Yaseen Vs The State and 02 others

JUDGMENT SHEET

PESHAWAR HIGH COURT PESHAWAR

(Judicial Department)

Cr. M (B.A) No. 2655-P/2026.

Yaseen..............................................Petitioner Vs.

The State & 02 others....................Respondents Present: Mr. Faraz Khan, advocate for the petitioner.

Ms. Ifra Said Khattak, AAG for the State.

Complainant in person.

Date of hearing: 09.09.2026.

ORDER

MUHAMMAD IJAZ KHAN, J. This order is

directed to dispose of an application filed by the petitioner Yaseen s/o Qalam Shah for grant of post arrest bail in case FIR No. 55 dated: 24.07.2026, registered under sections 302, 311 PPC, at Police Station, Ambar, District Mohmand, wherein, he is charged for the murder of his stepmother namely Mst.

Tamana and Asmat Ullah. The motive behind the occurrence was stated to be an illicit relationship of both the deceased. Initially, the present petitioner applied for post-arrest bail to the Court of learned Addl: Sessions Judge, Mohmand, however, the same

relief was declined to him vide order dated 12.08.2026, hence, this petition.

2.Arguments of learned counsel for petitioner, learned AAG appearing on behalf of State were heard in considerable detail and record perused with their able assistance.

3.The very contents of the crime report would show that the local SHO who has also acted as complainant has got information regarding the murder of two deceased namely Mst. Tamanna and Asmat Ullah, so he rushed to the spot where he was informed that they have been done to death by the accused/petitioner namely Yaseen on the pretext of honor. The record would show that the present petitioner is the stepson of one of the deceased namely Mst. Tamanna. The record would also show that when the present petitioner was arrested, he made a clean breast confession before the learned Judicial Magistrate regarding the murder of both the deceased and then on his pointation a 30 bore pistol was also recovered. When the aforesaid pistol along with empties were sent to the FSL and the report thereof would show that they were fired from one and the same weapon, which is in line with the prosecution version. In the given facts and circumstances, even in

the absence of any ocular account of the instant occurrence, the prosecution has collected substantial circumstantial evidence, which prima facie connect the accused/petitioner with the commission of offence.

Furthermore, sections of law for which the present accused-petitioner is charged, also falls within the prohibitory clause of section 497 Cr.PC.

4.During the course of arguments, learned counsel for the petitioner stated that three (03) LRs of both the deceased are before the Court and stated that they have compromised the matter with the petitioner and as such they have no objection over the release of accused/petitioner, however as reflects from the contents of FIR as well as other material collected by the prosecution including confession of the petitioner would show that two persons were done to death on the pretext of honor killing and as such, section 311 PPC prime facie attracts to the case of petitioner. It would be relevant to mention here that compounding of offence of Qatla-e-amad is regulated by section 309 and section 310 of The Pakistan Penal Code. The former deals with the compounding of offence of Qatl- e-amad without compensation whereas, the later (section 310 PPC) deals with compounding of Qatla-e- amad on acceptance of badal-e-sulah, however in

sub-section (1) of section 309, a proviso was inserted through Act No. XLIII of 2016 to the effect that where the principle of fasad-fil-arz is attracted, the waiver of qisas shall be subject to the provision of section 311 PPC. Similarly, a proviso was also inserted in sub- section (1) of section 310 PPC, vide Act No. XLIII of 2016 to the effect that, where the principle of fasad-fil- arz is attracted, compounding of the right of Qisas shall be subject to the provision of section 311 PPC.

Similarly, the offences find mentioned in Sub-section

(2)of section 345 Cr.PC are compoundable at the instance of the persons who find mentioned in column No. 3 but in the case of qatle-e-amad in column No.3 through an Act No. XLIII of 2016, , a condition has been imposed that qatle-e-amad could be waived by the heirs of the victim subject to the provision of section 311 PPC. Section 311 PPC being relevant is reproduced below:

“311. Ta'zir after waiver or compounding of Qisas in Qatt-i-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.”

As stated herein above, though the offence of Qatal-e-amad as punishable under section 302 PPC is compoundable at the instance of the person mentioned in column No. 3 of sub-section (2) of section 345 Cr.PC, however such right of the heir has been restricted in a case where provision of section 311 PPC is attracted and thus, even if the LRs have patched up the matter with the petitioner, the Court has the discretion to punish the accused, if the Trial Court is satisfied that the elements of fasad-fil-arz do attract to the case of an accused person. The definition of fasad- fil-arz as find mentioned in the explanation under section 311 as well as section 299 (ee) of the Pakistan Penal Code, 1860, which reads 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 aforesaid explanation would show that the phenomena of fasad-fil-arz could be inferred by keeping in view the past conduct of the offender including his previous conviction or the brutal or shocking manner in which the offence was committed or where the offence relates to honor crime or if the offence has been committed in the name or on the pretext of honour and as such, if the elements of fasad- fil-arz do attract then it put a bar on compounding of the offence of murder, if the same is committed on the pretext of honor and in this regard Sub-section (7) of section 345 being relevant is also reproduced:

“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).”

In view of the aforesaid statutory bar, this Court is not inclined to entertain the plea of the petitioner to release the petitioner on bail on the ground of compromise as in this case too, two persons have been done to death on the pretext of honor. Under identical circumstances, where a female was done to death on the pretext of honor killing, and the LRs of the female had patched up the matter with the accused, however,

this court in a case1 did not accept the compromise keeping in view the bar as contained under section 309, 310, 311, and sub-section (2) of section 345 read with the bar as contained in sub-section (7) of section

5.The record further indicates that challan in the case has already been put in Court, the charge has been framed and the evidence of the prosecution is in progress, therefore, recording of any further findings may prejudice the case of either party during the course of trial. Even otherwise, it is settled since long that in a murder case when the trial is about to commence or same is in progress, then grant of bail and cancellation of bail be discouraged. In the case2, Hon’ble Supreme Court has held that in a murder case when the trial is about to commence or same is in progress then grant of bail and its cancellation should not be encouraged so as to avoid any discussion or remarks on merits of the case. Similarly, in case3, the Apex Court has held that the Court should not grant or cancel bail when the trial is in progress.

6.In view of the above, the instant bail petition is dismissed, however, the learned trial court is directed “Tandimand Vs. Qasim Jan”, reported as 2021 PCr.LJ 469. 2 “Muhammad Akram vs. Zahid Iqbal & others” reported as 2008

SCMR 1715

“Rehmat Ullah v/s The State & another” reported as 2011 SCMR

conclude the trial of the present petitioner within four

(04)months.

7.Observations recorded hereinabove are purely tentative in nature and should in no way prejudice an independent mind of learned trial Court during the course of trial.

Announced.

JUDGE

(S.B) Hon’ble Mr. Justice Muhammad Ijaz Khan, J (Sher Hassan)