P L D 2012 Balochistan 179
Before Muhammad Hashim Khan Kakar, J
KHADIM HUSSAIN and another ---Applicants
Versus
THE STATE ---Respondent
Criminal Miscellaneous Application (Bail) No. 143 of 2012, decided on 24th April, 2012.
(a) Criminal Procedure Code (V of 1898) ---
----Ss. 497 & 345(2) ---Penal Code (XLV of 1860), Ss. 302, 34, 311 & 338 -E---Qatl-e-amd,
common intention ---Bail, refusal of ---Murder on the pretext of 'siyahkari' ---Waiver or
compounding of offence ---Scope ---Compromise effected outside the court ---Scope ---
Contentions of the accused persons were that parties had compounded the offence and
forgiven each other in the name of Allah, and that compromise had been effe cted, and as such
court below was not justified in refusing bail to the accused persons ---Validity ---No one
could be granted the licence to take the law in his own hands and start executing culprits
instead of taking them to the courts of law ---Killing of women on the pretext of 'siyahkari',
was un -Islamic, illegal, unconstitutional and an offence against the State and the society ---
Murder based on honour (ghairat) did not furnish a valid ground for grant of bail ---Offences
committed in the name or on the p retext of 'siyahkari' and similar other customs or practices
may be waived or compounded subject to such conditions as the court deemed fit to impose
with the consent of the parties having regard to the facts and circumstances of the case ---Such
offences w ere within the circumference of waiver or composition ---Compromise effected
outside the court was of no value unless sanctioned by a court as envisaged in column No.3
of S.345(2) Cr.P.C, and such sanction was to be based on sound and reasonable discretion
and was not to be accorded as a matter of routine ---Court had to decide, after taking into
consideration all the attending circumstances of the case, whether in the given situation it
should or should not grant permission for compounding the offence ---Cour ts were obliged to
decide, whether the case fell within the provisions of S.311, P.P.C and whether the offender
despite the compromise, deserved to be punished by way of ta'zir ---Accused persons were
involved in the commission of the murder of two innocent persons on the pretext of
'siyahkari', while taking the law in their own hands, therefore, they did not qualify for the
grant of bail ---Offence could not be compounded automatically by the legal heirs, but it was
always through the court, which could decl ine permission to compromise the offence by the
legal heirs of the victim(s), keeping in view the circumstances of the case ---Accused persons
had been charged in a promptly lodged F.I.R. for effecting firing and causing death of two
persons, and remained a bsconders for a sufficient period of time ---Bail was refused to
accused persons, in circumstances.
Holy Qur'an in Sura XXIV (NUUR) Verses 4 and Hadith 837 Book 48 (Sahih Bukhari) ref.
Muhammad Akram Khan v. The State PLD 2001 SC 96 rel.
(b) Penal Code (XLV of 1860) ---
----S. 302 ---Constitution of Pakistan, Arts. 8(1) & 9 ---Honour killing ---Violative of
Fundamental Rights ---Nobody had any right nor could anybody be allowed to take law in his
own hands to take the life of anybody in the name of "Gh airat" ---Neither the law nor the
religion permitted the so called honour killing which amounted to "Qatl -e-amd" simpliciter ---
Such iniquitous and vile act was violative of the Fundamental Rights as enshrined in Art.9 of
the Constitution which provided that no person would be deprived of life or liberty except in
accordance with law and any custom or usage in that respect was void under Art.8(1) of the
Constitution.
Muhammad Akram Khan v. The State PLD 2001 SC 96 rel.
Muhammad Qahir Shah for Applicant.
Musleh -ud-Din for the State.
Date of hearing: 18th April, 2012.
ORDER
MUHAMMAD HASHIM KHAN KAKAR, J. ---By this order, I propose to dispose of
Criminal Bail Application No.143 of 2012, filed on behalf of applicants, Khadim Hussain and
Ghulam Sarwar , in a case Crime No.75 of 2006, under Section 302 read with section 34 of
the P.P.C., registered at Industrial Area Police Station, Quetta. The bail plea of the applicants
was declined by the Additional Session Judge -IV, Quetta, vide order dated 6th April 2012,
with the observations that during course of proceedings carried out under section 512 of the
Cr.P.C., the prosecution witnesses have implicated the applicants with the commission of the
offence, allegedly, committed on the ground of siyahkari and th e offence, with which the
applicants have been charged, is not compoundable.
2. The prosecution story, as unfolded in the F.I.R., is that on 19th July, 2006 at about 7 -
30 p.m., complainant Zarak Khan appeared at Industrial Area Police Station, Quetta and
lodged F.I.R. No.75 of 2006, alleging therein that on the said date at about 7 -00 p.m., one
Mureed Khan came to his house and informed him about the murder of his son Juma Khan
and one Mst. Bakhtawar by the applicants, Khadim Hussain and Ghulam Sarwar, in their
house situated at Killi Khaliq Abad, Quetta. Consequently, the aforesaid F.I.R. was lodged.
3. I have heard Mr. Muhammad Qahir Shah, learned counsel for the applicants and Mr.
Musleh -ud-Din, learned counsel for the State.
4. Mr. Muhammad Qahir S hah, learned counsel for the applicants, contended that the
rival parties have compounded the offence and forgiven each other in the name of Almighty
Allah. He further stated that in this behalf compromise had been effected, which was
submitted before the trial Court along with bail application. According to him, the provisions
of section 345 of the Cr.P.C. and of Schedule attached therewith, offence under section 302
of the P.P.C. is compoundable by the legal heirs of the deceased and offences falling unde r
sections 324 to 338 of the P.P.C. by the victims. Likewise, in section 338 -E of the P.P.C. and
the procedure laid down in Chapter XVI of the Cr.P.C, sections 299 to 338 -H of the P.P.C.
introduced by Second Amendment Act (II of 1997), wherein they pa rdoned to the
accused by way of 'Uffuf' ( ) to waive the right of 'qisas' and 'diyat' are the Islamic
Provisions of Law and to compound the offence under sections 309 and 310 of the P.P.C. is
only the right of the complainant or the legal heir s of the deceased by waiving the right of
'qisas' and 'diyat', as such, after compromise effected between the parities, the Additional
Session Judge was not justified to refuse bail on the ground that the offence committed on the
pretext of 'Ghairat' is no t compoundable. He further contended that the applicants were
entitled for grant of bail, as according to the prosecution's own showing, the occurrence was
the result of 'siyahkari'.
5. Conversely, the application has been opposed by Mr. Musleh -ud-Din, A dvocate,
appearing of behalf of the Prosecutor General, Balochistan, and argued that the offence
committed by the applicants is not compoundable. He further contended that the cases, falling
under section 345(2) of the Cr.P.C., can only be compounded when prosecution regarding
those cases is pending before a competent trial Court and any compromise outside the Court
is of no value, unless it has been sanctioned by a Court as envisaged in column 3 of section
345(2) of the Cr.P.C. He lastly contended that the applicants have committed double murder
on the so -called pretext of 'siyahkari' just to satisfy their brutal instinct and taken the law in
their own hands.
6. I have given my anxious consideration to the arguments of the respective parties and
perused t he 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 unwarra nted and shocking
practice, resulting in double murder in the name of so -called honour killing. I am not
impressed by the contention of learned counsel for the applicants that according to the
prosecution's own showing, the occurrence is the result of 'siy ahkari', as such the applicants
were liable to be enlarged on bail. It is true that people do not swallow such kind of 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
furnish a valid ground for bail. Killing of innocent people, especially women on the pretext of
'siyahkari', is absolutely un -Islamic, illegal and unconstitutional. It is worth mentioning that
the believers of Islam are not even allowed to divorce them, without establishi ng 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 w itnesses, (To
support their allegation), --- Flog them with eight stripes; and reject their evidence even after:
for such men are wicked transgressors; ---"
In this regard, it would also be advantageous to reproduce Hadith 837 Book 48 (Sahih
Bukhari), whic h speaks as under: --
"Narrated Ibn Abbas: Hilal bin Umaiya accused his wife before the Prophet of committing
illegal sexual intercourse with Sharik bin Sahma. The Prophet said, "Produce a proof or else
you would get the legal punishment (by being lashed) on your back" Hilal Said, "O Allah's
Apostle! If any one of us saw another man over his wife, would he go to search for a proof"
The Prophet went on saying, "Produce a proof or else you would get the legal punishment (by
being lashed) on your back " The P rophet then mentioned the narration of Lian (as in the
Holy Book). (Surat -al-Nur.. 24),"
Crime of siyahkari is increasing and innocent girls are being killed under the worse tradition
of siyahkari or karokari. False and frivolous allegations are levelled against the innocent girls
and they are never heard. They are being treated as cattle, which is also violative of the
fundamental rights, enshrined in the Constitution. In order to prevent such crimes, Courts of
law should take judicial notice, while tryi ng such heinous crimes. My view got supports from
the judgment of Hon'ble Supreme Court of Pakistan in a case of "Muhammad Akram Khan
v. The State", PLD 2001 SC 96, which speaks as under:
"Legally and morally speaking, no body has any right nor can any body 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 v iolative 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 und er Article 8(1) of the Constitution."
7. Adverting to the contention of learned counsel for the applicants regarding
compromise effected between the rival parties outside the Court, the provisions of law on
the subject holding the field section 345(2) of the Cr.P.C. and section 338 -E of the P.P.C. It
is better and appropriate to reproduce both the sections to resolve the controversy:
"338 -E. Waiver or compounding of offence. ---(1) Subject to the provisions of this Chapter
and section 345 of the Code of Criminal Procedure, 1898 (V of 1898), all offences under this
Chapter may be waived or compounded and the provisions of sections 309 and 310 shall,
mutatis mutandis, apply to the waiver or compounding of such offences:
Provided that, where an of fence has been waived or compounded, the Court may, in its
discretion having regard to the facts and circumstances of the case, acquit or award ta'zir to
the offender according to the nature of the offence.
Provided further that where an offence under th is Chapter has been committed in the name or
on the pretext of honour, such offence 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 t he case.
(2) All questions relating to waiver or compounding of an offence or awarding of punishment
under Section 310, whether before or after the passing of any sentence, shall be determined
by trial Court:
Provided that where the sentence of qisas o r any other sentence is waived or compounded
during the pendency of an appeal, such questions may be determined by the appellate Court:
Provided further that where qatl -e-amd or any other offence under this Chapter has been
committed as an honour crime, such offence shall not be waived or compounded without
permission of the Court and subject to such conditions as the Court may deem fit having
regard to the facts and circumstances of the case."
"345. Compounding Offences. ---(1) The offences punishable u nder the sections of the
Pakistan Penal Code specified in the first two columns of the table next following may be
compounded by the persons mentioned in the third column of that table.
(2) The offences punishable under the sections of the Pakistan Penal Code specified in the
first two columns of the table next following may, with the permission of the Court before
which any prosecution for such offence is pending, be compounded by the persons mentioned
in third column of that table.
(2-A) Where an offe nce 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, siyahkari or similar
other customs or practices, such offence 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."
8. A bare perusal of above provisions of law (inserted by Criminal Law Amendment
Act, 2004 (Act I of 2005) clearly demonstrate th at the offences could be compounded by the
permission of the Court. The amendment inserted in both the Sections through Criminal Law
Amendment Act, 2004 made it obligatory that the offence committed in the name or on the
pretext of 'siyahkari' and similar other customs or practices may be waived or compounded
subject to such conditions as the Court deems fit to impose with the consent of the parties
having regard to the facts and circumstances of the case. I am in agreement with learned
counsel for the app licants that the amended Act did not take the offences committed in the
name or pretext mentioned therein out of the circumstances of waiver or composition, but
despite compounding to ta'zir and waiver of 'qisas', Court enjoys discretion to punish the
accused persons, when the offence has been committed with brutality or on the pretext of
'siyahkari'. Compromise effected outside of the Court is of no value unless sanction by a
Court as envisaged in column No.3 of section 345(2) of the Cr.P.C. and such sanct ion is
based on sound and reasonable discretion and is not accorded as a matter of routine. Court
has to decide after taking into consideration all the attending circumstance of the case,
whether in the given situation it should or should not grant permiss ion for compounding the
offence. The courts are also obliged to decide, whether the case falls within the provisions of
section 311, P.P.C. and whether the offender despite the compromise, deserves to be
punished by way of ta'zir under the said provision o f law.
9. A tentative perusal of the record shows that the applicants are involved in the
commission of murder of two innocent persons on the pretext of 'siyahkari' while taking law
of the land in their own hands, thus, at this stage, they invoke no symp athy and do not qualify
for the grant of relief by the Court. The alleged offence committed by the applicants, prima
facie, falls within the preview of section 311, P.P.C., which having not been mentioned in
the table, as contained in section 345(2) of the Cr.P.C. and is not compoundable in nature. I
am of the considered view that brutal murders of innocent girls on the pretext of 'siyahkari'
are mainly against the State and society and not against an individual. Moreover, the offences
cannot be comp ounded automatically by the legal heirs, but it is always through the Court
and the Court can decline the permission to compromise the offence by the legal heirs of
victim(s), keeping in view the peculiar circumstances of the case.
10. Besides the above legal and factual position, it may be observed that the applicants
have been charged in promptly lodged F.I.R. for effective firing and causing death of
deceased Juma Khan and Mst. Bakhtawar. Prima facie, evidence connects the applicants with
commission of the said offence. Apart from above, accused/applicants remained absconders
for a sufficient long time and due to said unexplained abscondance, accused had lost some of
the normal rights granted by the procedural as well as substantive law for grant of bai l.
11. Mere fact that deceased Juma Khan and Mst. Bakhtawar were declared 'siyahkar' on
the basis of suspicion would not permit anyone to take law in his hands and eliminate them
from surface of world.
12. Needless to mention here that the observations made herein above are tentative in
nature and the trial Court shall not get influenced by it in any manner. The prosecution is
directed to submit challan before the trial Court within fifteen (15) days positively in case the
same has not been submitted as yet. The parties are at liberty to submit the compromise deed
before the trial Court who shall decide the fate of compromise after adhering to the relevant
provisions of law.
M.W.A./27/Bal. Bail refuseThis judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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