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ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

Crl. Suo-Moto Rev. No. 155 of 2023
Date Order with signature of the Judge

For hearing of Case

For hearing of main case

15.08.2023
M/s Muhammad Hanif Samma and Ibbad-ul-
Hasnanin, advocates / Amicus Curiae
Respondent in person.
Mr. Mushtaque Ahmed Abbasi AIG Legal-I, CPO on behalf
of IGP Sindh.
M/s Muhammad Saleem Buririo, Addl.PG, Pervaiz Ahmed
Mastoi, AAG and Shafique Ahmed, AAG alongwith
Inspector/SHO Badal Qazi PS Mirwah Khairpur, SIP/I.O
Ashique Dasti, PS Mirwah Khairpur.
***********************

JUDGMENT

Salahuddin Panhwar, J:- Brief facts of the instant Revision application are that
while hearing Criminal Misc Application 284/2018, it has been brought by
Amicus Curaie to the notice of the Court that accused Sarang Shar allegedly
involved in the children rapes has been acquitted by the trial Court by extending
him benefit of doubt inter-alia on the ground that alleged video was not sent for its
forensic examination. However, learned APG submitted that application for
forensic examination of the alleged video was not allowed by the trial Court.
Learned Amicus curiae placed on record statement along with the judgment
passed by the trial Court and sought indulgence of this Court for calling record
and proceedings while exercising powers under Section 435 Cr.P.C. However,
after going through the judgment of the trial Court, this Court while exercising
Revisional powers provided under Section 435 Cr. P.C, directed to call R&Ps of
Case No. 10 of 2023 Sate vs. Sarang Shar (Crime No.105 of 2020 under Section
377, 501, 503 and 506 PPC r/w section 21 and 22 of Prevention of Electronic Act,
2016) registered at P.S Mirwah Khairpur. Perusal of record reflects that a
compromise application was filed along with affidavit by the complainant party
which is available at page 106, wherein it is submitted that that they have
entered into compromise with accused Sarang Shar on Holy Quran and have
forgiven him with regard to the offence of rape; hence they have no objection,
if the accused is acquitted of the charges by the trial Court. Such application was
taken on record by the learned Presiding Officer on 18.03.2023. However;
judgment of the trial Court is not reflecting with regard to compromise application
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as well as reasons for non-mentioning the same in case diary as well as the impugned judgment. T

“It is correct that I have filed application before this Court today that I
have compromised with accused……”

The trial Court has neither considered the ground that the offence was
non-compoundable and the said application was not maintainable. The trial Court
should have dismissed the said application but the trial Court had not decided the
said application. Even the same was not discussed in the impugned Judgment.

2. It was observed by the Apex Court time and again that the offences which
are compoundable in Islam, have also been made compoundable under the
statutory law and in compoundable offences, it is permissible for the Courts to
give effect to the compromise between the parties at any stage of the proceedings
before or after the final conclusion of the matter whereas a compromise in non-
compoundable offences, cannot be given legal cover at any stage. This is settled
law that Courts can interpret the provisions of law but cannot change or substitute
such provisions and also cannot go beyond the wisdom of law. Reference may be
made to the Case of Ghulam Farid alias Farida v. The State (PLD 2006
Supreme Court 53). Similarly in another Case Muhammad Rawab v. The State
(2004 SCMR 1170), it was held by the Apex Court as under:-

“The pivotal question which needs determination would be as to whether

parties can be allowed to compound the offences which are not
compoundable by virtue of the provisions as contemplated in section
345, Cr.P.C. specially in view of the specific bar as mentioned in
subsection (7) of section 345, Cr.P.C. There is no denying the fact that
section 365-A, P.P.C. read with section 7(e) of the Anti-Terrorism Act,
1997 is not compoundable. The provisions as contained in section
345(7), Cr.P.C. have been couched in such a plain and simple language
that there is hardly any scope for any interpretation except that a non
-compoundable offence cannot be made compoundable by this Court for
the simple reason that no amendment, deletion, insertion or addition
could be made by this Court and it could only be done by the Legislature
as this aspect of the matter falls in its exclusive domain of jurisdiction.
The provisions as contained in section 345, Cr.P.C. cannot be stretched
too far by including the non-compoundable offence therein under the
garb of humanitarian grounds or any other extraneous consideration.
The offences committed by the appellant are not of grave and alarming
nature but the same are against the society as a whole and cannot be
permitted to compound by any individual on any score whatsoever. It
may be noted that tabulation of the offences as made under section 345,
Cr.P.C. being unambiguous remove all doubts, uncertainty and must be
taken as complete and comprehensive guide for compounding the
offences. The judicial consensus seems to be that "The Legislature has
laid down in this section the test for determining the classes of offences
which concern individuals only as distinguished from those which have
reference to the interests of the State and Courts of law cannot go
beyond that test and substitute for it one of their own. It is against public
policy to compound a non-compoundable offence, keeping in view the
state of facts existing on the date of application to compound. No
offences shall be compounded except where the provisions of section
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345. Cr.P.C. are satisfied as to all 'matters mentioned in the section'. (Emphasis provided

3. Besides, accused not only involved in committing sodomy with minor

boy but the accused having the history of committing such a heinous offence
with other minor boys/students, capturing the video clips and flashing the
same on electronic media is not disputed. The USB received by the prosecution
was exhibited in evidence including the photographs of accused person with
victim while committing sodomy, however, no specific question was asked in the
statement of accused recorded under Section 342, Cr.PC with regard to production
of USB as well as photographs which were produced without any objection, even
accused failed to examine himself on oath as provided under Section 340(2)
Cr.P.C. The paragraph 21 of the trial Court judgment being relevant is reproduced
herewith:-

“21. Moreover, the prosecution has also relied upon a USB

containing video recording of alleged incident. It is pertinent to
mention here that the video evidence is an important piece of
evidence and it can be presented before a Court of Law if some
conditions are met. Before getting it admitted, exhibited, it will be
necessary to explain how was it acquired or what was its origin or
source. A forensic should be presented to show that the video has
not been edited. Such conditions are lacking in the present case
and without fulfilling such conditions video evidence will have no
probative value. Admittedly, in the present case the video clip was
not for forensic analysis. In absence of any forensic report about
the genuineness or otherwise of the said video clip, no reliance can
be place on such piece of evidence as held in the case of
Asfandayr and another vs. Kamran and another ( 2016 SCMR
2084)

4. Surprisingly, the victim namely Sahil Hussain was examined by the

prosecution before the trial Court and the learned ADPP declared the said witness
hostile and requested for cross-examination but such request of the learned ADPP
was straightaway declined by the trial Court without mentioning reasons for
declining such request though the victim was material witness of the prosecution.
It is also matter of record that the statement of one Qurban Ali, father of victim,
was recorded by the Magistrate under Section 164, Cr.P.C. on 06-08-2020 but the
trial Court has failed to examine the said Magistrate to record his evidence to
determine the truth or falsehood of the evidence of Qurban Ali. It is settled
principle of law that if a witness, resile from his evidence, in that eventuality, the
learned Magistrate who recorded the statement under Section 164 Cr.P.C. was
required to be examined. However, that legal course was not adopted by the trial
Judge. Hence, this is a clear case of miscarriage of justice.

5. Perusal of above, it reveals that despite availability of USB, the same was
not sent to Forensic examination; whereas record further speaks that application
was filed by the prosecution to refer that USB to the Forensic examination, which
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is available at page 73 of R&Ps and but it was declined by the trial Court vide order dated 13.04.2

6. So far as the exercise of powers under Section 435, of the Code of

Criminal Procedure, 1898 are concerned, a careful reading of Section 435, Cr.P.C.
reveals that the High Court has authority, not only suo motu but also on an
application of an aggrieved party, to call for and examine the record “of any
proceeding before any inferior criminal court” and pass appropriate orders in
terms of powers vested under section 439 Cr.P.C. Thus, in order to invoke the
revisional jurisdiction of the High Court under section 435, Cr.P.C., two
conditions precedent constituting jurisdictional facts would require to be fulfilled:
First, it should relate to “proceedings”; and second, the said “proceedings” should
be before an “inferior criminal court”. Reference may be made to the Case of Ali
Gohar and others v. Pervaiz Ahmed and others (PLD 2020 Supreme Court 427).

7. In view of given circumstances, IGP, Sindh, shall ensure that USB shall be
sent to the Forensic examination and he shall also ensure that Forensic
examination is carried out by any competent public or private lab within country
or out of the country within a period of two months. Nazir shall seal the same and
handover the police officer assigned by the IGP Sindh.

8. It appears that the accused was in custody at the time of trial; therefore, he
shall be taken into custody with direction to the SHO concerned that accused shall
be kept in District Jail Khairpur. Learned District Judge, Khairpur, shall proceed
with the case himself and shall examine the persons who will submit forensic
report.

9. Thus, this Criminal Suo Motu Revision No.155 of 2023 with regard to
crime No. 105 of 2020 is allowed, the accused is taken into custody. The case is
remanded to the learned District & Sessions Judge, Khairpur for de novo trial by
providing sufficient opportunity to the prosecution to record evidence of the
material witnesses and after summing up the prosecution evidence the statement
of the accused shall be recorded in accordance with the provisions of Section 342,
Cr.P.C. putting all the material questions relating to the incriminating evidence
appearing in the prosecution evidence as well as photographs and USB shall be
examined/assessed as per law and forensic report shall be brought on record, then
the case should be decided afresh on merits in accordance with law without being
influenced of the impugned judgment.

10. With regard to the compromise application as the same is not reflecting in
the case diary of trial court and non-examination of the Magistrate, who recorded
164 CrPC statement. The MIT-I shall examine these aspect with regard to judicial
conduct of the Presiding Officer with due notice and thereafter if case of any
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negligence and misconduct, he shall take-up the matter on the departmental side. The copy of this

Office shall return R &Ps to the learned District & Sessions Judge,
Khairpur.

JUDGE