2024 Y L R 157
[Balochistan]
Before Sardar Ahmed Haleemi, J
BIBI ZAINAB and others ---Petitioners
Versus
Haji MUHAMMAD HASSAN and others ---Respondents
Criminal Misc. Quashment No. 60 of 2020, decided on 9th January, 2023.
Criminal Procedure Code (V of 1898) ---
----Ss. 345, 417 & 561 -A---Compromise of case ---Jurisdiction of High Court ---Petitioners
assailed final disposal of a matter on the basis of compromise ---Petitioners claimed to be
Wali and legal heirs of deceased but for reasons known to deceased party and notables, they
were neither made party to the compromise nor any thing was brought on record regarding all surviving legal heirs of the deceased---Contention of petitioners was that their mother was illiterate lady who was not properly represented in the compromise as well as before Trial Court and petitioners were minors, who were unaware about the fact of the murder of their late father and acceptance of the compromise, which was only arrived at between the widow of deceased and respondent ---Validity ---As per photocopies of CNICs of petitioners issued
by NADRA authorities petitioners were minors at the time of filing of petition ---There was
nothing on record to show the circumstances, which compelled widow of deceased and respondents not to disclose their names at the time of compromise ---Such fact also escaped
from the notice of Trial Court ---It was not possible for High Court to re -open the case on
merits in exercise of power conferred under S. 561- A, Cr.P.C., that too, after lapse of more
than ten (10) years ---Petitioners were at liberty to avail remedy under S. 417, Cr.P.C. by
following the law with legal exceptions ---Constitutional petition was dismissed, in
circumstances.
Ghulam Farid alias Farida v. the State PLD 2006 SC 53 rel.
Nemo for Petitioners.
Maqbool Mengal for Respondents Nos.1 to 17.
Abdul Nafay, State Counsel.
Date of hearing: 19th December, 2022.
JUDGMENT
SARDAR AHMED HALEEMI, J. ---The instant Criminal Quashment Petition has
been filed by the petitioners with the following prayer: -
"Keeping in view the above mentioned facts and circumstances, it is respectfully
prayed that this Honorable Court may kindly be pleased to quash the impugned order dated 30.01.2020 passed by learned Sessions Judge, Nushki and also pass order to recall the acquittal order dated 30.06.2009 passed by Sessions Judge, Nushki and the case vide FIR No.145/2008 may kindly be ordered to be reopened, in the interest ofjustice, equity and fairplay. "
2. The brief facts of the instant criminal quashment petition are that on the report of
complainant Taj Muhammad, an FIR No. 145 of 2008 under sections 324, 147, 148 and 149, P.P.C. was registered at Police Station, Nushki against the respondents Nos. 1 to 17 to the effect that on 20th December, 2008 at about 6:00 p.m. an incident took place, wherein Khudae -Rahim (father of petitioners), Muhammad Ibrahim, Aminullah, Eid Muhammad, Yar
Muhammad and Taj Muhammad were injured, however, out of them, Khuda -e-Rahim (father
of the petitioners) succumbed to his injuries as such offence under section 302, P.P.C. was incorporated in the FIR.
3. After registration of the FIR, challan was submitted before the learned Sessions
Judge, Nushki (hereinafter the "trial Court") and trial commenced. However, during the course of proceedings, on intervening of notables of the area, the matter was settled between the parties and compromise was filed before trial Court, as such the trial Court vide order dated 30th June, 2009 accepted the compromise effected between the parties to the following effect:
"Widow of deceased Mst. Lal Bibi, injured person Muhammad Ibrahim, Aminullah,
Eid Muhammad, Yar Muhammad, Taj Muhammad are present and confirm the execution of compromise. They stated that they have pardoned the present accused persons and absconding accused persons Master Bashir Ahmed and Ali Muhammad in the name of Allah waiving the right of Qisas and Diyat. They further mentioned that they are no more interested in the trial of case and requested for acceptance of compromise.
The offences under sections 302, 324, 147, 148, 149, P.P.C. are compoundable with the consent of legal heirs of the deceased, injured persons and permission of court. Presence of legal heirs of the deceased, injured persons, notables of the area confirm that the compromise is willful and without any force. Parties have compromised in cross cases of the incident. Its acceptance will strengthen their future relations. As such, the same is allowed to be on file. Consequently, the accused persons are acquitted. Bail bonds are discharged, process issued against absconding accused persons is withdrawn."
4. Now after more than ten (10) years, the petitioners, claim to be legal heirs of deceased
Khuda -e-Dad, filed an application for re -opening of the case FIR No. 145 of 2008 of P.S.
Nushki with the following relief:
"It is, therefore, respectfully submitted that in view of above submissions, it is
requested that the case bearing FIR No. 145/2008 of Police Station, Nushki, Sessions
Case No. 04/2009 may kindly be ordered to be reopened and accused/ respondents may kindly be ordered to appear before this Honorable Court and face the trial, in the interest of justice."
5. The application was contested by the respondents on the grounds that after
completion of all formal and legal requirements the compromise deed was furnished before this court, because notables of the area patched -up the matter between the parties, whereas at
that time no one raised objection on compromise.
6. The trial Court vide order dated 30th January, 2020 (hereinafter the "impugned
order") after hearing the learned counsel for the parties dismissed the application to the following effect:
"After hearing parties and perusal of record, it is worthwhile to mention here that at
the time of filing of compromise deed the legal heir i.e. widow of deceased Khuda -e-
Dad Mst. Lal Bibi appeared who had confirmed the contents of compromise arrived in between her and accused party, who had also filed her affidavit in this regard, but in
her affidavit she neither disclosed the names of her children nor compromise contains
the names of other legal heirs of the deceased, it means that the legal heirs of the deceased concealed the real facts from the court at the time of filing compromise, on the other hand, the above matter had already been decided on the basis of compromise on 30.6.2009 and applicant become a silent spectator and did not bother themselves to file appeal against acquittal in the garb of section 417 Cr.P.C and the application filed
by the applicants was not competent as appeal under section 417 Cr.P.C would lay to
the High Court against the judgment of acquittal. Accused having been acquitted by my learned predecessor on 30.6.2009 and application filed by applicants for re -
opening of the case FIR No.145/2008 was not competent before this court, therefore,
the application is hereby dismissed."
7. Since no one appeared on behalf of the petitioners despite several opportunities i.e. on
29.07.2022, 19.08.2022, 09.09.2022, 30.09.2022, 09.10.2022, 14.10.2022, 27.10.2022, 07.11.2022 and 06.12.2022, therefore, this Court was left with no other option but to hear the learned counsel for the respondents Nos.1 to 17 and learned State counsel.
8. No doubt an untoward incident had taken place in the year 2008 between the
petitioners and respondents Nos.1 to 17, wherein the father of the petitioners namely Khuda -
e-Dad lost his life. However, on intervening of notables of the area, the matter was patched
up between the parties and the trial Court vide order dated 30th June, 2009 accepted the
compromise on the grounds mentioned hereinabove.
9. Now the moot question whether after final disposal of a matter on the basis of
compromise, an application for re -opening of the FIR filed by the then minor legal heirs
(now adult) is maintainable under the law after the lapse of ten (10) years on the ground that
besides Mst. Lal Bibi (mother of petitioners), the petitioners were/are also Wali and legal
heirs of deceased Khuda- e-Dad, but for the reasons known to the deceased party and
notables, they were neither made party to the compromise nor any thing was brought on
record regarding all surviving legal heirs of the deceased Khuda -e-Dad, as according to
them, their mother being illiterate lady was not properly represented in the compromise as
well as before the trial Court and furthermore being minors, the petitioners were entirely
unaware about the fact of the murder of their late father and acceptance of the compromise, which was only arrived at between the widow of deceased Khuda- e-Dad and respondents
Nos.1 to 17. In this regard, I have gone through the photocopies of CNICs of the petitioners attached along with the petition, which was issued by the NADRA authorities on 4th
February, 2021, which on comparison reveals that the petitioners were minors at the time of
the compromise. However, there is nothing on record to show that what was the
circumstances, which compelled the widow of deceased and respondents Nos.1 to 17 by not disclosing their names at the time of compromise; such fact was also escaped from the notice of the trial Court. Be that as it may, it is not possible for this Court to re -open the case on
merits in exercise of power conferred under section 561- A, Cr.P.C. that too, after lapse of more
than ten (10) years. Reliance in this respect is to be placed on the case of Ghulam Farid alias Farida v. The State PLD 2006 SC 53, wherein the Hon'ble Supreme Court observed as under:
"................... in these circumstances, it was not possible for the High Court to re -open
the case on merits in exercise of its powers under section 561- A, Cr.P.C., and similarly
this Court is not supposed to undertake such an exercise under Article 187 of the Constitution of Islamic Republic of Pakistan and consider the question relating to the quantum of sentence on the basis of compromise between the parties in such a heinous offence which is considered a crime against the Society."
For the above reasons, the Criminal Quashment Petition is dismissed, however, the
petitioners are held at liberty to avail the remedy under Section 417, Cr.P.C by following the law with legal exception.
MH/63/Bal. Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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