TAJ-UD-DIN and another vs STATE and another
This criminal petition arises out of an application for post-arrest bail filed by the accused-petitioners Taj-ud-Din and Bilal, facing prosecution under Sections 496-A, 365-B and 380 of the Pakistan Penal Code 1860 in FIR No. 220 registered at Police Station Pahari Pura. The core legal questions involved whether a compromise in a non-compoundable offense can serve as a ground for bail, and whether the absence of proof regarding a prior marriage makes the case for abetment arguable. The Peshawar High Court held that while a compromise in non-compoundable offenses is not solely binding for acquittal or bail, it operates as a mitigating circumstance under the principle of forgive and forget. Furthermore, the existence of a Nikahnama and the lack of immediate proof regarding a previous marriage rendered the petitioners' case one of further inquiry. Consequently, the Court accepted the bail application, granting release to the petitioners subject to furnishing reliable sureties. The key principle laid down is that compromises in non-compoundable offenses may be considered as mitigating factors for bail alongside arguable evidentiary gaps.
- Can a compromise in a non-compoundable offense be considered as a mitigating circumstance for granting bail?
- Does the lack of immediate prosecution evidence regarding a previous marriage make a case of abduction arguable for the purpose of bail?
- Section 496-A, Pakistan Penal Code 1860
- Section 365-B, Pakistan Penal Code 1860
- Section 380, Pakistan Penal Code 1860
Accused-petitioners Tajud Din and Bilal facing prosecution in case FIR No, 220 dated 28.3.2008 under Sections 496-A, 365-B & 380 PPC registered at Police Station, Pahari Pura, were refused bail by the lower forums. Now they have approached this Court for their release on bail.
2. Brief facts of the case are that on 26.3.2008 Ali Rehman alias Ali complainant reported the matter to the police to the effect that he alongwith his family members shifted from their village and are residing at Corporation Colony Peshawar; that one Miraj son of Khiasta Rehman was their neighbour in the village and the said Khiasta Rehman demanded the hands of his sister Mst. Farida Bibi for his son Miraj which he refused because she had already been engaged with one Roohullah their relative and their rukhsati was to be held after 15/20 days. On 24.3.2008 the complainant went to his office situated at Shalimar Plaza G.T. Road, Peshawar in connection with his property business, when he was informed by his son namely Bilal Ali about the missing of Mst. Farida Bibi. On this the complainant returned to his home and found his sister missing. He searched for her and later on came to know that she has been enticed/kidnapped by Miraj accused for the purpose of marriage with him at the instance of Tajud Din, Bilal and Shamshad Begum.
3. At the very out set the complainant Ali Rehman alias Ali produced a compromise deed and submitted that he has effected compromise with the accused-petitioners with the intervention of the elders of the locality and he does not want to pursue the matter any further. The written compromise deed is Ex.PA which is placed on file. Joint statement of Ali Rehman complainant and elders of the locality namely Abdul Malik and Raza Khan was recorded, who endorsed the genuineness of the compromise. The offences are not compoundable and the compromise cannot be the sole ground entitling the accused-petitioners to the concession of bail but the same can however, be taken into consideration as a mitigating circumstance while considering the prayer of bail of the petitioners alongwith other grounds on the principle of forgive and forget as held in the case of 'Mukhtar Ahmad and 3 others Vs. The State" reported in (1999 P.Cr.L.J 1107 (Lahore).
4. I have heard the learned counsel for the parties on merits as well as on the compromise submitted by them and have gone through the record with their able assistance.
5. Perusal of the record reveals that the petitioners have been charged for abetment and helping the enticement of Mst. Farida Bibi. There is a Nikahnama dated 24.3.2008 showing the marriage of Mst. Farida the alleged abductee with Miraj-ud-Din son of Khiasta Rehman and nothing has been brought on record by the prosecution that she was previously married to Roohullah son of Tor Muhammad and the prosecution has yet to prove during trial the factum of previous Nikah or marriage of Mst. Farida, and this aspect of the case makes the case of the accused-petitioners arguable for the purpose of bail.
6. In view of the facts and circumstances of the case narrated above, this bail application is accepted and the accused-petitioners are released on bail provided they furnish bail bonds in the sum of Rs, 3 lays (rupees three hundred thousand) with tyro sureties each in the like amount to the satisfaction of Illaqa/Judicial Magistrate who shall see that the sureties must be local, reliable and men of means.
The above the reasons for my short order dated 18.8.2008.