ORDER RAUF AHMAD SHEIKH, J.---The petitioner has assailed the vires of the order dated 10-10-2007, passed by learned Magistrate, 1st Class Daska, whereby the accused/respondents Nos.2 to 4 were acquitted in case F.I.R. No.35 dated 25-1-2007 under sections 420/ 468/471, P.P.C. On the ground that a compromise was effected between the complainant/ petitioner and the accused/ respondents at the time of hearing of bail petition.
2. It is contended by the petitioner that she had lodged the case against the respondents Nos. 2 to 4 and four others and interim report under section 173, Cr.P.C. Was submitted wherein the remaining accused persons were yet to be arrested. The pre arrest bail petition moved by the respondents was dismissed by the learned Additional Sessions Judge and after their arrest, they moved an application for grant of post arrest bail which was accepted on 8-3-2007 due to compromise. Thereafter challan was submitted in the Court and the respondents Nos.2 to 4 were summoned by the Court to face the trial. However, they were acquitted through the impugned order without framing of the charge on the basis of previous compromise at bail stage although the offence allegedly committed by them was not compoundable. It is thus contended that the impugned order is illegal, unlawful, without lawful authority, without jurisdiction and coram-non- judice. In support of the contentions raised reliance is placed on PLD 2009 Supreme Court 866 and 2004 YLR 911.
3. Learned counsel for the respondents has contested the petition. It is contended that the remedy in form of appeal against acquittal under section 417(2-A), Cr.P.C. Was available to the complainant/ petitioner and she has not availed of the same so she cannot invoke the constitutional jurisdiction of the Court. It is contended that the offence was validly compounded so the impugned order is lawful and does not suffer from any A infirmity.
4. The schedule (II) of the Code of Criminal Procedure, 1898, provides that an offence punishable under section 420, P.P.C. Is compoundable with the permission of the Court, whereas the offences punishable under sections 468/471, P.P.C. Is not compoundable. This being so the compromise at the bail stage do not constitute a valid ground for acquittal of the accused. The learned trial Court was not vested with the powers to act upon the statement made by the complainant/ petitioner during hearing of the bail petition and illegally acquitted the accused on the basis of alleged compromise in a non compoundable offence. The order, therefore, is patently illegal and without lawful authority. Such orders cause miscarriage of justice and should not be left unnoticed by the High Court while exercising constitutional jurisdiction merely on the ground that an appeal was not preferred against the order. Such void orders do not exist in the eyes of law and may be directly assailed through the constitutional jurisdiction.
5. For the reasons supra, the writ petition is accepted and the order dated 10-10-2007, passed by learned Magistrate acquitting the accused/respondents Nos.2 to 4 is hereby set aside. The learned trial Court is directed to summon the accused and proceed further in accordance with law.