2021 PLP 124 (YLRN)

TARIQ MEHMOOD JAHANGIRI, J.

Through the instant petition, the petitioner seeks bail after arrest in case FIR No. 159/20, dated 02.04.2020, offences under sections 392, 411, 75, P.P.C, registered at Police Station, Ramna, Islamabad.

2. It is alleged in the FIR that on 02.04.2020, two unknown persons committed robbery in the complainant's house, the accused was arrested in some other case and has disclosed that he along with other co-accused has committed robbery in the house of complainant, so the instant FIR was lodged and the petitioner/accused was arrested in this case by the local police.

3. Learned counsel for the petitioner/accused has contended that the petitioner/accused is not nominated in the FIR; there is no evidence against the petitioner/accused and the complainant of the case Mehar Ali has forgiven the petitioner/accused in the name of Allah Almighty. Learned counsel for the petitioner further submits that the compromise effected between the parties be taken into account for grant of bail.

4. Today the complainant of the case, Mehar Ali, is present in the court, he has been identified by the Investigating Officer, the complainant has sworn an affidavit, produced in the Court, wherein it is mentioned that he has forgiven the accused in the name of Allah Almighty, he does not want to pursue the case and if the petitioner/accused is acquitted or released on bail before arrest he has no objection.

5. On the other hand learned state counsel has opposed the bail petition and has stated that the offences are not compoundable, sufficient evidence is available against the petitioner and bail after arrest cannot be granted on the basis of compromise between the parties in non-compoundable offences.

6. Arguments heard record perused.

7. Section 345, Cr.P.C. relates to compounding offences and subsection (1) of section 345 provides that the offences under the sections of the Pakistan Penal Code specified in the first and second columns of the table given therein may be compounded by the persons mentioned in the third column of that table.

8. Offence of robbery as mentioned in section 392 of Pakistan Penal Code does not find mention in the table given in section 345, subsection (1) of the Criminal Procedure Code and, therefore, is not compoundable. Similarly, section 411 of Pakistan Penal Code does not figure in the table mentioned under section 345, Cr.P.C. and, therefore, is not compoundable. However, the fact that the complainant himself has executed the affidavit, wherein he has undertaken that he has forgiven the petitioner/accused on the name of Allah Almighty and shall have no objection if the petitioner/accused is acquitted or released on bail after arrest, may be considered as the ground for the grant of bail in the interest of justice and equity. Where the complainant party is no longer willing to prosecute the matter any further then it is not for this Court or the Courts subordinate to it to compel the parties to do so, as the saying goes, "you can take the horse till the water but you cannot make him drink".

9. In the similar case reported in "Muhammad Akram v. The State 1995 MLD page 1826" the factum of compromise was taken into consideration and bail was granted. More or less, the same view was taken in a case of rape in the case reported in "Mst. Mussarat Elahi alias Bibi v. The State 1997 PCr.LJ 1193", and the Supreme Court of Pakistan took judicial notice of a compromise in a matter which was otherwise not compoundable and converted the petition for Special Leave to Appeal into an appeal and, therefore, accepted the appeal by reducing the sentence to that which had already been undergone in the case of Ghulam Ali v. The State reported as 1997 SCMR 1411.

10. Thus, I am fortified in my opinion that judicial notice of a compromise having taken place can be taken even in offences which are not compoundable.

11. For what has been stated above, without going deep into merits of the case, I hold that it is a fit case for admission of petitioner to bail, consequently he is admitted to bail subject to furnishing bail bonds in the sum of Rs. 1,00,000/- (One Hundred Thousand only) with one surety in the like amount to the satisfaction of learned trial Court.

12. Needless to mention that, this is a tentative assessment which shall not affect the trial of case in any manner. SA/20/Isl. Bail granted.