PESHAWAR: The Peshawar High Court Mingora Bench (Darul Qaza) has set aside conviction of a person in honour-related murder of his wife and acquitted him on basis of a compromise with the legal heirs of the deceased woman.

A bench consisting of Justice Mohammad Naeem Anwar and Justice Shahid Khan accepted an appeal filed by the convict, Noorullah, a resident of Dir Lower district, and set aside the sentence of life awarded to him by a trial court on February 2, 2023.

The bench, however, upheld his conviction under Arms Act but reduced his prison term of three years rigorous imprisonment to the period he had already spent in jail.

The FIR of the occurrence was registered at Lal Qilla police station, Dir Lower, on March 19, 2021, under section 302, 311 and 109 of the Pakistan Penal Code.

Two-member bench upholds his conviction under Arms Act

An additional SHO had lodged the complaint stating that he received information that in Asman Banda area a murder of a woman had taken place on pretext of honour.

He stated when he reached the spot, he was informed that the deceased identified as Sajida Bibi had been married to Noorullah around nine years ago and she was having a three-year-old son from the wedlock. He said that Noorullah had also contracted another marriage. He added that Noor and his father Toor Khan suspected that the deceased woman was having relations with another person in the area.

While the trial court had convicted Noorullah, it had acquitted his father of the charges of abetment and instigation. The deceased woman had left behind three legal heirs including her parents and the minor son.

The appellant’s counsel produced a compromise deed under which the parents of the deceased waived their right to Qisas and Diyat, whereas a piece of land worth Rs2.8 million was transferred by Toor Khan in the name of the minor son of the deceased through a registered deed.

The bench turned down stance of an assistant advocate general, Hafiz Ashfaq Ahmad, that the offence of honour killing was non-compoundable, therefore, the appellant, could not be acquitted on basis of a compromise.

The AAG stated that the appellant committed murder of his wife on pretext of honour for which he was also charged under section 311 of Pakistan Penal Code in the FIR.

He said that a proviso to Section 311 PPC provided that if the offence was committed in the name or pretext of honour, the offender should be punished with life imprisonment even if legal heirs of the deceased compounded their right to Qisas.

However, the bench observed that the trial court held that prosecution did not prove the allegation of honour killing against the appellant, as such, he was convicted only under section 302 (b) (intentional murder) of PPC and sentence of life imprisonment was awarded to him as Tazir.

The bench observed that as the trial court did not specifically acquit the appellant from the charge under section 311 PPC, therefore, that aspect of the case needed discussion in the light of the submissions of AAG.

The bench referred to different judgments of Supreme Court, observing that section 311 PPC empowered the trial court to punish an offender under Tazir against whom the right of Qisas was waived or compounded.

The bench observed that the power might be exercised by the trial court in either of two situations: firstly, when all legal heirs of the deceased did not waive or compound their right of Disas; secondly, if the principle of Fasad-Fil-Arz (mischief on earth) was attracted.

The bench ruled that section 311 PPC would be attracted in cases punishable with Qisas and not to cases punishable under Tazir.

The bench also referred to a judgment of the apex court wherein a judgment of Lahore High Court was reversed. The LHC had convicted an accused under section 311 PPC by invoking the principle of Fasad-Fil-Arz although compromise had taken place between the parties.

Published in Dawn, May 8th, 2023