' TUFAIL H. EBRAHIM, J.---Through this Criminal Revision Application the applicant has impugned the order dated 31-10-2009 passed by Vth Additional Sessions Judge, Hyderabad, in Criminal Bail Application No,2119 of 2009, whereby the learned trial Court while granting bail, also imposed a condition upon applicant/accused Babar Afzal to file compromise application in the main case.
2. This matter was partly heard and thereafter vide order dated 11-1-2010, Mr. S. Madad Ali Shah, Advocate was appointed as Amicus Curiae to assist this Court on the point of putting any condition upon the accused at the time of granting a bail order.
3. It has been contended by learned counsel for the applicant and duly supported by the learned Amicus Curaie that the condition imposed by the trial Court vide order dated 31-10-2009 is without jurisdiction and therefore, the bail granting order should be modified so that the condition imposed in the said bail order may be deleted. The learned Amicus Curiae has stated that in the present case the complainant being the sole eye-witness and widow of the deceased has filed her affidavit wherein she has specifically stated that she had not disclosed the name of the accused Babar Afzal s/o M. Aslam as accused in the F.I.R. And she fully exonerated the accused. This contention finds support in the case law reported as Muhammad Najeeb v. State 2009 SCM R 448 and Javed Ahmed v. State 2002 M LD 400 Kar. The learned Amicus Curiae has further stated that under sections 496, 497 and 498, Cr.P.C. There is no provision for putting up any condition for granting the bail. He has relied upon the following case-law.
1. Mst. Afshan Bibi v. The State 1998 SCM R 6.
2. Faizur Rahman Sarkar v. The State 1970 SCM R 175.
3. Mian Mahmud Ali Qasuri and others v. The State PLD 1963 SC 478.
' The learned Amicus Curiae has further submitted that the condition imposed by the learned trial Court is not only without jurisdiction but is also harsh, difficult and impracticable to comply on the grounds; (i) accused alone cannot file compromise application, as the compromise application has to be jointly filed by the accused and all the legal heirs of the deceased and such condition cannot be imposed specifically on the accused as if any legal heir of the deceased refuses to sign the compromise application then the same cannot be filed. (ii) by filing compromise application the accused will impliedly accept that he is guilty of the alleged offence. (iii) the minor legal heirs of the deceased can only compound the offence through guardian ad litem and the Diyat amount will have to be paid to the minor legal heirs of the deceased under section 323, Cr.P.C.
4. The learned D.P.-G. Fully endorses and concedes to the contention raised by the learned Amicus Curiae.
5. For the reasons as discussed above. I am fully satisfied that the condition imposed upon the applicant by the trial Court for filing compromise application is without jurisdiction and is not only harsh and difficult but is also impracticable. Therefore, the impugned order dated 31-10-2009 passed by the learned trial Court is modified to the extent that the condition imposed upon the applicant/accused for filing the compromise application is recalled, however, the applicant/accused will remain on same bail as if there was no condition imposed for filing compromise application in order dated 31-10-2009 passed by Vth Additional Sessions Judge, Hyderabad.
6. Criminal Revision Application No,143 of 2009 is disposed of in the above terms.
Before parting with this order, this Court is grateful for rendering valuable assistance by the learned Amicus Curiae.