' 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 the 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 Shah, 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 under ;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 pardoned to the accused by way, of 'Uffuf' ( yam) 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 heirs of the deceased by waiving the right of `qisas' and 'diyat', as such, after compromise effected between the parties, the Additional Session Judge was not justified to refuse bail on the ground that the offence committed on the pretext of `Ghairat' is not 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. Muslehud-Din, Advocate, 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 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 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 swa llow 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 ofl '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,' "0 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), "
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 trying 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 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."
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 offence 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 this 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 the 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 or 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.---(I) The offences punishable under 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 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, 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 that 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 applicants 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 sanction 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 permission 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 of 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 sympathy 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 compounded 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 bail.
11. Mere fact that deceased Jurma 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. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.