2025 P Cr (PLP)

Salah-ud-Din, J.

Petitioner Arshad who is involved in case FIR No. 495 dated 19.12.2024, under sections 302,114, 311, 34 P.P.C registered at Levies Post Dargai, District Malakand, has approached to this Court through instant petition for his post arrest bail.

2. As per contents of ibid FIR police party comprising Subhan Ullah, IHC and other levy officials went to the spot of occurrence, pursuant to receipt of information about an offence of firing, whereby a man and woman have sustained life threatening injuries. On visit to the venue of crime. i.e: house of the complainant namely Farman Ullah, the levy officials spotted the dead body of the female deceased Mst. Laiba Bibi along with injured Muhammad Usman (deceased). It was reported by complainant that the female deceased Mst. Laiba Bibi was his sister-in-law , whose marriage was solemnized with his brother namely Arshad (the accused-petitioner herein) about 10 months back and out of the said wedlock the spouses were not blessed with any issue. On the fateful day, he was enjoying the company of one Ismail, when in the meanwhile, he was called upon by his father to the house. In the house, his uncle Aman Ullah, brother Arshad and father namely Amir Zada were already present. His brother Arshad told the complainant that he had seen his wife Mst. Laiba Bibi in objectional position with his brother Usman, therefore, he intends to kill both of them. To such a proposal, the complainant has shown his unwillingness. His brother Arshad (the petitioner herein) took out his pistol and at first instance made firing upon his brother Usman who at the relevant time was locked in the Baitak and thereafter he went to his residential room and started firing upon his wife Mst. Laiba Bibi. Subsequently, brother of the complainant namely Usman succumbed to his injuries and died. The co-accused namely Amir Zada (father) and Aman Ullah (uncle) have mainly been charged for their alleged role of lalkara/command, allegedly extended to present petitioner qua killing of both the deceased, on the alleged pretext of honour. In addition to the complainant, the occurrence was stated to be witnessed by other inmates of the house and motive behind the occurrence was disclosed to be alleged illicit relations of both the deceased.

3. Learned counsel for petitioner at the very outset agitated the issue of compromise inter-se arrived between the legal heirs of the deceased and that of present accused-petitioner. In this regard, he has also made reference to the compromise deed, placed on file by mother of the female deceased Mst. Fazilat Bibi, whereby she has shown no objection over the release of present petitioner on bail. He also placed on record several unreported judgments of this Court whereby it was expounded that a factum of compromise can even be considered in non-compoundable offences subject to the condition that an aggrieved person i.e. complainant-party does not want to pursue his/her case against the accused-party.

4. The above submissions of the learned counsel for petitioner were vehemently controverted by learned Astt: A.G by contending that the petitioner has been charged for committing murder of two innocent persons on the pretext of honour, therefore, he is not entitled to the concession of bail.

5. Arguments of learned counsel for the petitioner as well as learned Astt: A.G for the State were heard and the record perused with their able assistance.

6. The first and foremost question for consideration before this Court would be as to whether a compromise in an honour killing case can be considered as a circumstance for grant of bail or otherwise?

7. Perusal of record would reveal that two persons, a male and a female have been murdered through firing on the same day and inside the premises of their own house, therefore, keeping in view the contents of FIR and other material on record, the occurrence prima facie appears to be of honour killing, as such, section 311 P.P.C has been added in the FIR, which is reproduced below:-

311. Ta'zir after waiver or compounding of Qisas in Qatl[Islamabad]Amd. Notwithstanding anything contained in section 309 or section 310, where all the walis do not waive or compound the right of qisas, or if the principle of fasad-fil-arz is attracted, the court may, having regard to the facts and circumstances of the case, punish an offender against whom the right of qisas has been waived or compounded with death or imprisonment of life or imprisonment of either description for a term of which may extend to fourteen years as ta'zir: Provided that if the offense has been committed in the name or on the pretext of honour, the punishment shall be imprisonment for life. Though the offence under section 302 P.P.C can be compounded by persons specified in column 3 of section 345(2), Cr.P.C, however, permission of the Court in this regard is mandatory. Today, mother of the female deceased namely Mst. Fazilat Bibi appeared before this Court and stated that she has got no objection on release of the petitioner on bail but that is always subject to a permission of the Court. In such situation, the contention of learned counsel for petitioner with regard to bail of the accused on the basis of compromise alone cannot be accepted, more particularly, when the Court has the discretion of refusing the permission for compounding the offence. Even otherwise, if it be presumed that legal heirs of the deceased, with permission of the trial Court, will patch up the matter with the petitioner through a genuine compromise by waiving of their right of Qisas even then the trial Court has the discretion to proceed with conviction of the accused if satisfied that the principle of fasad-fil-arz is attracted. Definition of fasad-fil-arz can be found in Explanation under section 311 as well as in section 299(ee) of the Pakistan Penal Code which is as under: Explanation.--For the purpose of this section, the expression fasad-fil-arz shall include the past conduct of the offender or whether he has any previous convictions, or the brutal or shocking manner in which the offence has been committed which is outrageous to the public conscience or the offence relates to honour crime, or if the offender is considered a potential danger to the community, or if the offence has been committed in the name or on the pretext of honour. The Explanation divulges that fasad-fil-arz includes honor crime or offence committed in the name or on the pretext of honour as prima facie emerging in the present case. Section 345 (7) puts an embargo on compounding the offence of murder, if committed on the pretext of honour. For ready reference the said provision is reproduced as under; "345 (7). No offence shall be waived or compounded save as provided by this section and section 311 of the Pakistan Penal Code 1860 (Act XLV of 1860)". Honor killing has been considered as a non-compoundable offence in view of the afore-mentioned embargo as observed by this Court in the case of "Tandimand and another v. Qasim Jan and another" reported as 2021 PCr.LJ

469. Hon'ble Supreme Court of Pakistan in case titled "Muhammad Akram Khan v. The State" (PLD 2001 SC 96) has formed the following view qua applicability of fasad-fil-arz in an honour killing cases: - "Legally and morally speaking, nobody has any right nor can anybody be allowed to take law in his own hands to take the life of anybody in the name of "Ghairat". Neither the law of the land nor religion permits so-called honour killing which amounts to murder (Qatl-i Amd) simpliciter. Such iniquitous and vile act is violative of fundamental right as enshrined in Article 9 of the Constitution of Islamic Republic of Pakistan which provides that no person would be deprived of life or liberty except in accordance with law and any custom or usage in that respect is void under Article 8(1) of the Constitution." Further reliance in this respect may also be placed on an unreported judgment of this Court, rendered in case titled "Masood Shah v. The State and others" decided on 08.11.2024 (Cr.M. B.A. No. 688-M/2024).

8. Since, the discretion still lies with the Court to allow or refuse the compromise and if the compromise is allowed even then the trial Court may proceed with conviction of the petitioner if the prosecution succeeds in establishing his guilt, therefore, in the above stated scenario of the present case, the submission of learned counsel for the petitioner for bail of the petitioner on the ground of compromise is turned down.

9. Even otherwise, learned counsel for the petitioner was specifically confronted with the fact to explain the status of major legal heirs of the male deceased, out of them, one is real father of the accused-petitioner and that of male deceased Usman, whereas the other nominated accused namely Aman Ullah is uncle of the accused-party, therefore, in such scenario, affirmation of the compromise on their behalf would have some value or worth in the eyes of law or otherwise. The learned counsel for the petitioner though argued the case at a substantial length, however, he could not satisfy the judicial conscience of the Court with regard to status of major legal heirs of the male deceased to effect a compromise in an honour killing case, whereby two innocent individuals have lost their lives, on the alleged pretext of honour.

10. Apart from above, the present accused-petitioner has specifically been charged for committing the murder of his own wife and brother inside the premises of their house. Complainant of the present case is nobody else but real brother of the male deceased Usman and that of present petitioner, therefore, the possibility of substitution is next to impossible. Medico-legal/post mortem reports of both the deceased are adamant of the fact that they have received multiple firearm injuries on different parts of their bodies. There was also a recovery of weapon of offence i.e. a .30 bore pistol, on pointation of the present accused-petitioner along with a positive FSL report, whereby it was opined that the five crime empties marked as C 1 to C5 were fired from one and the same weapon, therefore, it prima facie seems that it was the job of one assailant, therefore, on the basis of tentative assessment of the record, accused-petitioner is prima facie connected with the commission of an offence which falls within the prohibitory clause of section 497 Cr.P.C, as such, he is not entitled to the concession of bail, even on merits.

11. In light of the above discussion, the instant petition being meritless stands dismissed. JK/65/P Petition dismissed.