2026 P Cr. L J 468

 2026 P Cr. L J 468

[Peshawar (Bannu Bench)]

Before Dr. Khurshid Iqbal, J

AZAM SHAH---Petitioner

Versus

The STATE and another---Respondents

Cr. Msc. Bail Application No. 12-B of 2024, decided on 26th January,

2024.

(a) Criminal Procedure Code (V of 1898)---

----S. 497---Khyber Pakhtunkhwa Elimination of Custom of Ghag Act

(II of 2013), S. 4---Demanding the hand of a woman in marriage by

way of Ghag---Bail, refusal of---Allegation against the

accused/petitioner was that due to the persistent act of Ghag by the

present petitioner, complainant remained unmarried---Notably, on

10.10.2023, the petitioner filed a suit for the restitution of conjugal

rights against complainant, where he claimed that his nikah was

solemnized with the complainant in 1991---It was alleged by

petitioner that if such a nikah had been solemnized, then, seeking

the hand of complainant in marriage would not constitute the

offence of Ghag---However, there was no documentary proof of the

alleged nikah and the petitioner was yet to establish it through

overwhelming evidence---Based on the said facts and

circumstances, it appeared that the petitioner had been claiming

the hand of the complainant in marriage without her will and

consent by making open declarations since 1991---In this way,

petitioner effectively barred complainant from marrying anyone

else, reaching the age of 52/53 years---Furthermore, the petitioner

had been directly charged for the offence, which was one of moral

turpitude---Indeed, Ghag is an un-Islamic and unconstitutional act,

which violates fundamental/ human rights and has devastating

consequences for women in the male dominated society---Such fact

strips a woman of her fundamental right to marry as per her

choice---Such egregious violation of human rights leave lasting

scars, perpetuating cycles of trauma and oppression---Given these

potential impacts, such practice had been widely condemned and

now criminalized under the said law---Court was of the view that

the offence was non-bailable and carried punishment for either

description for a term that might extend to seven years, but shall

not be less than three years, and it also imposed a fine of up to five

hundred thousand rupees or both---Bail could not be claimed as of

right in non-bailable offences---Moreover, the Court, even in cases not falling within the prohibitory clause, could refuse bail if, after

making a tentative assessment of the evidence, it found a prima

facie case against the accused---Tentative assessment of the record

prima facie linked the petitioner with the alleged offence---

Therefore, the mere fact that the offence did not fall within the

prohibitory clause of S.497, Cr.P.C., was no ground to entitle

petitioner to bail---Bail petition was dismissed, in circumstances.

Liaqat Ali v. State 2022 YLR 1662; Mahendar Kumar v. State 2022

YLR 846 and Muhammad Siddique v. Imtiaz Begum 2022 SCMR 442 rel.

(b) Criminal Procedure Code (V of 1898)---

----S. 497---Bail order---Observations of Court---Scope---Observations

made in a bail order are purely tentative in nature and should not

influence the mind of the Trial Court at the trial.

Muhammad Shafqat Murad for Petitioner.

Masood Adnan for Respondent.

Habib Ullah Khan, A.A.G for the State.

Date of hearing: 26th January, 2024.

JUDGMENT

DR. KHURSHID IQBAL, J.---The petitioner Azam Shah seeks his

release on bail in case FIR No.365, dated 24.10.2023, registered under

section 4 of the Khyber Pakhtunkhwa Elimination of Custom of Ghag

Act, 2013 at Police Station Ghazni Khel, District Lakki Marwat.

2. On 10.07.2023, the complainant Mst. Bakht Bibi filed an

application under section 22-A(6) Cr.P.C before the Justice of Peace. She

asserted that despite being about 52/53 years old, she remains

unmarried due to the persistent act of Ghag by the present petitioner.

She alleged that whenever someone proposes marriage to her, the

accused creates hurdles by enforcing a prohibited custom known as

Ghag, claiming her hand in marriage without her consent by making

open declarations. She claimed that neither the petitioner has

contracted marriage with her, nor allows her to contract marriage

with anyone else. Consequently, she reached the age of 52/53 years

while residing in her parents' house, but the accused still does not

mend his ways. After hearing the arguments, the Justice of Peace

allowed the application and the case was registered against the

petitioner under the aforementioned section of the law.

3. Arguments heard and record gone through.

4. Record shows that on 10.10.2023, the complainant Mst. Bakht Bibi

filed an application under section 22-A(6) Cr.P.C before the Justice of Peace, seeking the registration of an FIR against the petitioner for

engaging in the prohibited custom of Ghag and discouraging her

marriage proposals. The Justice of Peace sought a report from the local

police on 14.07.2023, which was duly submitted. Upon perusal, the

report reveals a dispute over landed property between the parties. It

also mentions the petitioner's claim that the hand of Mst. Bakht Bibi

was given in nikah to him in exchange for the property-although, the

revenue record tentatively shows the nature of the transaction in

respect of the property as of sale. The report further states that when

ruksati was denied, the petitioner sought the return of the land.

5. Notably, on 10.10.2023, the petitioner filed a suit for the

restitution of conjugal rights against Mst. Bakht Bibi, where he claims

that his nikah was solemnized with the complainant in 1991. The

learned counsel for the petitioner also argued that if such a nikah had

been solemnized, then, seeking her hand in marriage would not

constitute the offence of Ghag. However, there is no documentary

proof of the alleged nikah, and the petitioner is yet to establish it

through overwhelming evidence.

6. Based on the afore-noted facts and circumstances, it appears that

the petitioner has been claiming the hand of the complainant in

marriage without her will and consent by making open declarations

since 1991. In this way, he effectively barred her from marrying

anyone else, reaching the age of 52153 years. Furthermore, the

petitioner has been directly charged for the offence, which is one of

moral turpitude.

7. Ghag (Pashto: literally, a voice; a pronouncement, a declaration; a

waming)-an abhorrent social practice-is a public declaration by a

young male (usually unmarried) of a preferential claim to get the hand

of a young unmarried woman in marriage. In other words, it is a

warning both to the targeted woman and her family as well as to the

public at large to hold back from getting her married to anybody else.

The act of 'Ghag' is an offence defined under section 2(1)(b),

punishable under section 4 of the Khyber Pakhtunkhwa Elimination of

Custom of Ghag Act, 2013. For reference both the provisions are

reproduced below:

(b) "Ghag" means a custom, usage, tradition or practice whereby a

person forcibly demands or claims the hand of a woman, without

her own or her parents' or wali's will and free consent, by making

an open declaration either by words spoken or written or by

visible representation or by an imputation, innuendo, or

insinuation, directly or indirectly, in a locality or before public in

general that the woman shall stand engaged to him or any other

particular man and that no other man shall make a marriage proposal to her or marry her, threatening her parents and other

relatives to refrain from giving her hand in marriage to any other

person, and shall also include obstructing the marriage of such

woman in any other manner pursuant to such declaration; and

Explanation.-For the purpose of this definition, ghag shall also

include "awaz", "noom" or any word or phrase, denoting such

declaration.

4. Punishment ---Whoever, violates or abets in the violation of the

provisions of section 3, shall be punishable with imprisonment

of either description for a term which may extend to seven years

but shall not be less than three years and shall also be liable to

fine up to five hundred thousand rupees or both.

Indeed, Ghag is an un-Islamic and unconstitutional act. It violates

fundamental/truman rights and has devastating consequences for

women in this male dominated society. It strips a woman of her

fundamental right to marry as per her choice. This egregious violation

of human rights leaves lasting scars, perpetuating cycles of trauma

and oppression. Given these potential impacts, this practice has been

widely condemned, and now criminalized under the afore-mentioned

law. It is, therefore, high time to combat this issue with a robust

judicial response in confluence with the legislative efforts.

8. The learned counsel for the petitioner argued that the offence

does not fall under the prohibition contained in section 497 Cr.P.C.

According to him, the grant of bail in such cases is a rule, while refusal

is an exception. He asserts that there are no exceptional

circumstances, such as apprehensions of absconcion, repetition of the

offence, or tampering with the prosecution evidence after the release

of the petitioner on bail. This limb of his arguments is devoid of any

force. This Court is of the view that the offence is non-bailable and

carries punishment for either description for a term that may extend

to seven years, but shall not be less than three years, and it also

imposes a fine of upto five hundred thousand rupees or both. It is a

well established principle of criminal jurisprudence that bail cannot

be claimed as of right in non-bailable offences. Moreover, the court,

even in cases not falling within the prohibitory clause, can refuse bail

if after making a tentative assessment of the evidence, it finds a prima

facie case against the accused. As noted above, the tentative

assessment of the record prima facie links the petitioner with the

alleged offence. Therefore, the mere fact that the offence does not fall

within the prohibitory clause of section 497 Cr.P.C is not ground to

entitle him to bail. The precedents of Liaqat Ali v. State (2022 YLR 1662

Karachi), Mahendar Kumar v. State (2022 YLR 846 Karachi), and Muhammad Siddiqe v. Imtiaz Begum (2022 SCMR 442 Supreme Court)

are few to refer in this regard.

9. In light of these facts and circumstances, this petition merits no

acceptance. It is, therefore, dismissed. However, the observations

made hereinabove are purely tentative in nature. These shall not

influence the mind of the trial judge at the trial.

JK/153/P Petition dismissed.