' The petitioner has applied for bail in a theft case registered at Police Station Mirpur, Abbottabad, on 5-6-2000 under sections 452/457, P.P.C. Read with section 22 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. The report was registered on the information furnished by Muhammad Akram. Muhammad Akram, reported that around midnight between 4/5-7-2000 he was woken up from sleep on the roof top of the house of his brother Ali Akbar by the barking of the dog. He woke up his brothers Gulzar and Shah Zaman. They noticed that the door of the house of his brother Ali Akbar was opened. They went in to check and found that the lock was broken.
They proceeded inside the house and there found Jamshed alias Javed, their co-villager, with a suit case in his hand. The thief tried to escape and in the process also gave a blow and injured Gulzar. However, he was overpowered. They found that the suit case was stuffed with articles stolen from the house. The thief was detained and later in the morning the matter was reported to the police. The petitioner was declined bail by the lower Courts.
2. Apart from making submissions on the merits of the case the learned counsel mainly stressed upon the compromise arrived at between the parties. When confronted with the question as to whether bail must be granted on the basis of compromise in a non-compoundable offences the learned counsel referred to a number of reported judgments in support of his contention that the Courts have been allowing bail even in non-compoundable offences on the strength of compromise. The learned A.A.-G. Submitted that compromise in non-compoundable offences may be a factor to be taken into account while granting bail but cannot be made its sole basis.
3. In compoundable offences the Courts have released accused on bail on the strength of compromise. In non-compoundable offences the Courts also at times taken into consideration the compromise between the parties in granting bail to the accused. The learned counsel for the petitioner cited a number of judgments in which compromise was considered by the Courts even in non-compoundable offences. It will be appropriate to refer to these judgments to see whether compromise itself would entitle an accused to bail charged for non-compoundable offence.
Reliance was mainly placed on the judgment of the august Supreme Court in Ghulam Ali v. The State 1997 SCM R 1411 as this judgment has been relied upon subsequently by the Courts for granting bail on compromise in non-compoundable offences. The case before the Supreme Court was not of bail but an appeal against conviction in a corruption case. The parties compromised and the person from whom money was obtained deceitfully and for which the appellants were convicted, compromised with the victims after the convicts reimbursed the victim with the amount obtained by them. The august Supreme Court took the compromise and the return of the money into consideration and reduced the sentence to that already undergone. The Court, however, neither set aside the conviction nor totally remitted the sentence on the basis of 'compromise but only reduced the sentence. In Muhammad Sabir v. The State 1992 PCr.LJ 579 bail was granted when the parties had entered into a compromise in a non-compoundable offence, but the Court also found the facts of the case favourable to the accused when it found that the injury received by the victim was not grievous. In Muhammad Shafi Tahir v. The State 1978 PCr.LJ 177 the Lahore High Court accepted the compromise between the parties as a redeeming feature for the grant of bail where the petitioner was accused of killing his wife, in addition to the fact that the report was lodged one month after the incident. The case of Khurshid Ahmad v. State 1976 SCM R 193, was an appeal against conviction under the repealed section 307, P.P.C. Which was non-compoundable then. The Supreme Court only reduced the sentence while maintaining the conviction. In Muhammad Akram v. The State 1995 M LD 1826 the Lahore High Court granted bail in a sodomy case registered under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, not only because of the compromise but because the main eye-witnesses had submitted affidavits not supporting the prosecution case. Again in Rabaz v. State 1998 PCr.LJ 1959 besides merits compromise was also considered for the grant of bail. In all the above cases compromise was one of the factors taken into consideration by the Court when granting bail in non-compoundable offences or sentences was reduced because of the compromise.
4. However, there are certain judgments where bail was granted in non-compoundable offences on the strength of compromise alone. In Mukhtar Ahmad v. The State 1999 PCr.LJ 1107 the Lahore High Court granted bail in a Zina case after the parties had compromised. The Court relied upon the case of Ghulam Ali v. State referred to above. However, as already observed in that case only the sentence was reduced on the strength of the compromise. The Case of Ghulam Ali v. The State was also relied upon in an unreported judgment of this Court in Criminal Miscellaneous No,28 of 2000 when bail was granted in a non-compoundable offence after the parties had entered into a compromise. Though the Court did not discuss the merits of the case while granting bail, however, it held that the Court could take the compromise into consideration. It, therefore, did not rule that compromise entitles accused to bail in non-compoundable offence.
5. Reference has also been made to certain judgments of the Federal Shariat Court by the learned counsel for the petitioner. In Sudhir Ahmad v. The State 1999 PCr.LJ 664 the Federal Shariat Court had held that forgiveness or compromise was effective in Tazir cases if matter concerned Haqooqul Ibbad. The Court however, was considering as to whether a compromise between the parties in Tazir cases can be taken as implied extrajudicial confession and it ruled against the proposition. The observations regarding pardon was made as a passing remark and never was an issue before the Court. In Parvez lqbal v. The State PLD 1985 FSC 134 the Court recognized the factum of right of forgiveness in Tazir cases as opposed to Hudood cases, provided the accused comes forward and repents his crime. The Federal Shariat Court in that case was only concerned with the compromise in Hudood cases as opposed to Tazir. The Court, however, did not hold that the accused could be acquitted on the strength of compromise in non-compoundable offences.
6. The above discussion on the case-law shows that where compromise between the parties had been reached in non-compoundable offence during' the pendency of, the appeal the Courts have taken the compromise as a ground for reduction in sentence only. As regards bails such compromise have by and large been considered as one of the factors, alongside the facts of the case, for determining whether bail be granted. Some of the judgments where bails were granted in non-compoundable offences on the basis of compromise alone relied upon the case of Ghulam Ali v. The State (ibid). However, as stated above, the august Supreme Court in that case in an appeal against conviction in a non-compoundable offence had only reduced the sentence because of the compromise. Since the Supreme Court had not acquitted the accused and had taken compromise as a mitigating circumstance in determining the sentence, it is only logical that compromise in non-compoundable offence should not entitle an accused to bail but be considered as one of the factors. Even otherwise the effect of compromise in non-compoundable offences cannot be made at par, even at bail stage, with that of compoundable offence, which ultimately results in the acquittal of the accused.##TE#
7. It was also argued that compromise be accepted because ultimately the accused would be acquitted as the witnesses would not support the prosecution case at the trial. This argument has an inherent flaw. Though it is not uncommon that witnesses resile at the trial from their statements recorded during the investigation however, to consider this as a factor for granting bail would tantamount to conferring legitimacy on this unlawful and immoral practice.
8. As regards the merits of the case the petitioner was caught red handed while stealing. He was detained by the complainant in the house and thereafter produced before the police. The prosecution story is supported by the other inmates of the house. The offence under section 457, P.P.C., that is, lurking trespass of a house for committing theft is punishable with sentence of 14 years imprisonment. Since the merits of the case does not justify the grant of bail to the petitioner the compromise between the parties cannot be taken to entitle the petitioner to bail.##TE#
9. The application is dismissed.