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Criminal Acquittal Appeal No.532 of 2011, decided on 31st January, 2014.

----S.489-F---Criminal Procedure Code (V of 1898), Ss.249-A, 345 & 417(2-A)---Dishonestly issuing a cheque---Appeal against acquittal---Compounding of offence---Re-opening of case---Criminal case was closed on the basis of compromise between parties and accused was acquitted by Trial Court in exercise of powers under S.249-A, Cr.P.C.---Complainant sought reopening of criminal case on the plea that accused had violated terms and conditions of compromise---Validity---Once compromise between parties, in compoundable offence had been effected, the same could not be withdrawn---Violation of terms and conditions of compromise was not a valid ground for re-opening the disposed of criminal proceedings---If any party had resiled from terms and conditions, aggrieved party was at liberty to seek remedy provided under law through competent court for enforcement and specific performance of terms and conditions of the compromise---Trial Court was justified in acquitting accused and such order was neither perverse nor suffering from any infirmity or illegality and did not require interference of High Court---Appeal was dismissed in circumstances. Sardar M. Yousuf for Appellant. Irfan Ali for Respondent No.1. Zahoor Shah, A.P.G. for the State.

The appellant Noman Hafeez Shaikh has filed this Criminal Acquittal Appeal against the order dated 13-11-2011 passed by learned Xth Civil Judge and Judicial Magistrate, Karachi Central (hereinafter referred to as trial court) in Cr. Case No.2487 of 2011 culminated in F.I.R. No. 66/2011, Police Station Sharifabad under section 489-F, P.P.C., acquitting the respondent No.1 under section 249-A, Cr.P.C. of charge. 2. Concisely, the facts of the prosecution case are that appellant Noman Shaikh lodged F.I.R. referred to hereinabove that respondent Najeeb Ashraf issued a cheque of Rs.two crore towards the business transaction in favour of Sarhad Re-Rolling Mills to be drawn from National Bank of Pakistan Sharifabad Branch, which on its presentation was dishonoured, therefore the complainant authorized by the Proprietor of Mills lodged F.I.R. 3. Per prosecution during pendency of the investigation the parties entered in compromise therefore the Investigating Officer submitted the report under section 173, Cr.P.C. for disposal of F.I.R. under "A" class, which was approved by the competent Court. However later on the appellant along with the Investigating Officer appeared before the learned Judicial Magistrate, moved application for re-opening the case on the ground that the respondent No.1 after disposal of case under "A" Class has resiled from the terms and conditions of the compromise, learned Judicial Magistrate acceded the request and recalled the order of disposal of F.I.R. under "A" class, directing the I.O. to re-open the case and after completing the investigation submit report under section 173, Cr.P.C. During pendency of trial the respondent No.1 filed application under section 249-A, Cr.P.C., which was allowed and the respondent No.1 was acquitted of charge. 4. Learned counsel for the appellant during arguments has admitted the composition of offence between the parties, execution of compromise deed and the disposal of case under "A" Class on account of compromise, the sole plea of the learned counsel is that since the respondent No.1 did not honour the terms and conditions of the compromise therefore the appellant had no other option except to approach the concerned court for reopening the case, that the trial court has acquitted the respondent No. 1 without framing the charge and recording the prosecution evidence despite the fact that the complainant was attending the Court and pursuing his case regularly as such the impugned order in the eye of law is not sustainable. He requests that the order of acquitting the respondent No.1 may be set aside and the case may be remanded to the trial Court with direction to record the prosecution"s evidence and to decide the case strictly on merits. 5. Conversely learned counsel for the respondent No.1 has contended that once the offence is compounded on certain terms and conditions and if at subsequent stage any party resiles from the terms and conditions, the aggrieved party would be at liberty to knock the door of competent court for specific performance of the terms and conditions of compromise, backtrack from the terms and conditions of compromise would be no ground for re-opening the criminal proceedings, according to learned counsel it would accrue a fresh cause of action to the appellant to file civil proceedings for enforcement of terms and conditions of compromise, hence the trial court was justified in acquitting the respondent under section 249-A, Cr.P.C. 6. 1 have considered the arguments and perused the record. There is no controversy between the parties regarding the composition, the comprehend (sic) question before this Court was that whether after the composition of offence, on account of backtrack from the terms and conditions of compromise by one party, the other party would be competent to seek re-opening of criminal proceedings disposed of in terms of compromise. I may mention here that F.I.R. in the instant case was lodged for offence under section 489-F, P.P.C., which is compoundable offence. Admittedly after registration of F.I.R., the parties entered in compromise, executed such compromise deed in terms whereof the investigating officer submitted the report 173, Cr.P.C. for disposal of case under "A" class, the concerned Judicial Magistrate approved such report and released the respondent No.1 under section 497, Cr.P.C. vide order dated 31-3-2011. I am not impressed by the learned counsel for the appellant that since the respondent No.1 did not honour the terms and conditions of the compromise therefore learned Judicial Magistrate has passed a legal order of re-opening the criminal proceedings and taking the cognizance of offence against the accused released by the competent court of law in terms of compromise. In my opinion once a compromise between the parties in compoundable offence has been effected it cannot be withdrawn. The violation of terms and conditions of the compromise would also not be a valid ground for re-opening the disposed of criminal proceedings. However, if any party resiles from the terms and conditions, the aggrieved party would be at liberty to seek remedy provided under the law through competent court for enforcement and specific performance of the terms and conditions of the compromise. 7. In view of the above legal position, the trial Court was justified in acquitting the respondent No.1, the impugned order is neither perverse nor suffering from any infirmity or illegality it does not require interference of this Court. This Criminal Acquittal Appeal is dismissed accordingly. MH/N-5/Sindh Appeal dismissed.

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