P

L D 2013 Lahore 651

Before Shahid Hameed Dar, J

ALI RAZA and another–Petitioners

Versus

The STATE and another–Respondents

Criminal Miscellaneous Nos.741-B and 1465-B of 2013, decided on 26th

March, 2013.

(a) Criminal Procedure Code (V of 1898)–

–-Ss. 497 & 345–Penal Code (XLV of 1860), Ss. 395/41–Dacoity, dishonestly
receiving stolen property–Bail, grant of–Grant of bail on basis of compromise
for a non-compoundable offence–Scope–Accused persons allegedly snatched
cash from the complainant and his wife–Accused persons and complainant
subsequently reached a compromise and terms and conditions of the same had
been reduced into writing vide an agreement deed, which was signed by
complainant and one of the accused–Complainant being fully satisfied with the
terms and conditions of compromise had no objection if accused persons were
admitted to bail–Plea of public prosecutor that offence in question was non-
compoundable, therefore accused persons could not be granted bail–Validity–
Although offence alleged was not compoundable, but eagerness of the parties to
settle their dispute by executing an agreement had to be given a sense of respect,
so that they might harvest benefit thereof–Complainant and his wife were
doctors by profession, hence educated persons, who understood the terms of the
compromise well–If loss sustained by the complainant at the hands of accused
persons was made good to his satisfaction, then there might be no harm in
admitting accused persons to bail–Complainant had expressly stated that on
account of the compromise he did not intend to prosecute the accused persons
further–Accused persons were admitted to bail in such circumstances with the
observation that complainant would be within his right to lodge a request for
withdrawal of bail, if the accused side showed hesitation in complying with the
terms and conditions of the compromise agreement.

(b) Criminal Procedure Code (V of 1898)–

–-S. 345–Compromise in case of a non-compoundable offence–Scope–

Compromise even in non-compoundable offences was a redeeming factor, which
brought peace, harmony and coherence in the society, and it might have far-
reaching positive effects in the lives of warring parties.

Syed Khadim Hussain Zaidi, Mazhar Hayat and Ch. Inayat-ur-Rasool

Uppal for Petitioners.

Zahid Younas, District Public Prosecutor.

Muhammad Ahsan Bhoon and Tariq Bashir Awan for the Complainant.

Imran S.I. with record.



ORDER

SHAHID HAMEED DAR, J.–Through this single order, I intend to

dispose of two bail applications, separately moved by accused Ali Raza
(Criminal Miscellaneous No 741-B of 2013) and accused Tahir Hussain
(Criminal Miscellaneous No.1465-B of 2013), as they stood arrested in case
F.I.R. No.626 of 2012, dated 23-7-2012, registered for offences under sections
395, 411, P.P.C., at Police Station Saddar Gujranwala.

2. Precisely, the prosecution case as narrated by Dr.Shahbaz Asghar Uppal

(complainant) is that he came-across an advertisement, published in The Daily
Jhang, whereby, ‘G.M. Ahmad Group of Company’ had offered employment to
visiting doctors/consultants; he established contact with Ali Raza (petitioner) on
his cell-phone who asked him to come to his house on 4-4-2012, whereon, he
reached there and met him; he visited his residence again on 15-4-2012, where
he was introduced with one Mehmood alias Mirza Ahmad who posed for
proprietor of the said company; all of a sudden Shahzad Asghar Butt driver
started playing table-race-game with Mehmood alias Mirza Ahmad, who lost
Rs.4.5 millions to the former; Mehmood alias Mirza Ahmad asked driver Asghar
Butt alias Shahzad to show the amount so that he (Mehmood alias Mirza
Ahmad), might pay him the said amount, which he lost to him in the game; Ali
Raza accused/petitioner took an amount of Rs.7,00,000/- from him
(complainant) and paid it to the winner of the game; he was asked by Ali Raza
accused to visit his house on 3-5-2012 so that he might defray the debt-amount,
whereon he went to the said house on 3-5-2012 in the company of his wife
Dr.Tayyaba Shahbaz, who carried an amount of Rs.7.8 millions with her; Mst.
Kalsoom Bibi accused was present there in the company of Rana Waheed
Murad, Jamshaid Bhatti, Ali Raza (petitioner), Shahzad Asghar Butt, Mehmood
alias Mirza Ahmad, Haji Muhammad Sharif, Haji Muhammad Tufail and two
unknown accused, who, being armed with different weapons rendered him and
his wife helpless and snatched a bag, full of cash Rs.7.8 millions, from his wife
and confined them in a room; the accused also obtained their signatures on some
blank stamp-papers under coercion; the accused chased him and his family so as
to murder them.

3. At the very outset, learned counsel for the petitioners submit in unison
that compromise has been effected between the parties and terms/conditions of
agreement have been reduced into writing vide an agreement-deed, which has
been signed by the complainant, his wife and Mst. Kalsoom Bibi, an accused of
the F.I.R. owing to his satisfaction, the complainant does not oppose the bail-
plea of the accused/petitioners.

4. Learned counsel appearing on behalf of the complainant do not oppose

the contentions of the learned counsel, appearing on behalf of the
accused/petitioners and submit that the complainant is fully satisfied with the
terms and conditions of compromise, hence he has no objection, if the petitioners
are admitted to post-arrest-bail.

5. Learned District Public Prosecutor, however, is not pleased

with the present situation and by tendering copies of some F.I.Rs., registered
against the petitioners, submits that the offences being non-compoundable, the
petitioners may not be granted the relief prayed for.

6. After hearing learned counsel for the parties and perusing the record, it is
observed that the detail of the occurrence, as narrated by the complainant is a
mind-itching-factor and gives rise to a number of probabilities and speculations
as to under what circumstances the complainant and his wife carried with them
such a huge amount of money on the day of the alleged occurrence, especially
when they had no idea whatsoever about the antecedents of the accused side. It
is also an inquisitive circumstance that driver Shahzad Asghar Butt and
Mehmood alias Mirza Ahmad played table-race-game under a heavy bet in
presence of complainant etc. and for what reason he delivered an amount of
Rs.7,00,000/- to the loser so as to facilitate him to pay the said amount to the
winner. It appears that something is being hidden by both the sides. The
probability cannot be ruled out that the F.I.R. case as narrated by the
complainant suffered from certain distortions or twist of facts. Nevertheless,
Mst. Kalsoom Bibi accused and Dr.Shahbaz Asghar Uppal have compounded the
affair/offence as per terms and conditions, entailed in agreement-deed Mark-A,
which the parties intend to follow in due course of time. The offence alleged is
certainly non-compoundable but, eagerness of the parties to settle their dispute
by executing an agreement, in mentioned terms has to be given a sense of
respect, so that they may harvest benefit thereof. The complainant and his wife,
who are doctors/medical-officers by profession, hence, educated persons; well
understand the ins and outs of the compromise arrived at and they, being, present
in person like Mst. Kalsoom Bibi accused have expressly stated that they on
account of compromise do not intend to prosecute the accused-petitioners
further. If the loss allegedly sustained by the complainant and his wife at the
hands of the accused/petitioners has been made good, to their entire satisfaction,
there may be no harm in allowing the instant applications for bail after arrest.
Even otherwise, it has always been observed that the compromise even in non-
compoundable offences is a redeeming factor, which brings peace, harmony and
coherence in the society and it may have far-reaching positive effects, in the
lives of warring-parties.

7. Therefore, I allow both the applications (Criminal

Miscellaneous No.741-B of 2013 and Criminal Miscellaneous No.1465-B of
2013) and admit the petitioners to post arrest bail subject to furnishing bail
bonds in the sum of Rs.5,00,000/- each with two sureties each in the like amount
to the satisfaction of learned trial court.

8. Before parting with this order, it is clarified that the complainant would
be within his right to lodge a request for withdrawal of aforesaid facility, if the
other side shows hesitation in complying with the terms and conditions of the
agreement, as entailed in the said deed (Mark-A).

MWA/A-48/L Bail
granted.