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Petitioner: MUHAMMAD HAROON VS Respondent: THE STATEHonorable Justice Amir Hani MuslimAli Nawaz Dheraj,Akthtar Sheed
2005 M L D 1665
2005 M L D 1665
[Karachi]
Before Amir Hani Muslim, J
MUHAMMAD HAROON and 8 others---Appellants
Versus
THE STATE---Respondent
Criminal Jail Appeals Nos.13 and 287 of 2005, decided on 21st July, 2005.
Criminal Procedure Code (V of 1898)-
---S. 345 - Penal Code (XLV of 1860), Ss. 302, 310, 337-A(i)(ii), 337-F(i)(ii), 504, 147 & 148---Appreciation of evidence--Compromise-Counter-cases-Case against accused was assigned to Additional Sessions Judge, whereas case lodged at the behest of accused against complainant party was assigned to Judicial Magistrate---Accused during pendency of cases, compromised the matter with complainants and parties filed compromise application in the Court of Judicial Magistrate---Compromise application was allowed by Judicial Magistrate---When matter came up for hearing before Additional Sessions Judge, complainants who had extended assurance that they would make a compromise application had backed out---Such fact had not been brought to the notice of Additional Sessions Judge who had given impugned judgment whereby accused were convicted---If parties had entered into compromise in one case, consequence would be that compromise would have effect on the counter-case as well---Since two different Courts were trying the matters, it led to conflicting judgments---Both cases should have been assigned to one and same Court for trial---Case, in circumstances was fit case for remand---Allowing appeal, impugned judgment was set aside and case was remanded to Sessions Judge for de novo trial either by himself or by Additional Sessions Judge other than the one who had decided the case---Trial Court would also give finding on compromise reached between parties.
Ali Nawaz Dheraj for Appellants.
Akthtar Sheed for the AG for the State.
ORDER
This Criminal Jail Appeal has been filed by the appellant impugning the judgment passed in Sessions Case No.174 of 2000 whereby the learned Additional Sessions Judge, Naushehro Feroze vide judgment dated 15-3-2005 has convicted the appellants and sentenced them to undergo R.I. for 5 years and to pay Arsh of Rs.60,000. The trial Court, however, had given the benefit under section 382-B, Cr.P.C. to all the appellants.
2. It has been contended by the learned counsel for the appellants that the impugned judgment is bad in law. He submitted that the appellants were convicted in Crime No.92 of 2000 registered with Police Station Nausherhro Feroze under sections 302, 337-A(i)(ii), 337-F(i)(ii), 504, 147 and 148, P.P.C. whereas the appellants lodged counter-F.I.R. No.93 of 2000 against 12 accused under sections 337-A(ii), 337-F(ii), 504, 147 and 148, P.P.C.
3. Apparently, challans in both the cases were submitted. The case against the appellants was assigned to the learned Additional Sessions Judge, Naushehro Feroze whereas the case which waS lodged at the behest of the appellants was assigned to the Civil Judge and Judicial Magistrate, Naushehro Feroze. During the pendency of the cases the appellants compromised the matter with the accused in F.I.R. No.93 of 2000, as a result of which the parties filed compromise application in the Court of Civil Judge and Judicial Magistrate, Naushahro Feroze on 27-7-2005. The compromise application was supported by the Affidavits of the injured persons. The Judicial Magistrate apparently on 31-7-2004 allowed the compromise application.
4. Learned counsel for the appellants submitted that when, the matter came up for hearing before the Additional Sessions Judge, Naushehro Feroze, the complainants who have extended assurance that they would make a compromise application backed out. This fact apparently has not been brought to the notice of the learned Additional Sessions Judge who has give the judgment impugned in these proceedings.
5. It appears that the compromise application between the parties made before the Civil Judge and Judicial Magistrate having bearing as far as the counter-case, F.I.R. No.92 of 2000, is concerned, which fact has gone unnoticed by the learned Additional Sessions Judge, while convicting the appellants. The argument of the learned counsel for the appellant is not without force. If the parties have entered into compromise in one case the consequence would be that compromise would have effect on the counter-case as well. It appears that on account of the fact that since two different Courts were trying the matters it led to conflicting judgments.
6. In any case, the learned Sessions Judge, Naushehro Feroze, should have assigned both the cases to one and the same Court for trial. Under these circumstances, I am of the view that this is a fit case for remand. Consequently, this appeal is allowed, the impugned judgment is set aside and the case is remanded to the learned Sessions Judge, Naushahro Feroze for de novo trial either by himself or by some Additional Sessions Judge other than the one who has decided the case. The trial Court shall also give finding on the compromise reached between the parties as recorded by the Civil Judge and Judicial Magistrate, Naushahro Feroze in counter-F.I.R. No.93 of 2000 lodged at Naushahro Feroze Police Station. The appellants were on bail before the trial Court, they shall remain on bail on the same time till the disposal of the case by the trial Court.
H.B.T./M-256/K Appeal allowed.