MUKHTAR AHMAD and 3 others vs THE STATE

ORDER

' Mukhtar Ahmad, Zulfiqar Ali, Liaqat Ali and Nasir, petitioners, were arrested on the 16th of September, 1998, and are in jail eversince awaiting their trial which has not yet commenced in pursuance of a case registered against them vide F.I.R. No,628, dated the 21st of June, 1998, recorded under section 377 of the Pakistan Penal Code read with section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance of 1979 (VII of 1979), at Police Station Jaranwala of District Faisalabad, regarding an occurrence which allegedly took place on the 20th of June, 1998, in the area of Chak No,61/GB, which is about three miles from the police station where the F.I.R. Was lodged on the 21st of June, 1998, at 12-25 p.m. By one Abdur Razzaq, a paternal-uncle of the victim Shahid Mahmood.

2. Learned counsel for the petitioners submits that a compromise has been effected between the parties which may be taken into account as a ground for the grant of bail. This factual position is verified by the learned counsel for the complainant as also the learned counsel for the State.

3. 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.

4. Unnatural offences as mentioned in section 377 of the Pakistan Penal Code do not find mention in the table given in section 345, subsection (1) of the Criminal Procedure Code and, therefore, are not compoundable. Similarly, section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance of 1979, (Ordinance No, VII of 1979) does not figure in the table mentioned under section 345, Cr.P.C.

And, therefore, is not compoundable. However, the fact that the parties have themselves voluntarily forgotten and forgiven a certain crime and have entered into an outside Court settlement, may be considered as a ground for the grant of bail in the interest of justice and equity. If the complainant party is no longer willing to prosecute a 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".

5. In a 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 1997 SCMR 1411. 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.

6. Resultantly, the petitioners are granted bail provided they furnish bail bonds in the sum of Rs,50,000 each with two sureties each in the like amount to the satisfaction of the trial Court.