More or less, the same view
was taken in a case of rape in the case reported in
"Mst. Mussarat Elahi alias Bibi v. The State 1997
PCr.LJ 1193", and the Supreme Court of Pakistan
took judicial notice of a compromise in a matter
which was otherwise not compoundable and
converted the petition for Special Leave to Appeal
into an appeal and, therefore, accepted the appeal
by reducing the sentence to that which had already
been undergone in the case of Ghulam Ali v. The
State reported as 1997 SCMR 1411.

10. Thus, I am fortified in my opinion that

judicial notice of a compromise having taken place
can be taken even in offences which are not
compoundable.

13. In case of MUHAMMAD JAMIL and others Vs. The State and

another, reported in 2013 P Cr. L J 1458 [Lahore], it was held as under:

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“Though, the accusations, mentioned in the F.I.R.,

constitute non-compoundable offences yet,
compromise / reconciliation between the parties has
always been held a redeeming feature, which brings
peace and harmony in the society and only for this
reason, the courts have always respected enthusiasms
and passion of the parties to compound the offence,
being compoundable or not. This is of course, not a
job of the courts to pressurize the parties to continue
with their hostilities or prosecute each other for
years.”

14. In view of above, it would be in the best interest of justice, equity

and fair play that the compromise arrived at between the parties in instant

case in respect of non-compoundable offences is accepted / allowed to

take effect.

15. In the circumstances, proposal so advanced by the appellant and

complainant/ victim herself before this court as well in view of above

precedential law, is hereby accepted to. Consequently, appeal in hand is

hereby allowed. Resultantly impugned judgment dated 18-08-2017 penned

down by learned 1st Additional Sessions Judge, Mirpurkhas, vide

S.C.No.181/ 2016 Re: S/V Aslam alias Ghaloo Khoso being outcome of FIR

bearing Crime No. 54/ 2016 registered u/s 376, 511, 452(2), 337-H(ii), 34

PPC at P.S Jhudo, is hereby set aside to the extent of conviction of

appellant only. Resultantly, appellant is acquitted from the charge.

Appellant is present before court on bail, his bail bond stands cancelled

and surety furnished by him is hereby discharged.

JUDGE

Mirpurkhas.
Dated: 27th June, 2024.
*Saleem*