' M.A. ZAFAR, J--Muhammad Arshad and Khalid Javed, seek bail after arrest in case F.I.R. No. 547 of 2007, dated 26-10-2007, under section 395, P.P.C. Registered with Police Station Gulberg, Faisalabad, in which section 412/34 were added subsequently.
2. The prosecution story as disclosed in the F.I.R. Is that the complainant Basharat Aslam submitted an application before the police that the Driver opened gate of house to take away the children to School on 26-10-2007 at 6-45 a.m., suddenly five unknown persons armed with pistols overpowered the Driver. Four persons took him into the house and fifth remained inside white colour car. After overpowering the family members they locked them in a room and looted the cash, gold ornaments, mobile phones, watches and one licensed pistol with 50 bullets. The description of the accused was also narrated in the F.I.R.
3. Subsequently, during the course of investigation the complainant made supplementary statement on 15-11-2007 and involved Muhammad Sarwar and Me others for committing dacoity and further alleged that Khalid and Fahad of Sheikhupura converted the gold ornaments into gold bars. It was also alleged that the accused persons'have sold the same to Arshad alias Chand and Khalid Javed, the present petitioners and two others.
4. According to prosecution both the present petitioners were apprehended on 28-11-2007 at Bus Stand Faisalabad when they were deboarded from the Bus, at that time Muhammad Arshad petitioner was holding a Shopper bag in his hand, on search, 60 tolas gold ornaments were recovered from him and were taken in possession.
5. It is contended by the learned counsel for the petitioners that the petitioners are running shops of goldsmith in Gujranwala and they were arrested on 27-11-2007, but the police dishonestly shown their arrest from Faisalabad on 28-11-2007. The alleged recovery of gold ornaments is fake. At the time of apprehending the petitioners looted 150 tolas gold ornaments, cash Rs. 50,000 and Prize Bonds Rs.17,000 from the shops of the petitioners and Rs.5,700 were taken out from the pocket of Muhammad Arshad/petitioner No.l. He further submits that the raid conducted by the Faisalabad police was much highlighted and condemned by the public-at-large in Gujranwala and news items also appeared in the local newspapers namely "Daily Makhlooq" and "Daily Samaj", Gujranwala, on 28/29-11-2007, regarding the highhandedness of the police, a day earlier. He further submits that ingredients of section 412, P.P.C. Are lacking in the present case, because it is necessary to show not only that the accused was in possession of the robbed property but further that he knew or had reason to believe that the property had been transferred by the commission of the dacoity. He placed reliance on Farooque Ahmed v. The State (2007 PCr.LJ 345).
' Learned counsel for the petitioners further submits that complainant has exonerated the petitioners and submitted affidavit before the learned Additional Sessions Judge, Faisalabad, during the course of hearing of bail application and the learned Additional Sessions Judge also recorded his statement on the. Date when he dismissed the bail application, vide order, dated 17-1- 2008. The learned Additional Sessions Judge did not grant bail to the petitioners on the ground that offence falls within the prohibitory clause, there is sufficient evidence to connect the petitioners with the commission of offence and both the offences, are not compoundable. The learned counsel in support of his submission that even in non-compoundable offences bail can be granted on the basis of compromise, reliance in this behalf has been placed upon the case of Mazhar Iqbal and others v. The State (2004 PCr.LJ. 923). He submits that the factual position of verification of compromise is not needed as he has placed on record the affidavit of the complainant and the statement recorded by the learned Additional Sessions Judge, and even in the order rejecting the bail application this fact of compromise finds mentioned.
6. Learned Deputy Prosecutor General has opposed the grant of bail on the ground that offences are not compoundable and fall within the prohibitory clause of section 497, Cr.P.C. She further submitted that the recovery of gold ornaments connects the petitioners with commission of offence.
7. After hearing the learned counsel for the petitioners, I find that the petitioners are not amongst the persons who committed dacoity and A there is no such allegation against them either in the F.I.R. Or in the supplementary statement. They are allegedly only the receiver of stolen property for their involvement, prosecution has to mainly prove that they knew or had reason to believe that the property was stolen property. The manner in which recovery of gold ornaments has been effected also is a matter of further inquiry within the meaning of section 497(2), Cr.P.C. As the prosecution own case in supplementary statement is that gold ornaments were converted in gold bars by two other accused named in the aforesaid supplementary statement. Section 345, Cr.P.C. Relates to compounding offences and subsection (1) of section 345, Cr.P.C. Provides that the offences under the sections of the Pakistan Penal Code specified in the first two columns of the table given therein may be compounded by the persons mentioned in the third column of that table.
8. Offence of dacoity as mentioned in section 395, P.P.C. As well as offence of dishonestly receiving stolen property in the commission of a dacoity in section 412. P.P.C. Do not find mention in the table given in section 345(1) of the Criminal Procedure Code, and therefore, are not compoundable.
However, the fact that parties have themselves voluntarily forgotten and forgiven a certain crime and have entered into an outside Court settlement can be considered as a ground for the grant of bail in the interest of justice and ,equity. If the complainant party has been compensated and 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.
9: In a similar situation, in non-compoundable cases this Court granted bail to accused on the ground of compromise, reliance is placed on the case reported as Muhammad Akram v. The State (1995 M LD 1826) and Mst. Mussarat Elahi alias Bibi v. The State (1997 PCr.LJ 1193). Thus, I am fortified in my opinion that the judicial notice of a compromise having taken place can be taken even in offences, which are not compoundable.
' In the present case, there is no allegation of committing dacoity by the petitioners and the charges against them are receiver of the stolen property in a dacoity. The guilt of the petitioners is a matter of further inquiry within the meaning of section 497(2), Cr.P.C. From Muhammad, Sarwar, who is amongst the persons, who allegedly committed dacoity and was implicated in the supplementary statement, Rs.50,000 were recovered on 3-12-2007 and 22 tolas gold ornaments along with other articles total amounting to Rs.5,00,000 (Rupees five lac) have also been recovered from him on 5-12-2007. The challan has already been sent in Court for trial. No useful purpose would be served by keeping the present petitioners in jail, as they are no more required to the police for the purpose of investigation.
10. There is no cavil with the proposition that law is not to be stretched in favour of prosecution and bail cannot be withheld as punishment. Benefit of doubt arising if any can be given even at bail stage. Accused is presumed to be innocent till he is proved guilty beyond reasonable doubt by the prosecution.
' For the reasons recorded above, the petitioners are admitted to bail provided they furnish bail bonds in the sum of Rs.5,00,000 (rupees five lac) each with one surety each in the like amount to the satisfaction of the learned Trial Court.