Akbar Ali vs State etc

PESHAWAR HIGH COURT MINGORA BENCH

(DAR-UL-QAZA), SWAT

JUDICIAL DEPARTMENT

JUDGMENT SHEET

Cr. M (BA) No............. 05/2015

Date of Hearing: ............26.1.2015

Petitioner: ( Akbar Ali) M/S Muhammad Raziq & Aziz Muhammad.

Respondent: (The State & other) by Mr. Sabir Shah (AAG).

MALIK MANZOOR HUSSAIN, J.- Petitioner,

Akbar Ali, involved in case FIR No. 708 dated 26.12.2014, under Sections 377/511/34 PPC, registered at Police Station, Balambat, District Dir lower, after he failed to secure the relief from the Courts below, has applied for bail before this Court.

2.The allegation against the petitioner is that he alongwith their co-accused on 26.12.2014 at 17.30 hours committed sodomy on Shoukat, complainant.

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3.Learned counsel for the petitioner

contended that there is five hours unexplained delay in lodging of the report and version of the complainant has not been supported by medico legal because as per opinion of doctor, no sign of sodomy was seen, therefore, case of the petitioner is of further inquiry. He further contended that two of the accused of similar role have been released on bail by the learned Judicial Magistrate vide order dated 1.1.2015 on the basis of compromise, therefore, on principle of consistency the petitioner is also entitled to the concession of bail.

4.Conversely, learned AAG opposed the bail application and contended that the offence for which the petitioner is charged is of moral turpitude and not compoundable, therefore, the petitioner is not entitled to the concession of bail.

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5.I have considered arguments of learned counsel for petitioner and Learned AAG and record perused.

6.Admittedly, complainant through his

guardian has patched up the matter with all the three accused and got no objection if the accused/petitioner is released on bail. Perusal of record reveals that learned Judicial Magistrate released on bail two of the accused, namely, Imran ul Haq and Shah Zeb of similar role on the basis of compromise on 01.01.2015 while refused the same prayer to the petitioner on the same ground.

7.As the role of petitioner is at par with that of his co-accused and the fact that complainant party had voluntarily entered into a settlement outside the court, therefore, may be considered as ground for grant of bail.

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It is well settled by now that judicial notice has been always taken by the Court in the matter which was otherwise not compoundable. Hon'able the apex Court in the case of (Ali Muhammad Vs. The State (1997 SCMR 1411) considered the compromise in non-compoundable offences and accepted the appeal while reducing the sentence. Similar view was taken in the case of (Muhammad Akbar vs. The State (1997 MLD 3096) where on the basis of compromise, bail was granted in a case registered under section 12 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979, read with Section 377 PPC, followed in the case of Musarat Elahi alis Bibi vs. The State (1997 P.Cr.L.

J 1193). In a rape case bail was granted on the basis of compromise in the case of Niaz Ahmad Vs. The State (1997 MLD 1780 and this view was followed by this *Zafral ktk *

court in the case of Amir and other vs. The state (2009 P.Cr. L. J 197). The basic concept for granting bail in such like offences which prevailed upon the court of law are that if the complainant party would not support their case during trial or to prosecute the matter any further then it would be a fruitless exercise to keep an accused behind the bar, if the case is otherwise made out for bail.

Without touching other merit of the case lest it may prejudice the case of either party, this bail application is allowed and petitioner is directed to be released on bail provided he furnishes bail bonds in the sum of Rs.3,00,000/- (Rupees three Lac), with two sureties each in the like amount to the satisfaction of trial Court, who shall ensure that the sureties are local, reliable and men of means.

Announced.

Dt. 26.1.2015 JUDGE *Zafral ktk *