Burhan Wali and another vs The State
The petitioners sought pre-arrest bail under section 498, Cr.P.C. in case FIR No. 07/2020 registered under sections 365-B/34, Pakistan Penal Code 1860, for allegedly abetting the abduction of the victim girl. The core legal question was whether pre-arrest bail can be confirmed based on a compromise when the underlying offence is technically non-compoundable. The Gilgit Baltistan Chief Court held that although the offence under section 365-B is non-compoundable, the fact that the victim has settled the matter outside court, forgiven the accused, and stated she has no objection to the confirmation of bail constitutes a valid ground for granting pre-arrest bail, as the court cannot compel an unwilling complainant party to prosecute the matter. The court confirmed the ad-interim pre-arrest bail subject to the petitioners joining and cooperating with the investigation.
- Whether pre-arrest bail can be granted or confirmed on the basis of a compromise when the offence involved is non-compoundable?
- Can a court compel an unwilling victim or complainant party to prosecute a criminal matter further?
- Does a statement by the victim forgiving the accused and expressing no objection to bail serve as a ground for pre-arrest bail?
- Section 498, Code of Criminal Procedure 1898
- Section 365-B, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
ALI BAIG, J.---Petitioners of above mentioned both the petitions namely Burhan Wali and Usman Ghani, have sought pre-arrest bail through these pre-arrest bail petitions filed under section 498, Cr.P.C. in case FIR No.07/2020, dated 14-01-2020, registered under sections 365-B/34, P .P.C., at Police Station Jutial, Gilgit.
2. Through this single judgment, I intend to dispose of both the above mentioned petitions, bearing Cr. M.
No.16/2020 and Cr. M. No.22/2020, as both the petitions have been arisen from one and the same FIR bearing No.07/2020.
3. Succinctly , allegations against the petitioners are that on 14-012020, at 12:45 hours, the petitioners/accused have abetted/facilitated the principal accused namely Mashoq-ur-Rehman in abducting victim girl, namely Farhat W ali daughter of Shah W ali, from Jutial Gilgit.
4. The learned counsel for the petitioners has contended that the petitioners/accused have entered into compromise with the alleged victim/abductee. Now, the victim has forgiven the petitioners in the name of Allah Almighty and she has no objection if ad-interim pre-arrest bail already granted on 20-01-2020 and 23-01-2020 respectively are confirmed.
5. Conversely , the learned Deputy Advocate General has, vehemently opposed this petition by contending that the offence under section 365-B is not compoundable; therefore, the petitioners cannot effect compromise with the victim. The learned Deputy Advocate General has further argued that the petitioners are not, cooperating with the Investigating Agency ; therefore, the petitioners are not entitled for concession of bail.
6. I have heard arguments of the learned counsel for the parties and perused the record.
7. The alleged abductee, namely Farhat Wali, had appeared before this Court on 31-01-2020 and had stated that she has entered into compromise with the petitioners/accused and she has forgiven the A accused in the name of Allah Almighty . She has no objection if ad-interim pre-arrest bail already granted on 20-01-20 and 23-01-20 respectively are confirmed.. In this connection, the statement of above named abductee has been recorded by the Registrar of this Court on 31-01-2020 which has been placed on both the files.
8. Although, the offence under section 365-B is not compoundable, however , fact is that parties have settled the matter outside the Court and alleged victim has forgiven the petitioners/accused and the victim has no objection if ad-interim pre-arrest bail already granted by this Court on 20-01-2020 and 23-01-2 020 respectively are confirmed.
Thus, compromise is a ground for grant of pre-arrest bail as, where complainant party is no longer willing to prosecute the matter any further against the petitioners and Court cannot compel the complainant party to do so.
9. In view of what has been discussed above, these pre-arrest bail petitions are allowed. Consequently , ad-interim pre-arrest bail already granted by this Court in favour of petitioners on 20-01-2020 and 23-01-2020 are hereby confirmed on the same terms and conditions.
10. Before parting this judgment, the petitioners are strictly directed to join the investigation and cooperate with the Investigating Agency in investigation of the case of petitioners/accused. File.