Naib Gul Vs The State & 03 others

JUDGMENT S}MET

IN THE PESHAWAR IIIGH COURT,

BANNUBENCII

(Judicial Department)

Cr: Misc; BA No. 82-B 12026

Naib Gul.

V.

The State & 03 others.

JADGMENT

Date of hearing: 30.03.2026.

For petitioner: Mr. Inamullah Niazi, advocate.

For the State: Mr. Muhammad Asghar Khan Ahmadzai, Addl: A.G.

For respondent: Nemo. (Despile Service).

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SABIT ALLAH KHAN.I-

l. The petitioner, namely Naib Gul, seeks the concession of post-arrest bail in case FIR No. 65 dated20.09.2025, registered under Sections 302 and 311 of the Pakistan Penal Code at Police Station Dossali, District North Waziristan. Earlier, the petitioner approached the learned Additional Sessions Judge-I, North Waziristan at Bannu for the grant of similar relief; however, his request was declined vide order dated 02.02.2026, while his pre-arrest bail had already been recalled on 03.01.2026.

2.Briefly stated, the prosecution case, as reflected in the FI& is that on 20.09.2025, information was received by the police through official channels, whereupon the complainant, namely Rafi Ullah, SHO, proceeded to the place of occlurence and found the dead bodies ofa man and a woman lying at the spot with firearm injuries. During preliminary inq.r,ry at the scene, it transpired that the present petitioner, Naib Gul, had allegedly committed the murder of both the deceased persons. The occurrence is stated to have taken place in the background of so-called honour ("ghairaf'), as the accused allegedly suspected the deceased of having illicit relations. Consequently, considering the said information and observations at the spot, the instant FIR was registered against the petitioner.

3.Arguments advanced by the learned counsel for the petitioner and the leamed Addl: Advocate General for the State were heard at length. Despite service, none appeared on behalf ofthe deceased.

4.I have given my anxious consideration to the arguments advanced by the leamed counsel for the parties and have gone through the available record.

5.A tentative assessment of the material available on record reveals that the petitioner stands

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nominated in a case involving the murder of two persons, namely Mst. Afghana Bibi and Shahid Gul, allegedly committed in the name of so-called honour.

The nature of the accusation, thus, is not only grave but also carries the prmishment of death or imprisonment for life, attracting the prohibitory clause of Section 497 Cr.P.C.

6.It is noteworthy that the petitioner is not a stranger to the occurrence; rather, being the father of one of the deceased, the occurrence is alleged to have taken place within the precincts of his own house. In such circumstances, the burden lies heavily upon him to explain the unnatural death occurring within his domain, a responsibility which, at this stage, appears not to have been satisfactorily discharged.

7.It is also pertinent to observe that the petitioner is charged not only under Section 302 P.P.C. but also under Section 311 P.P.C., which independently empowers the Court to proceed against an offender on the principle of fasad-fi.1-arz, irespective of any compromise or the stance of the legal heirs. Thus, in such cases, the question of non-contestation or willingness of the legal heirs loses its signifigance at the bail stage.

E. The record further indicates that the prosecution version is supported by the statements of the legal heirs of both the deceased, recorded under Section 161 Cr.P.C., wherein the present petitioner has been specifically implicated in the commission of the offence. At this stage, such statements cannot be brushed aside, particularly when they provide a prima facie nexus of the petitioner with the occrrrence.

9.The pleas raised by the leamed counsel for the petitioner, including false implication, delay in lodging ofthe FIR, and absence ofrecovery from the personal possession of the petitioner, are matters requiring deeper appreciation of evidence, which cannot be undertaken at this stage. Even otherwise, the record reflects that incriminating articles, including blood-stained sand secured from the place where deceased Shatrid Gul was found and blood secured through cotton from the place of deceased Mst. Afghana Bibi, along with three crime empties of 9 mm, have been taken into possession. As per the report of the Forensic Science Laboratory, the said crime empties have been fired from one and the same weapon. Such material, prima facie, lends corroboration to the prosecution version and connects

the occurrence with the use of a firearm, thus not bringing the case within the ambit of further inquiry.

10.A tentative assessment of the record in the present case reveals that the petitioner is specifically implicated in a double murder committed in the name of so-called honour, supported by statements under Section 16l Cr.P.C. and corroborative forensic evidence, thereby attracting the prohibitory clause of Section 497 Cr.P.C; the pleas raised by the defence, including false implication, delay, and absence of recovery from petitioner, call for deeper appreciation of evidence which is not permissible at the bail stage, and no element of further inqury is made out as the material on record provides reasonable grounds to believe the petitioner's involvement.

11.As regards the contention advanced by leamed counsel for the petitioner that the mother and real brother of the deceased, Shahid Gul, are unwilling to pursue any claim, complaint, or legal proceedings against the accused, it is pertinent to observe that the Court remains cognizant of an unfortunate and ignominious practice that gained prevalence in society, particularly following the promulgation of the Qisas and Diyat Ordinance, 2000. In numerous instances, perpetrators of offences committed under

the pretext of honour----often involving the killing of female relatives such as wives, mothers, daughters, or sisters-were able to evade punishment by securing pardon from the legal heirs (walis). In response, the legislature enacted amendments through the Criminal Law (Amendment) Act, 2004 (Act I of 2005), introducing the concept of offences committed in the name or pretext of honour. Subsequently, clause (c) of section 302, P.P.C., was further amended and substituted by the Criminal Law (Amendment) (Offences in the Name or on Pretext of Honour) Act, 2016, as follows: -

3.Amendment of section 302, Act XLV of 1860.- In the Penal Code, in section 302, in clause (c), for the full stop at the end, a colon shall be substituted and thereafter the following proviso shall be added, namely:

"Provided that nothing in this clause apply to the offence of Qatl-i-Amd if committed in the name or on the pretext of honour and the same shall fall within the ambit of clause (a) or clause (b), as the case may be. "

12.In view of the above hinted amendment, an offence committed in the name or on the pretext of honour was excluded from the definition of 'qatl-i- amd'as contained in Section 302 Clause (c) of P.P.C., as the phase 'in the name or on the pretext of honour" inserted in the frst proviso to Section 302(c) of P.P.C. clearly indicates that the murder committed in the name or on the pretext of honour had to be

calculated as a murder committed with premeditation in the background ofhonour. Reliance in this regard may safely be placed on the case reported as "Muhammad Qasim v. The State" (PLD 2018 SC 840). Similarly, c.ertain amendments were also made in Section 345 of Cr.P.C., infoducing sub-section 2- A, and the same reads as under:-

"(2-A) Where an offence under Chapter XVI of the Pakistan Penal Code, 1860 (Act XLV of 1860), has been committed in the name or on the pretext of karo kari, siyah kari or similar other customs or practices, such offence may be waived or compound subject to such conditions as the Court may deem fit to impose with the consent of the parties having regard to the facts and circumstances ofthe case. "

13.Similarly, in terms of subsection (7) of section 345, Cr.P.C., no of[ence is amenable to waiver or compounding except in the manner expressly provided therein and under section 3ll, P.P.C. It is further of significance that, through the Criminal Law (Amendment) (Offences in the Name or on Pretext of Honour) Act,20l6, section 299,P.P.C. was amended by insertion of clause (ee), whereby an offence committed in the name or on the pretext of honour has been brought within the arrtbit of fasad-fi1-arz.

Under section 3ll, P.P.C., where the principle of fasad-fi|-arz is attracted, the Court, having due regard to the facts and circumstances of the case, may punish an offender--despite waiver or compounding

Lr of the right of qisas-with death, imprisonment for life, or imprisonment of either description for a term which may extend to fourteen years as ta'zir. The proviso appended thereto further mandates that where the offence has been committed in the name or on the pretext of honour, the punishment shall be imprisonment for life.

14.Moreover, the applicability of Section 311 P.P.C. (fasad-fi1-arz) turther diminishes the significance of any compromise, thus disentitling the petitioner from the concession of bail. Reliance is olaced on Bilal Sikandar v. The State and another {2025 YLR 152(Lahore)}, wherein it was held as under:-

"6. Submission made by learned counsel for petitioner that legal heirs of deceased who happened to be the parents of deceased, have forgiven the accused/ petitioner and recorded their statements qua compounding the offence, therefore, accused/petitioner is entitled to be released on bail on the basis of compromise, is of little avail as in view of the amendments as made in section 299(ee), section 302(c) and section i11, P.P.C. read with proviso to section 345(2-A) and 345 (7) of CI.P.C, a convict in an honour killing case, still can face sentence of imprisonment for life even if legal heirs of a viclim have settled the matter by way of compromise and pardoned the convict. Thetefore, the accused/petitioner is not entitled lo be released on bail on the basis of any statement made by lhe legal heirs of the deceased whereby they have compounded the offence as in view of provisions of Sections 345(2-A) and 345(7) of the Cr.P.C., no offence shall be waived or compounded save as provided by the provisions of section 3l I, P.P.C."

smissed nlbninie.

15.In view of the above discussion, this bail application, being devoid of merit, ls hereby dismissed. The above observations are tentative in nature and shall not prejudice the case of either party i lastlcc Abdal Fayaz at trial.

Announced.

30.03.2026. -Sd-

Imranullah PS' 4 Judge rUDGE

(S.B)

Hon'ble Mr. Justice Sabll Ullah Khan o I 1l

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