AZIZ KHAN and another vs STATE and another
This criminal petition arises out of post-arrest bail sought by petitioners Aziz Khan and Sajid, who stand arrested in case FIR No. 589 registered under Section 377/34 of the Pakistan Penal Code 1860 read with Section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979 for allegedly committing sodomy. The core legal question concerns whether an uncompoundable offense can form the basis for bail on the ground of a compromise between the parties. The Peshawar High Court held that while the offense under Section 377 of the Pakistan Penal Code 1860 and Section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979 are not compoundable under Section 345 of the Code of Criminal Procedure 1898, the fact that the parties have voluntarily entered into an outside court settlement may nevertheless be considered as a valid ground for the release of the accused on bail in the interest of justice and equity. The petition was accordingly accepted and bail granted.
- Whether an offense under Section 377 of the Pakistan Penal Code 1860 is compoundable under the Code of Criminal Procedure 1898?
- Can an outside court settlement or compromise in a non-compoundable offense be considered as a ground for granting bail?
- Does Section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979 figure in the table of compoundable offences under Section 345 of the Code of Criminal Procedure 1898?
- Section 377, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 12, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 345, Code of Criminal Procedure 1898
- Section 345(1), Code of Criminal Procedure 1898
Aziz Khan and Sajid petitioners stand arrested in case FIR No, 589 registered with Police Station Ghaligy, Swat on 25.7.2003 under Section 377/34 PPC read with Section 12 of the Offence of Zina (Enforcement of Huddod) Ordinance, 1979. The allegation against the petitioners is that they on 24.7.2003 at 2300 hours in the house of Dr. Dost Muhammad, subjected Imran (13/14) to the act of sodomy. The matter was reported to the police on 25.7.2003 at 2045 hours by complainant Abdul Akbar, brother of the victim. After their arrest, the petitioners moved the Courts below for grant of bail but their plea was turned down. Hence this petition.
2. The bail is sought on the ground of compromise and minority of the petitioners. It is submitted by Mr. Shah Nawaz Khan, Advocate learned counsel for the petitioners that complainant party has entered into a compromise with the petitioners and they are no longer willing to prosecute the matter any further. He also submitted that at the relevant time the petitioners were minor and this fact alone constitutes a good ground for release of the petitioners on bail.
3. Complainant Abdul Akbar, brother of the victim admits' this factual position and maintains that a compromise has been effected between the parties with the intervention of the elders of the locality and they are no more interested to proceed with the matter. His statement has been recorded to this effect.
4. Section 345, Cr.P.C., relates to compounding offences and sub-section (1) of Section 345 provides that the offences tinder 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.
5. Unnatural offences as mentioned in Section 377 of the Pakistan Penal Code do not find mention in the table given in Section 345, sub-section (1) of Section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 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 release of the accused person on bail in the interest of justice and equity. Muhammad Akram vs. The. State (MLD 1995 Page 1826), Mst. Musarrat Elahi alias Bibi vs. The State (1997 P.Cr. L.J. 1193), Ghulam Ali vs. The State (1997 SCMR 1411) and Mukhtar Ahmad and three others petitioners vs. The State respondent (1999 P.Cr. L.J. Lahore 1107).
6. Consequently, the application is accepted and the petitioners are directed to be released on furnishing bail bonds each in the sum of Rs, 100,000/- Rupees One Lakh) with two sureties each in the like amount, to the satisfaction of Illaqa Qazzi/Judicial Magistrate Swat.