Azam Shah vs State S — 2026 PCrLJ 468 PESHAWAR-HIGH-COURT

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Azam Shah VS State 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 primafacie 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.

Azam Shah vs State S — 2026 PCrLJ 468 PESHAWAR-HIGH-COURT

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