Hidayat Ullah Vs The State

IN THE PESHAWAR IIIGH COURT,

BA}IIUBENCH

(Judicial Departmentl

Cr.Misc:BA No.425-B of 2023

Hidayat Ullah Vs The State etc

ORDER

Date of hearing 18.09.2023

For petitioner: Muhammad Rashid Khan Dhirma Khel Advocate

For complainant: In person For State: IVk. Umer Qayyum Khan, Asstt. A.G.

****,k** Dr. Khurshid lqbal, J.- Petitioner (Hidayat Ullah) seeks his release on bail in case FIR No.369, dated 20.07 .2023, under section 302 PPC of Police Station Mira Khel, District Bannu.

2.Facts of the case in brief are that on % 20.07 .2023, at about 07:30 hours, complainant Naik Rehman took the dead body of his sister-inJaw Mst. Zainab Bibi (wife of his brother / petitioner-accused Hidayat Ullah) to the DHQ Hospital, Bannu. He reported that on the eventful day, he, along with other inmates, was present in his house. The petitioner was inside the room, while his wife was present in the courtyard. Meanwhile, the former came out of the room and fired at the latter with a .30 bore pistol. As a result, she got seriously injured

and died on the spot. Motive the complainant unveiled was that the deceased was having illicit relations with a stranger.

3.Arguments of learned counsel for the petitioner as well as that of leamed A.A.G. for the State heard and record perused.

4.Under the criminal administration ofjustice, it is a well settled exposition of law that the Court must not go deep into the merits of the matter while considering an application for bail. All that needs to be done at the bail stage is to see the existence of a prima facie case against an accused person. While reaching at the said conclusion, the Court is required to have a tentative look at the material placed before it by the prosecution and to form an opinion whether it constitute 'reasonable grounds' for believing that the accused has been guilty of the offence alleged against him or otherwise. If the opinion is formed in the affirmative then obviously the accused shall not be released on bail as contemplated under sub- section (l) of section 497 Cr.P.C. But if contrary is the case, where sufficient grounds for further inquiry into his guilt are bome out from the record then the bail shall be allowed in terms of sub-section (2) of section 497 Cr.P.C. Viewing the record in this perspective, this Court finds that the petitioner has been directly charged for committing the murder of his wife in his house on suspicion of her being in illicit relationship with a stranger. This shows that the murder has been committed in the name of honour. Leamed counsel for the petitioner submitted that the offence is one of sudden provocation and

since section 3l I PPC has not been applied in the FIR, therefore, the offence cannot be stretched to one of honour killing. However, the Court is not persuaded for reasons more than one. Firstly, the FIR shows that the deceased was present in the courtyard, while the petitioner, in his room. Nothing is available on the record to suggest that the deceased had provoked the petitioner in any manner which gave him a cue to commit the offence. Secondly, the FIR demonstrably shows that the deceased was done to death because of her alleged illicit relations. This prima facie shows that the murder has been committed with premeditation on the pretext of honour. Legally, no one can be allowed to kill whom he likes on one pretext or the other by taking the law in his hands instead of resorting to the legal recourse.

5.It is highly unfortunate that in this country, there have been gruesome murders of women every year on the pretext of honour (e.9. 478 in 2021. Human Rights Commission of Pakistan. "State of Human Rights", Annual Report, 2022, p l8). The Legislature being cognizant of the deteriorating situation introduced The Criminal Law (Amendment) (Offences in the Name or Pretext of Honour) Act, 2016, whereby, amendments were brought about in order to maintain law and order. Those include the doctrine of fasad-fi1-arz, providing explicit mention of the death penalty and life imprisonment for honour killings and imprisonment for life for the convict even if he has been pardoned by the Wali or family members of the

victim. The higher courts of the country have also been able to actively consider such cases in a purposeful manner. At times, the killing of a woman on the pretext of honour was held un-Islamic, unconstitutional and an offence against the State and society. Reference may, for example, be made to Khadim Hussain and another v. The State (PLD 2012 Balochistan 179), wherein it was held that: I have given my anxious consideration to the arguments of the respective parties and perused the record. I have noticed in a number of cases that the killing of innocent wife, sister and other female relatives, on the allegation of 'siyahkari' has become a routine practice, rather a fashion, and it is a high time to discourage such kind of unwarranted and shocking practice, resulting in double murder in the name of so- called honour killing. I am not impressed by the contention of leamed counsel for the applicants that according to the prosecution's own showing, tlle occurrence is the result % of'siyahkari', as such the applicants were liable to be enlarged on bail. It is true that people do not swallow such kind insult, touching the honour of their womenfolk and usually commit murder of alleged 'siyahkar' in order to vindicate and rehabilitate the family honour, but it is equally true that no one can be granted licence to take law of the land in his own hands and start executing the culprits himself instead of taking them to the Courts of law. The murder based on 'Ghairat' does not fumish a valid ground for bail. Killins of innocent people, especially women on the f'siyahkari' is absolutely unlslamic. illeeal and unconstitutional. It is worth-

mentioning that the believers of Islam are not even allowed to divorce them, without establishing their accusation. We profess our love for Islam, but ignore clear Qur'anic injunctions regarding the rights of women. The Holy Qur'an in Sura XXIV in Sura (NUUR) Verses 4 says:

And those who launch a charge against chaste women and produce not four witnesses, (To support their allegation)....Flag them with eight stripes; and reject their evidence even after;

for, such men are wicked transgressors.

6.Contention of leamed counsel for the petitioner for the grant of bail on the basis of no objection raised by the mother ofthe deceased or the affidavit, dated31.07.2023, is repelled. Firstly, it in essence means that a compromise has been effected which is incomplete. Secondly, as stated above, the offence prima facie appears to have been committed on the pretext of honour which has not been declared as compoundable under section 345 Cr.PC. Even the factum of compromise per se does not entitle an accused person to bail in such cases. The reason simply is that the offence is against the State and society. According to sub-section (2-A) in section 345 Cr.P.C as inserted through the Criminal Law (Amendment) Act, 2004 (Act I of 2005), if a murder is committed on the pretext of honour, compromise may be waived or compounded 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 of the case. In order

to discourage such like offences, a legislative strictness was brought about in the shape of insertion of a proviso in section 302 ppc. It mandates that where the principle of fasad-fiI-arz is attracted then only clause (a) or clause (b) ofsection 302 PPC shall apply . In the case of Muhammad Akram Khan v. The State (pLD 2001 SC 96), the Supreme Court of Pakistan held that:

Legally and morally speaking, nobody has any right nor can anybody be allowed to take law in his own hand to take the life of anybody in the name of "Ghairat". Neither the law of the land or religion permits so- called honour killing which amounts to murder (Qatl-i - Amd) simplicitor. 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(l) of the Constitution.

7.It Ghulam Yasin v. State (2017 PLD 103 Lahore), an accused was alleged to have committed murder on the pretext of honour. He sought his release on bail for the reason that the legal heirs of the deceased had forgiven him and also effected compromise. The Court declined him bail for the reason that section 345(2-A) Cr.P.C provided that in

case of honour killing, compromise could be allowed only subject to certain conditions and approval of the trial court wuls also mandatory in that regard. Other cases worth referral are of Khadim Hussain v. State Q0l2 PLII 179 Quetta\, Aziz Ullah v. State (2016 PCrLJ 681 Peshawar) and Zaib Alam v. State (2016 PCrLJ 993).

8.Coming to the facts of the case in hand, it appears that the petitioner has been directly charged.

The report has been lodged with reasonable promptitude in view of the distance between the place of the occurrence and the hospital coupled with the nature of the offence where delay of about an hour or two in lodging of report is a natural phenomenon. The recovery of bloodstained earth, crime empties from the place of the occurrence and the medical evidence lend full support, albeit tentatively, to the prosecution version. It further transpires that the petitioner was arrested on the same day. The weapon of offence was also recovered from his direct possession. The same was sent to the FSL whose report positively manifests that the crime empties recovered from the spot were fired from the pistol recovered from the petitioner. The offence is heinous and entails punishment which is covered by the prohibition contained in section 497 Cr.P.C. Though, the complainant being the real brother of the petitioner has resiled from the story of the FIR, stating that he has not lodged the report. However, at this stage, it is prima facie clear that it was he who reported the matter. The record is also silent regarding any application moved by the

complainant before any forum for the denial of the factum of the report having been made by him or his thumb impression on the murasila. Moreover, the complainant has yet to face the response of the prosecution during the trial. At the moment, the mere denial cannot outrightly brush aside the existence of reasonable grounds which otherwise prima facie link the petitioner with the commission ofthe offence.

9.For the aforesaid reasons, this Court finds no merit in this petition. It is, therefore, dismissed. However, it is worth mentioning that the observations made hereinabove are purely tentative in nature. These shall have no bearing on the merits of the case during the trial. The prosecution shall submit challan within one month positively. Anno unced

(Ghafoor Zamen)

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(S.B) Hon'ble Mr. Justice Dr' Khurshid Iqbrl