2010 P Cr (PLP)

SARDAR TARIQ MASOOD, J.

Muhammad Makki petitioner seeks bail before arrest in case F.I.R. No.556 dated 7-12-2009 registered under sections 377/511, P.P.C. at Police Station Noushera Jadid District Bahawalpur.

2. Briefly, the allegation against the petitioner is that while taking the complainant inside the school, the petitioner tried to commit sodomy with the complainant after removing his shalwar.

3. At the very outset, learned counsel for the petitioner contends that the complainant is present in Court duly identified by learned counsel for the complainant and he had effected compromise with the petitioner. To this effect, he has produced affidavit of the complainant which is placed on the record as Mark-A. According to the complainant, he had involved the petitioner on the asking of the witnesses and has no objection if his pre-arrest bail is confirmed.

4. On the other hand, learned Addl. P.-G. for the State opposed the bail application by contending that the offences are not compoundable and the petitioner has no ground for grant of bail.

5. Heard. Record perused.

6. In the F.I.R., it is mentioned that the petitioner tried to commit sodomy with the complainant. Both the offences are not compoundable. However, the parties have themselves entered into a compromise outside the court. Unnatural offences as mentioned in section 377, P.P.C. do not find mention in the table given in section 345(1), Cr.P.C. and therefore, are not compoundable. However, the fact that they have themselves voluntarily entered into a settlement outside the court, may be considered as a ground for the grant of bail in the interest of justice and equity. Judicial notice of compromise was always taken by the court in the matter which was otherwise not compoundable. Supreme Court of Pakistan while taking judicial notice of compromise in a non-compoundable offences, converted the petition from Special Leave to Appeal into an Appeal and accepted the appeal by reducing the sentence to that which had already been undergone in the case of Ghulam Ali v. The State (1997 SCMR 1411). If the complainant party was no longer willing to prosecute a matter any further, then it is not for this Court or the Courts subordinate to compel the parties to do so, as the saying goes, "you can take the C horse till the water but you cannot make him drink." In a similar case reported as Muhammad Akbar v. The State (1997 MLD 3096), the factum of compromise was taken into consideration while granting bail in the offence under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with section 377, P.P.C. Likewise, in the case of Niaz Ahmad v. The State 1987 MLD 1780(1) compromise was taken into consideration in a rape case and bail was granted. In the case reported as Mussarat Elahi alias Bibi v. The State (1997 PCr.LJ 1193), the same view was taken by this Court. Thus, I am fortified in my opinion that the judicial notice of compromise having been taken place can be taken even in the offences which are not compoundable.

7. Resultantly, this petition is allowed and the ad interim pre-arrest bail already granted to the petitioner vide order dated 22-12-2009 is confirmed subject to his furnishing bail bonds in the sum of Rs.50,000 (Rs. Fifty thousand only) with one surety in the like amount to the satisfaction of D.R. (Judi) of this Court. N.H.Q./M-162/L Bail granted.