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Criminal Petition for Leave to Appeal No. 8/Mzd. and Criminal Miscellaneous No. 18/Mzd. of 1980, decided on 11th February, 1981.

(On appeal from the order of the High Court dated 15th November, 1980 in Criminal Revision No. 20 of 1978).

‑‑ S. 42--‑Leave to appeal‑Granted to consider questions (i) whether Revision Petition against acquittal orders based on com promise passed by District Criminal Court, competent before High Court, (ii) whether High Court transgressed its powers in recording evidence in Revision Petition to know whether compro mise consideration paid or not; (iii) whether Revision Petition within time; (iv) whether remedy of widow to have unpaid compromise consideration i.e., "Diyyat", of Civil nature and if so, its effect on decision of High Court ; (v) whether fraud, if proved, can validly undo a compromise under S. 27(5) of Islamic Penal Laws Enforcement Act, 1974. ‑[Revision (criminal).

‑‑ Ss. 497 & 498‑Bail, grant of‑Points on which leave to appeal granted important to be determined and in event same finding favour with Court, petitioner entitled to acquittal‑Petitioner, allowed bail, in circumstance.

Muhammad Latif v. State P L D 1978 S C (A J & K) 83 ref.

Sardar Muhammad Sayab Khalid, Advocate for Petitioner.

Raja Muhammad Akram Khan, A.‑G. for the State.

The petitioner was to face trial under section 5 of, the Islamic Penal Laws Enforcement Act, 1974, for causing death to his brother before the District Criminal Court Poonch.

2. During the pendency of the case Mst. Noor Jehan (widow of the deceased) and three infant sons of the deceased, through her, moved the Court on 15th February, 1977 for recording a compromise in the case and the 'Diyyat' money, as is entered in the compromise deed, to the tune of Rs. 30,000, which was said to have already been paid to the‑widow. Another agreement was executed which enters that the land under the agreement, measuring 10 kanals, and the house situated thereat, in lieu of Rs. 10,000 a portion of 'Diyyat' money, will re main with the lady in the event the amount remains unpaid within two years. The compromise was recorded, believed to be true, and acted upon by the District Criminal Court on 15th February, 1977. Acquittal for the accused was recorded on the same day.

3. Practically after fifteen months, on 8th May, 1978, Mst. Noor Jehan (widow of the deceased) moved a revision petition before the High Court for vacating the acquittal order based on the compromise, inter alia, on the grounds :‑

(i) that she had been fraudulently made to admit in the compromise deed that the amount of Rs. 30,000 was received by her but in fact this amount was only promised to be paid to her after the compromise ; and (ii) that the land and the house, even subject to the agreement, were not given to her.

3‑A. A Division Bench of the High Court, after recording some evidence, found that the compromise was the outcome of fraud inasmuch as no amount was paid to the lady and the land and the house, promised to be departed, were also not given to her. Therefore, accepting the revision petition the High Court struck down the compromise order passed by the District Criminal Court on 15th February, 1977 and discharging the acquit tal order passed on 15th February, 1977 sent the accused to jail and directed the District Criminal Court to proceed with the trial of the case.

4. The petitioner has moved this petition for leave to appeal to assail the said order of the High Court. In the instant case the com promise, which is permissible under section 27 (5) of the Islamic Penal Laws Enforcement Act, 1974, made on behalf of the wife of the deceased and his infant' sons, was acted upon by the District Criminal Court; resulting in the acquittal of the petitioner. As stated earlier the revision petition moved before the High Court succeeded on the ground that the com promise was manipulated and, in fact no consideration for the compromise as stated in the compromise deed, was paid to the widow of the deceas ed and that the possession of the land and house, which was also a part of consideration of the compromise, was not handed over to the widow of the deceased.

5. After hearing the learned counsel for the parties my view is that the following questions require an authoritative judgment: ‑

(1) whether a revision petition,, under law, against the acquittal order based on compromise passed by the District Criminal Court on 15th February, 1977 was competent before the High Court

(ii) whether the High Court has not transgressed its powers in recording evidence in a revision petition to know as to whether the compromise consideration was paid or not

(iii) whether the revision petition was within time

(iv) whether the remedy of the widow, to have unpaid compromise consideration i.e. 'Diyyat' is of civil nature and if so what is its effect on the decision of the High Court and

(v) whether the fraud, if proved, can validly undo a compromise under section 27(5) of the Islamic Penal Law Enforcement Act, 1974

6. Leave to appeal is granted to consider the aforementioned points.

7. A bail application is also moved for the release of the accused on bail. It is important to remember that bail is not to be withheld as punishment. There is no legal or moral compulsion to keep people in jail merely on the allegation that they have committed offences punish able with death or transportation for life unless circumstances so warrant. In the instant case the points, on which leave is granted, are important to be determined and in the event they find favour with the Court the petitioner shall be acquitted.

8. Raja Mohammad Akram Khan, Advocate‑General, objected to the grant of leave and argued that if the judgment of the High Court remains unshaken the release of the accused shall cause irreparable loss I am afraid I cannot agree with him. Ultimate conviction to an acquitted person can repair the wrong caused by mistaken relief of interim bail granted to him but no satisfactory reparation can be offered to an inno cent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run. 1 find the same view in a case entitled Muhammad Latif v. State (1).

9. For the view I have taken in the matter it is ordered that the accused shall be released on bail subject to his furnishing bail bond to the tune of Rs. 25,000 consisting of three sureties who will be indivi dually and collectively responsible to pay the bail amount if the accused misuses the trust reposed in him. He will also execute the personal bond in the same amount. The bonds shall be executed to the satisfaction of any Magistrate 1st Class Rawalakot. The file, after completion shall be placed before the Court.

Order according.

P L D 1978 S C (AJ&K) 83

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