AAMIR and 2 others vs THE STATE and another

' SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Amir son of Muhammad Arif, Israr son of Muhammad Sadiq and Fiaz Ahmed son of Munawar Ahmed, all residents of village Peer Kot Sani, Police Station Kassoke, District Hafizabad, appellants were involved in case F.I.R. No,18, dated 28-1-2008, offence under sections 367-A, 377, P.P.C., registered at Police Station Saddar Hafizabad and were tried by Mr. Muhammad Farooq Altaf, learned Sessions Judge, Hafizabad, who vide judgment dated 8-5- 2010, convicted the appellants under section 367-A, P.P.C. And sentenced them to imprisonment for life each as Tazir. The appellants were also burdened to pay Rs,20,000 each as fine and in default whereof to further undergo imprisonment for one year S.I. Each. Israr Ahmed appellant was also convicted under section 377, P.P.C. And sentenced to five years' R.I. With fine of Rs,10,000 and in default of payment of tine, to further undergo S.I. For six months. The sentence inflicted upon Israr appellant was ordered to 'run concurrently. The conviction and sentence has been assailed by the appellants by means of instant appeal.

2. Learned counsel for the appellants, at the very outset, states that the complainant as well as victim, with the intervention of respectables of the locality, do not want to pursue the case any more. Further they have also no objection if the appellants are acquitted of the charge.

3. Learned D.P.-G., on the other hand, has opposed this contention with the averments that the offence against the appellants is not compoundable.

4. Learned counsel for the complainant has verified the stance taken by learned counsel for the appellants.

5. Heard, record perused.

6. Today at the time of arguments, both the complainant as well as victim appeared before the Court and volunteered to make statement and stated that they do not want to pursue the case any more. They also stated that they do not object if the appellants are acquitted of the charge.

7. Before discussing that whether the appellants can be acquitted of the charge on the basis of statements made before this Court today by the victim and the complainant or not because the offence is non-compoundable, I am inclined to discuss some facts of the case floating on file.

Admittedly, MLR of the victim does not support the prosecution version. Similarly, Dr. Javed Ahmed (P.W.7) had submitted before the learned trial court that there was no abrasion on the perennial area of the victim and anus was not patulous. It also depicts in his deposition that according to report of Chemical Examiner, Lahore bearing No,1384/S, dated 13-3-2008, the swabs were not found to be stained with semen, meaning thereby that sodomy was not conducted.

8. Perusal of record further reveals that it is a day time occurrence and the alleged victim is 20 years of age. His abduction at day time is also a question mark. Moreover, without any intimidation whether one person can commit sodomy with the other person or otherwise also needs consideration. The stance taken by the appellants at trial stage that actually the father of the victim is police officer, who due to quarrel between the appellants and the victim, had managed this case, in such circumstances of the case, has much weight and the fact that the police during the course of investigation recommended the case for cancellation further supplements this stance. All these facts when put side by side, shatter the prosecution case to the hilt. Moreover, the reasons advanced by learned trial court while convicting the appellants, I must say, are also not weighty.

9. Now I advert to the factum whether compromise can be effected in non-compoundable offence.

I am of the view that the compromise is meant to promote harmonious living and maintain cordial relations between the parties. This view was affirmed by august Supreme Court of Pakistan in the case of Ghulam Shabbir and 2 others v. The State (2003 SCM R 663).

10. For the foregoing reasons I am persuaded to allow this appeal. Consequently, conviction and sentence inflicted upon the appellants in terms of judgment dated 10-5-2010 is set aside.

Appellants Amir son of Muhammad Arif, Israr son of Muhammad Sadiq and Fiaz Ahmed son of Munawar Ahmed are ordered to be released forthwith if not required in any other case.