No Bail
Fasad-fil-Arz
2024 LHC 3700
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 PPC, as the phrase “in the name or on the pretext of honour” inserted in the first proviso to Section 302(c) of PPC clearly indicates that the murder (naeem)committed in the name or on the pretext of honour had to be calculated as a murder committed with premeditation in the background of honour.
As per provisions of sub-section (7) to Section 345 of Cr.PC, no offence shall be waived or compounded save as provided by this Section and section 311 of PPC. Another significant amendment has been introduced by amending section 299 of PPC and introducing clause (ee) through the Criminal Law (Amendment) (Offences in the Name or on Pretext of Honour) Act, 2016, whereby an offence that has been committed in the name or on the pretext of honour has been categorized as an offence falling (naeem)within the meaning of ‘fasad-fil-arz’. As per provisions of section 311 of PPC, 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. The sole proviso to this section further provides that if the offence has been committed in the name or on the pretext of honour, the punishment shall be imprisonment for life.
In view of the amendments as made in sections 299(ee), section 302(c) and section 311 PPC read with proviso to section 345(2-A) and 345 (7) of Cr.PC, a convict in an honour killing case, still can face sentence of imprisonment for life even if legal heirs of a victim have settled the matter by way of compromise and pardoned the convict. Therefore, the accused/petitioner is not entitled to be released (naeem)on bail on the basis of any statement made by the legal heirs of the deceased whereby they have compounded the offence as in view of provisions of Sections 345(2-A) & 345(7) of the Cr.P.C., no offence shall be waived or compounded save as provided by the provisions of section 311 PPC.
Bail refused.
Crl. Misc.47663/24
Bilal Sikandar Vs The State etc.
Mr. Justice Shakil Ahmad
21-08-2024 2024 LHC 3700
Full judgment
Form No: HCJD/C-121
ORDER SHEET
IN THE LAHORE HIGH COURT LAHORE
(JUDICIAL DEPARTMENT)
Case No. Crl. Misc. No. 47663-B of 2024
Bilal Sikandar Versus The State and another
Sr. No. of order/ Proceedings Date of order/ Proceedings Order with signatures of Judge, and that of parties or counsel, where necessary.
21.08.2024 Mr. Mushtaq Ahmad Mohal, Advocate for the petitioner.
Miss Rashida Parveen, Assistant District Public Prosecutor with Junaid, SI.
After dismissal of his post-arrest bail petition by learned Additional Sessions Judge, Sargodha, vide order dated 07.03.2024, Bilal Sikandar, accused/petitioner has filed instant petition under section 497 of the Code of Criminal Procedure, 1898 (Cr.P.C.) seeking post-arrest bail in case F.I.R. No.99 of 2024 dated 02.02.2024 registered at Police Station Bhagtanwala District Sargodha for the offences under sections 302, 311 of the Pakistan Penal Code, 1860 (PPC).
2. Allegation, in a nutshell, against the
accused/petitioner is that he, by exhorting that Ramsha (his sister) has brought dishonour to them and he would not leave her alive, made a straight fire shot hitting on the back of Ramsha, who succumbed to the injury at the spot.
3. Heard. Record perused.
4. Instant is a case in which Ramsha (aged about 21/22 years) lost her life in the consequence of a fire shot injury alleged to have been made on her by none other than her real brother, on account of ‘ghairat’. The occurrence that took place on 02.02.2024 at 12:30 PM was claimed to have been witnessed by Muhammad Junaid Ahmed, T/SI and the constables who, during the course of patrolling, when reached near the house of deceased, rushed inside the house on hearing an uproar coming inside the house. According to them, accused/petitioner who was armed with 12-bore single barrel, made straight fire shot hitting on the person of Ramsha who fell down and succumbed to the injury at the spot. Strangely enough, none of the inmates, including the parents of the deceased, opted to become the complainant qua the incidence in which their own daughter was done to death, and even they did not give their account regarding the murder of the deceased immediately, just after the occurrence that how and under which circumstances Ramsha became injured and lost her life. Occurrence has been shown to be witnessed by the independent persons belonging to the police department who, ex facie, have no ill-will or any sort of grudge to falsely involve the accused/petitioner with the commission of murder of his own sister. Even, the accused/petitioner remained fugitive from law for the period of around 5 months and when finally rounded up, got recovered the firearm. The investigator also collected a crime empty from the spot and the same was sent to the office of PFSA. The firearm recovered from the accused/petitioner has also been dispatched to the concerned quarter for analysis. The police/investigator seemed to have collected sufficient evidence/material linking the accused/petitioner with the commission of alleged crime.
5. Issue of honour killing had been noticed by courts with grave concern and in case “Muhammad Akram Khan v. The State” (PLD 2001 SC 96), while answering stance taken by defence that accused committed offence under the impulse of ‘ghairat’, the Supreme Court of
Pakistan observed as under: -
“Legally and morally speaking, nobody has any right nor can anybody 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 (Qatli-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.”
In case “Umer Din v. The State and others” (2017 YLR Note 378 [Lahore]), while dealing with the case of post-arrest bail of an accused relating to honour killing, this Court observed as under: -
“8. It is important to observe that in our society granting post-arrest bails in ‘honor killing’ i.e. a violence against women will substantially increase such incidents, which in most of the cases is for gain of the property, demanding the hand of a woman of choice, settling the old scores and personal vendetta. Certainly, if such like act as committed by the petitioner is approved, it would lead to an anarchic situation in the society and lynching of women would become order of the day.”
In case “Khadim Hussain and another v. The State” (PLD 2012 Baluchistan 179), while dealing with the same moot point it was observed as under: -
“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 learned counsel for the applicants that according to the prosecution's own showing, the 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 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 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),--- 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), which 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 Prophet then mentioned the narration of Lian (as in the Holy Book). (Surat-al-Nur..
24),"
Being conscious of the fact that it had become an ignominious practice in the society, particularly after promulgation of Qisas and Diyat Ordinance, 2000, that after doing away with females, either she may be a wife, mother, daughter, or sister on the pretext of honour, real perpetrators were usually being let off after getting pardon from wali/walis, the legislature introduced certain amendments through the Criminal Law (Amendment) Act, 2004 (Act I of 2005), whereby the definition of an offence committed in the name or on the pretext of the honour was introduced. Similarly, clause (c) to section 302 of PPC was also amended and substituted through the Criminal Law (Amendment) (Offences in the Name or on
Pretext of Honour) Act, 2016 as under: -
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.”
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 PPC, as the phrase “in the name or on the pretext of honour” inserted in the first proviso to Section 302(c) of PPC 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 of honour. Reliance in this regard may safely be placed on the case reported as “Muhammad Qasim v. The State” (PLD 2018 SC 840).
Similarly, certain amendments were also made in Section 345 of Cr.P.C., introducing 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 of the
case.”
Similarly, as per provisions of sub-section (7) to Section 345 of Cr.PC, no offence shall be waived or compounded save as provided by this Section and section 311 of PPC. Another significant amendment has been introduced by amending section 299 of PPC and introducing clause (ee) through the Criminal Law (Amendment) (Offences in the Name or on Pretext of Honour) Act, 2016, whereby an offence that has been committed in the name or on the pretext of honour has been categorized as an offence falling within the meaning of ‘fasad-fil-arz’. As per provisions of section 311 of PPC, 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. The sole proviso to this section further provides that if the offence has been committed in the name or on the pretext of honour, the punishment shall be imprisonment for life.
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 sections 299(ee), section 302(c) and section 311 PPC read with proviso to section 345(2-A) and 345 (7) of Cr.PC, a convict in an honour killing case, still can face sentence of imprisonment for life even if legal heirs of a victim have settled the matter by way of compromise and pardoned the convict. Therefore, the accused/petitioner is not entitled to be released on bail on the basis of any statement made by the legal heirs of the deceased whereby they have compounded the offence as in view of provisions of Sections 345(2-A) & 345(7) of the Cr.P.C., no offence shall be waived or compounded save as provided by the provisions of section 311 PPC.
7. The next submission of learned counsel for the petitioner is that there exists a glaring conflict between the ocular account and medical evidence; therefore, the case of the petitioner necessitates further inquiry entitling him to the grant of post arrest bail. According to him, as per witnesses of ocular account, the fire shot made by the accused/petitioner landed on the back of the deceased whereas as per postmortem report, the injury present on the back of the deceased has been shown as an everted wound, suggesting that it was an exit wound. This argument hardly holds any water for the simple reason that the sole argument qua conflict between medial evidence and ocular account can hardly be appreciated without deeper appreciation of evidence which exercise is not warranted at bail stage particularly keeping in view the peculiar facts and circumstances of the instant case wherein accused/petitioner alone is named in the FIR with specific role of making fire shot on the person of none other than his real sister and he thereafter remained fugitive from law for the period of around 5 months and when rounded up got recovered firearm that was also sent to the concerned quarters for its matching with the crime empty secured by the investigator from the spot that had already been sent to the concerned quarters much prior to the recovery of firearm from the petitioner and last but not the least, accused/petitioner upon conclusion of investigation has been found involved in the commission of alleged crime. There is no cavil with the proposition that a case of further inquiry presupposes a tentative assessment of the material brought on record starting from the time of lodging of the FIR and the material collected during the course of investigation till the conclusion of the investigation, which in turn creates some doubt with respect to the involvement of an accused in the commission of crime, whereas the expression ‘reasonable grounds’ refers to grounds that may be legally tenable, admissible in evidence and appealing to a reasonable judicial mind as opposed to being whimsical, arbitrary, or presumptive. In case “Ata-ullah v. The State” (2014 SCMR 1210), the Supreme Court of Pakistan observed that for all intents and purposes the doctrine of further inquiry demonstrates notional and exploratory assessment that may create doubt regarding involvement of an accused in the commission of crime. Even in case “Mst.
Parveen Akhtar v. The State and others” (2002 SCMR 1886), it was observed that mere possibility of further inquiry which existed almost in every criminal case was not a ground for treating the matter as one of further inquiry falling within the purview of section 497(2) of Cr.PC. In the instant case, however, upon tentative assessment of the material available with the prosecution, this Court is convinced that reasonable grounds exist for believing that the accused/petitioner has committed a nonbailable offence falling within the ambit of the prohibitory clause as contained in Section 497 of Cr.PC, inasmuch as overwhelming evidence is available on the record to connect the accused/petitioner with the commission of the alleged crime. No case of post-arrest bail at all is made out. Petition is dismissed.
8. Needless to observe that observations made hereinabove are tentative in nature and shall be considered to have been made only to the extent of the decision of instant bail petition and shall not in any manner influence the trial court while deciding the main case. The learned trial court is directed to proceed to decide the main case expeditiously, preferably within a period of four months, from the receipt of certified copy of this Order. Office is directed to transmit a copy of this Order to learned trial court, forthwith. The research assistance provided by
Mr. Muhammad Afzil, Civil Judge/Research Officer, Research Center, Lahore High Court is appreciated.
(Shakil Ahmad) Judge
Approved for reporting
