Rizwan Vs The State & others

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

D.I.KHAN BENCH

(Judicial Department)

Cr. Misc. (BA) No.374-D/2025 Rizwan VS. The State & others

For petitioner: M/S Saif-ur-Rehman and Daud Jan Advocates

For State: Mr. Inamullah Khan Kundi, Assistant Advocate General.

Date of hearing 26.08.2025

JUDGMENT

INAM ULLAH KHAN, J.- Petitioner, Rizwan son of Taimoor, is seeking bail in case FIR No.05 dated 02.07.2025 registered under section 302, 311 PPC, registered at Police Station Spin Wam, District South Waziristan, as his bail was dismissed by the learned Sessions Judge Tank vide order dated 07.08.2025.

2.The Station House Officer of Police Station Spin Wam, District South Waziristan, on the information of murder proceeded to the place of occurrence where Hafizullah son of Bilal Khan and Sumbal Bibi daughter of Norey were revealed to be slayed by the accused/petitioner and co-accused Said Shah. The

relatives of deceased, present on the spot, did not want to charge the accused persons and also not ready for the autopsy of their cadaver. However, the above referred FIR was registered at the report of SHO.

3.Arguments heard and record gone through.

4.There can be no cavil to the fact that in this case the FIR has been registered by the SHO concerned and none of the legal heirs of either of the deceased stepped forward to report the incident, and even they did not allow to conduct post mortem of the deceased persons.

However, not charging the accused/petitioner or his co- accused by legal heirs of the slayed man and woman in the name of honour and not conducting post-mortem of both the deceased in this case cannot be taken as benefiting aspect for accused persons. Killing of a human being with the consent of his/her legal heirs, can neither be a license for murder nor aloof from the law and even extremely un-Islamic.

5.According to the Holy Quran, murder is the most atrocious act in the society. The Holy Quran says that murdering a person is like murdering the whole of mankind. Al Quran states that:

س ٓ ِءي َل َأهَّوُۥ َمن َٰ َ ْ ِم ْن َأ ْج ِل َذَٰ ِ َِل َن َتبْنَا عَ َ َٰل ب َ ِ ِٓن إ كَتَ َل ه َ ْف ًۢسا ِبغ َِْي ه َ ْف ٍس َأ ْو فَ َسا ٍۢد ِِف أ ْ َْل ْر ِض فََكَه َّ َما كَتَ َل ألنَّ َاس َِجي ًۭعا َو َم ْن َأ ْح َياىَا فََكَه َّ َما ٓ َأ ْح َيا ألنَّ َاس َِجي ًۭعا ۚ َولَ َل ْد َجا ٓ َءْتْ ُ ْم ُر ُسلُنَا بِٱلْ َب ِ ّينَ ٰـ ِت ُ َُّث إ َّن َن ِث ًْۭيإ )23(نن َ ُْف ِ ْ ِّمْنْ ُم ب َ ْعدَ َذَٰ ِ َِل ِِف أ ْ َْل ْر ِض لَ ُم [al-Maida 5:32]

That is why We ordained for the Children of Israel that whoever takes a life—unless as a punishment for murder or mischief in the land—it will be as if they killed all of humanity; and whoever saves a life, it will be as if they saved all of humanity. ˹Although˺ Our messengers already came to them with clear proofs, many of them still transgressed afterwards through the land.

Murder of a man by a man has been denounced in

the Quran:

َو ََل ثَ ْل ُتلُن ۟إ ألنَّ ْف َس أل َّ ِِت َح َّر َم أ َّ َُّلل إ ََّل بِٱلْ َح ّ ِق ۗ َو َمن ُْف ِ ْ كُ ِت َل َم ْظلُن ًۭما فَ َل ْد َج َعلْنَا ِل َن ِل ِ ّي ِوۦ ُسلْ َط ٰـنًۭا فَ ََل ي )33(ِ ِّف ألْ َل ْت ِل ۖ إهَّوُۥ َك َن َم ُنص ًۭنرإ

[al-Isra 17:33]

And do not kill anyone which Allah has forbidden, except for a just cause. And whoever is killed (intentionally with hostility and oppression and not by mistake), We have given his heirs (wali) the authority to demand Qisas, (Law of Equality in punishment) or to forgive, or to take Diyat (blood money). But let him

not exceed limits in the matter of taking life (i.e. he should not kill except the killer only); for he is helped (by the Law).

The Holy Quran further ordains that a person who

commits such a grave offence, particularly against a Muslim, shall face the eternal punishment of Hell.

َو َمن ي َ ْل ُت ْل ُم ْؤ ِمنًۭا ُّم َت َع ِّمدًۭ إ فَ َج َزإ ٓ ُؤ ُهۥ ََجَّنَّ ُ َخ ٰـ ًِۭلإ ِفهيَا َوغَ ِض َب أ َّ َُّلل عَلَ ْي ِو َولَ َع َنوُۥ َو َأعَ َّد ََلُۥ عَ َذ اإًب )93(َع ِظميًۭا [al-Nisa 4:93]

And whoever kills a believer intentionally, their reward will be Hell— where they will stay indefinitely. Allah will be displeased with them, condemn them, and will prepare for them a tremendous punishment.

The Quran provides for retaliation against the

individual who commits a Qisas crime, but also expresses a preference for forgiveness. The Quran says:

ي َ ٰـٓٱَُّيُّ َا أ َّ َِّل َين َءإ َمنُن ۟إ ُن ِت َب عَلَ ْي ُ ُُك ألْ ِل َص ُاص ِِف ۚ ألْ َل ْتَل ۖ ألْ ُح ُّر بِٱلْ ُح ّ ِر َوألْ َع ْبدُ بِٱلْ َع ْب ِد َوأ ْ ُْل ٰهَث بِٱ ْ ُْل ٰهَث وف ِ َش ٌۭء فَٱ ِث ّ َبا ٌۢع بِٱلْ َم ْع ُر ْ َ فَ َم ْن ُع ِف َى ََلُۥ ِم ْن َأ ِخي ِو َو َأ َدإ ٓ ٌء إلَ ْي ِو ًِب ْح َس ٰـ ٍۢن ۗ َذَٰ ِ َِل َْت ِف ٌۭيف ِّمن َّ ِربّ ُْك إب َأ ِل ٌۭي ٌ َو َر َْح ٌۭة ۗ فَ َم ِن أ ْع َتدَ ٰى ب َ ْعدَ َذَٰ ِ َِل فََلُۥ عَ َذ [al-Bqarah 2:178]

O ye who believe! the law of equality is prescribed to you in cases of murder: the free for the free, the slave for the slave, the woman for the woman. But if any

remission is made by the brother of the slain, then grants any reasonable demand, and compensates him with handsome gratitude, this is a concession and a Mercy from your Lord. After this whoever exceeds the limits shall be in grave penalty.

Just as this directive of Qisas has been given to us, it was given to the previous nations of the Prophets.

While referring to the Old Testament, the Quran says:

َو َن َتبْنَا عَلَهيْ ِ ْم ِفهيَا ٓ َأ َّن ألنَّ ْف َس بِٱلنَّ ْف ِس َوألْ َع ْ َْي بِٱلْ َع ْ ِْي َوأ ْ َْل َهف بِٱ ْ َْل ِهف َوأ ْ ُْل ُذ َن بِٱ ْ ُْل ُذ ِن َوأ ِ ّلس َّن بِٱ ِ ّلس ِّن ۚ وح ِك َص ٌۭاص ۚ فَ َمن ث ََصد ََّق ِب ِوۦ فَي َُن َنفَّ َارةٌۭ ََّلُۥ َ َوألْ ُج ُر َ َو َمن ل َّ ْم َ َْي ُُك ِب َما ٓ َأ َنز َل أ َّ َُّلل فَٱُ ۟ولَ ٰـ ٓ ِئ َم ُ ُُه أ َّلظ ٰـ ِل ُم نن

[al-Maidah 5:45]

We ordained therein for them: "Life for life, eye for eye, nose for nose, ear for ear, tooth for tooth, and wounds equal for equal." But if any one remits the retaliation by way of charity, it is an act of atonement for himself. And if any fail to judge by (the light of) what Allah hath revealed, they are (No better than) wrong-doers.

6.The Islam considers murder to be the most heinous crime and the blood of a human being is sacred in Islam.

Islam does not permit parents to kill their child. Prophet Muhammad (SAW) reportedly stated that the first act of Allah on the Day of Judgment would be to punish murderers by making them suffer the torment of Hell.

Prophet Muhammad (SAW) at his last pilgrimage declared that the blood of human being, their property and prestige are as sacred as the city of Haram of Makkah and the day of Arafah.

7.Undoubtedly, the greatest crime known to mankind is murder. It has been punishable under all systems of law since early in the history of mankind and throughout the ages up to the present. There is no doubt that Islam grants the right of Qisas and Diyat, or the option to accept compensation for murder, to the legal heirs of a murdered person. However, this does not mean that legal heirs have the right to order the death of an innocent person under the guise of honour, or to forgive the killer. In this particular case, it is very unfortunate that the parents and other relatives of both the deceased clearly seems to have agreed to the murder of a male and female, therefore, they are also considered to have shared the crime with the accused persons. In this context section 311 PPC is self-contained which reads as under:

311.Tazir after waiver or compounding of right of qisas in qatl-i-amd:- Where all the wali 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 for life or imprisonment of either description for a term which may extend to fourteen years as Ta’zir.

Provided that if the offence has been committed in the name or on the pretext of honour the imprisonment shall not be less than imprisonment for life.

8.The honour killings, associated with the concept of “Izzat” (honour), is also a form of Fasad-fil-Arz as defined under section “299ee” and thereby this offence has been excluded from the Clause (c) of Section 302 PPC, and as referred above, according to Section 311 PPC the Court has a prerogative to award imprisonment for life to a person, being accused of honour killing even though, against whom the right of Qisas has been waived or compounded.

9.Even otherwise killing anyone, regardless of their gender or perceived wrongdoing, is not permitted in the legal system of Pakistan. There should be no special treatment for a killer, even if they try to justify their actions as honour killings. Such acts are a clear indication of ignorance of Islamic principles, Quranic

teachings, and the country”s laws. In Islam, honor killing is not a legitimate form of punishment for any offense. It is actually considered a major sin and goes against Islamic teachings. Taking the life of another human being in the name of honour has no justification, as all human life is sacred in Islam. Despite the existence of specific laws against honour killings, incidents of “kalaali” in Punjab, “karukari” in Sindh, “tortora” in Khyber Pakhtunkhwa and “sayakari” in Baluchistan are common.

The Honourable Supreme Court of Pakistan in Muhammad Ali Mahar”s case1, while dealing with the matter of pre-arrest bail of accused in the case of honour killing, was pleased to hold:

11.The notorious act of honour killing is branded as karo-kari which menace is

cancerous and tumorous to our society,

humanity, and the populace. In fact, this is an act of murder in which a person is killed for his or her actual or perceived immoral deeds and comportments.

Without doubt, the father and other

family members might be annoyed or

Muhammad Ali Mahar and another Vs. The State

(2024 SCMR 1584)

exasperated on knowing about a marriage of choice, but it no way allows them to take the law in their hands for evil designs. Such alleged depraved manners and postures can include marital betrayal, refusal to acquiesce to an arranged marriage, wanting marriage or divorce, perceived flirtatious demeanor, or even rape. Predominantly, honour killing is often an emblem for adultery, but it is exploited in multifarious means of seeming unscrupulous conduct. It is really a sorry state of affairs, rather deeply appalling and deplorable, in a typical segment of society where a conviction persists that when a woman is regarded as "kari", the family members must consider it their vested right to kill her and the co-accused "karo" in order to refurbish and recondition the family honour. However, the research-based statistics demonstrate that the majority of victims of such inhuman and ruthless acts

are women who are killed and the assailants or aggressors are no one else but the male members of the family or community. The motivative strength of honour killing is the self-proclaimed ratiocination that honour killing is indispensable to cleanse dishonour or humiliation. This genre of gender-based violence is not only self-destructive to the humanity and social order but it is regarded as "fasad -fil-arz" which is not only against the norms of civilized culture in the society, but is also a violation of fundamental rights enshrined under the Constitution, and most importantly, it is also a serious defilement and disrespect to the teachings and injunctions of Islam.

10.In the case of Muhammad Akram Khan2, the august Supreme Court of Pakistan was of the view that:

Legally and morally speaking, nobody has any right nor can anybody be allowed to Muhammad Akram Khan Vs. The State (PLD 2001 Supreme Court 96)

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. In this case, the plea of "Ghairat" cannot be deemed to be a mitigating circumstance as the motive was not directly against the deceased.

11.As mentioned above, the post-mortem has not been conducted on the bodies of deceased male and female, but this cannot be a ground for the grant of bail, as in the case of honour killing where all relatives and loved ones of deceased person and lady are on the same page with accused persons. In such a situation it is the duty of State

to ensure the safety of every citizen and uphold their constitutional rights qua Article 9 read with Article 8(1) of the Constitution of Islamic Republic of Pakistan, 1973.

After the amendment in the Pakistan penal code through Criminal Law (Amendment) (Offence in the name or pretext of Honour) Act, 2016, no corresponding amendments have been made in the Qanoon-e-Shahadat Order, 1984, and code of criminal procedure to align the nature and requirement of proof in honour killing cases and to provide special procedure of investigation compatible to the said amendment particularly in cases where all family members are complicit with the perpetrator. Nevertheless, the law of the country is of- course not handicapped when it comes to punishing the murderer in cases where a male or female is killed under the pretext of honour with the consent of his/her heirs.

No mala-fide on the part of complainant or prosecution could have been pointed out to falsely implicate the accused/petitioner and the co-accused in the case of honour killing. Two masoom-ud-dam have undoubtedly been subjected to death in a pre-planned manner and would it be justice that an accused of such a heinous offense be released or granted bail on the sole ground

that the other legal heirs — who are practically accomplices in such a brutal murder — have pardoned the accused or do not press charges, even though this could undermine the foundation of a civilized society?

12.Learned counsel for petitioner contended that the father of deceased male and father of deceased female are before the court and they do not charge anyone, is of no avail to the accused/petitioner for the reason that if parents or heirs of a deceased person approve the murder then their unwillingness to charge accused person attracts the provisions of sections 311 PPC and such a stance involving Fasad-fil-Arz, cannot be accepted by the Court.

Hence, this Court is not inclined to grant concession of bail to the accused/petitioner in this particular case.

13.For the above recorded reasons, the instant petition is having no merit, hence, dismissed

Announced.

(*M/Subhan) Sd/-

JUDGE

(S.B) Hon’ble Mr. Justice Inam Ullah Khan