PESHAWAR: The Peshawar High Court Mingora Bench has granted bail to five suspects charged with gang rape of a teenaged girl in Swat district after the alleged victim entered into a compromise with them and pardoned them.

A single-member bench of Justice Shahid Khan accepted two bail petitions jointly filed by the five suspects on condition of furnishing two sureties of Rs200,000 each.

While an assistant advocate general Hafiz Ashfaq Ahmad contended that the offence was not compoundable and they should not be granted bail on basis of compromise, the bench observed that when other grounds were available to the accused, prima facie making their case that of further inquiry, then even a compromise along could be considered for the grant of bail.

The bench has also referred to an earlier judgement of the Supreme Court of Pakistan (1997 SCMR 1411) wherein the apex court had ruled: “If the complainant party was no longer willing to prosecute a matter further, then it is not for the court or the courts subordinate to compel the party to do so, as the saying goes, ‘you can take the horse to the water, but you cannot make him drink’.”

‘Victim’ entered into compromise with petitioners

The bench has also referred to a judgment of the Sindh High Court observing that in almost identical situation that court had also granted bail to an accused.

The bench observed that a bare look at the impugned order of the trial court of June 17, whereby the bail pleas of the suspects were rejected, would reveal that the complainant/victim in the company of her father appeared before the trial court and stated that she had patched up the matter with the accused party by way of a compromise and she would have no objection if the accused/ petitioners were released on bail.

The petitioners’ counsel had also agitated the same plea of compromise arrived at between the parties and had also placed on record the compromise deed and joint statements of father of the complainant and that of complainant herself.

The victim and her father had stated that they had compromised on the matter on the intervention of elders of the area.

FIR of the incident was registered at Ghalegay police station, Swat, on May 31, 2023, under section 376 (punishment for rape) of the Pakistan Penal Code and section 37 (punishment for violence) and 53 (sexual abuse) of the Khyber Pakhtunkhwa Child Protection and Welfare Act.

The alleged victim was the complainant in the FIR claiming that she had gone to the residence of her uncle with her mother and had gone out from there to purchase some items.

She alleged that two persons on a motorcycle approached her and engaged in conversation with her. She claimed that she was lured by them and taken to a drawing room of a residence where three other persons were also present.

The victim alleged that the said five persons took turns to sexually assault her.

She identified one of the suspect as Imad and stated that she could identify the other four if they appeared before her.

Subsequently, the suspect Imad was arrested who during interrogation provided names of the other four suspects/petitioners identified as Majid Khan, Suleman Khan, Mohammad Wali and Mumtaz Khan.

Earlier, a child protection court/trial court in Swat had rejected bail pleas of the five petitioners on June 17 with the observation that allegations of rape and violence with the victim found support from medical report.

The trial court had further observed that sufficient incriminating material was available on case file to prima facie connect the accused/petitioners with the commission of the offence.

“Though, complainant has effected compromise with accused/petitioners by recording confessional statement before court however offences levelled against accused/petitioners are offences against morality, society, religion and effect the whole society at large,” the court had observed.

The court had further observed that it was need of the day that such elements be treated seriously and with an iron hand.

“Furthermore, if such like offence is not discouraged, it would affect the whole society and definitely granting of bail in such like offences would encourage the culprits and would badly effect the society.”

Published in Dawn, July 10th, 2023