AZIZ KHAN and another vs THE STATE and another
This criminal petition arises out of an application for post-arrest bail in a case 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. The petitioners were accused of committing sodomy. The core legal questions involved whether an unnatural offence under section 377 is compoundable under section 345 of the Code of Criminal Procedure 1898, and whether an out-of-court compromise between the parties can serve as a ground for granting bail. The Peshawar High Court held that the offence under section 377 Pakistan Penal Code 1860 is not compoundable under section 345 of the Code of Criminal Procedure 1898. However, the court established the principle that a voluntary outside-court settlement and compromise between the parties may be considered as a mitigating ground for the release of the accused on bail in the interest of justice and equity. Accordingly, the bail petition was accepted.
- Whether an unnatural offence under section 377 of the Pakistan Penal Code is compoundable under section 345 of the Code of Criminal Procedure?
- Can an out-of-court compromise between the parties be considered as a ground for granting post-arrest bail in a non-compoundable case?
- Whether minority of the petitioners and a voluntary settlement can justify release on bail in the interest of justice?
- 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 F.I.R. No,589 registered with Police Station Ghaligy, Swat on 25-7-2003 under section 377/34, P.P.C. Read with section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The allegation against the petitioners is that they on 24- 7-2003 at 23-00 hours in the house of Dr. Dost Muhammad, subjected Miran (13/14) to the act of sodomy. The matter was reported to the. Police on 25-7-2003 at 20-45 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 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.
5. 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 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 v. The State 1995 M LD 1826, Mst. Musarrat Elahi alias Bibi v. The State 1997 PCr.LJ 1193, Ghulam Ali v. The State 1997 SCM R 1411 and Mukhtar Ahmad and 3 others v. The State 1999 PCr.LJ 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,1,00,000 (Rupees one lakh) with two sureties each in the like amount, to the satisfaction of Illaqa Qazi/Judicial Magistrate, Swat.