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Criminal Appeal No. 70 of 1963, decided on 15th June 1965.

, Ss. 325 & 345-Com promise-Consent of complainant-Case initiated on Police Challan under S. 325 Compromise deed not bearing signature of complainant-Magistrates order acquitting accused, based on such compromise-Held, in violation of mandatory provisions of S. 345 Case remanded for, trial it, accordance with law.

S. Ghazanfar Ali Shah, Assistant A.-G. for the State.

S. M. Abbassi for Respondent.

Date of hearing: 15th June 1965.

.-Muhammad Aslam complainant son of Ghulam Jilani, resident of Hafizbandi, Police Station Mansehra, District Hazara went to the Police Station on 26-7-62 and made a report which was recorded at 4-10 p. m. in the daily diary. He stated that they were in all five brothers. Muhammad Afzal, Muhammad Ashraf and Muhammad Nawaz were their consanguine brothers. Their property was joint. On 25-1-62, at about digervela', Muhammad Ashraf respondent and Muhammad Afzal were ploughing a joint field known as dhereawali bari', and the complainant asked them not plough it. Muhammad Afzal abused him and then at his instance, Muhammad Ashraf ,respondent gave him three stick blows on his right hand. Abdul Hanan, Muhammad Yunus and Muhammad Faruq, who were ploughing their nearby fields, intervened and rescued the complainant. The latter was medically examined, and on receiving X-ray report showing the fracture of the proximal phalynx of right middle finger, a case under section 325, P. P. C. was registered and Muhammad Ashraf was challaned.

2. On 19-9-1962, an application alleged to have been executed by Muhammad Aslam complainant, was produced before the Assistant Commissioner, Mansehra, seeking permission to compromise the case. Along with that application, a compromise deed of the same date was also placed before the Magistrate to, the effect that through the intervention of the elders, the parties who were brothers inter se, had compromised the case. In view of the application for permission and. the compromise deed, the trial Magistrate recorded the following:

"Accused present. Both parties have submitted compromise deeds. Accepted. The accused is acquitted under section 345,Cr.P.C."

3. The State has come in appeal.

4. The application alleged to have been given by the complain ant for permission to compromise the case and a compromise deed both do not bear the signature or the thumb-impression of the complainant, although the compromise is signed by Nawab. Khan, Ali Zaman marginal witnesses and Muhammad Ashraf respondent, which clearly shows that either the complainant was not present or he did not agree to the compromise. The order of the learned trial Magistrate shows that both the parties had submitted the compromise deed, but this observation of the Magistrate does not conclusively establish the consent of the complainant to the compromise: Section 345 (1), Cr. P. C. is to the following effect:-

"The offences punishable under the sections of the Pakistan Penal Code (specified) in the first two columns of the table next following may be compounded by the persons mentioned in the third column of that table."

In view of column 2 of section 345, Cr. P. C., an offence under section 325, P. P. C. can be compounded by the person to whom hurt is caused.

5. In the instant case, it was the complainant Muhammad Asian, who; according to the prosecution, was injured, and so he alone could compound the offence. The absence of his signature or thumb-impression on the application and the compromise deed clearly, shows that he had never agreed to the compromise and an offence under section 325, P. P. C. cannot be compounded without the consent of a complainant. The order of the trial Magistrate based on the so-called compromise is in violation of the mandatory provisions of section 345, Cr. P. C. We, therefore, accept this appeal set aside the order of the trial Magistrate and remand the case to the trial Court to proceed in accordance with law.

S. Q. Appeal accepted.

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