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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Maqbool Baqar Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition Nos.1322-L, 1296-L & 1297-L of 2013 (Against judgment dated 30.10.2013 of the Lahore High Court, Lahore passed in Crl. Apeal No.934/2010, Revision No.568/2010 with M.R. No.232/2010) Muhammad Rafique alias Neela (in Cr. P. No.1322-L/2013) Mushtaq Hussain (in Cr. P. No.1296 & 1297-L/2013) …Petitioner(s) Versus The State (in Cr. P. No.1322-L/2013) Muhammad Rafique alias Neela, etc. (in Cr. P. No.1322-L/2013) …Respondent(s) For the Petitioner(s): Sardar Khuram Latif Khan Khosa, ASC (in Cr.P. No.1322-L/2013) For the Complainant: Mr. Mazhar Ali Ghallu, ASC (in Cr.P. No.1296 & 1297-L/2013) For the State: Mr. Muhammad Jaffar, Addl. Prosecutor General Punjab. Date of hearing: 06.03.2020. JUDGMENT Qazi Muhammad Amin Ahmed, J.- Muhammad Rafique alias Neela, Muhammad Naveed and Muhammad Saeed, real brothers inter se, along with their father Jafar Hussain were indicted for homicide by the learned Sessions Judge Toba Tek Sindh; they were accused by Mushtaq Hussain (PW-11) for stabbing Nazim Hussain, deceased, 30, to death at 10:30 a.m. on 23.10.2009 within the precincts of Police Station Kamalia District Toba Tek Singh; Jafar Hussain accused was blamed to have instigated the crime; petitioner is attributed fatal hatchet blow to the deceased; remainders are assigned abrasions on the back of left upper arm and below right knee, respectively measuring 2 x 1 cm and 1 x 1 cm. Criminal Petition Nos.1322-L, 1296-L & 1297-L of 2013 2 According to the prosecution, on the fateful day, deceased on a motorbike, was surprised by the accused, in the backdrop of a previous brawl. The petitioner was returned a guilty verdict vide judgment dated 8.4.2010; convicted under clause (b) of section 302 of the Pakistan Penal Code, 1860 and sentenced to death whereas Muhammad Naveed and Muhammad Saeed, co-accused to imprisonment for life for being in the community of intention; Jafar Hussain was acquitted from the charge. The High Court maintained petitioner’s conviction albeit with alteration of death penalty into imprisonment for life while acquitting Muhammad Naveed and Muhammad Saeed from the charge vide impugned judgment dated 30.10.2013, vires whereof, are being assailed both by the complainant as well as the convict. Issues being inter linked, the captioned petitions are being decided through this single judgment. 2. Learned counsel for the petitioner/convict contends that after acquittal of three out of four accused, each assigned a distinct role, there was no occasion for the High Court to rely upon the same discredited evidence qua the petitioner to maintain his conviction. Learned counsel for the complainant, contrarily, not only prayed for reversal of death penalty but also acquittal recorded qua the co-accused on the ground that there was no occasion for the High Court, after it had believed the witnesses, to acquit the respondents assigned a role confirmed by medical evidence merely on a conjectural premise. Learned Law Officer wholeheartedly agreed with the conclusions drawn by the High Court. 3. Heard. Record perused. 4. Petitioner is assigned fatal blow. According to the autopsy report, conducted at 2:30 p.m. same day, it is an incised wound of quite an extensive nature, penetrating into brain cavity; it is consistent with hatchet P-3, found stained with blood, forensically opined that of human origin, recovered pursuant his disclosure on 6.11.2009. Infliction of the fatal blow at petitioner’s hand has unanimously been confirmed by the witnesses; occurrence being a broad daylight affair on a thoroughfare within the vicinity of inhabitation, inculpatory investigative conclusions, being in line therewith, have not been found by us as open to any legitimate exception. Jafar Hussain, real father of the accused, is saddled with instigation; he has rightly been acquitted Criminal Petition Nos.1322-L, 1296-L & 1297-L of 2013 3 by the trial Court; whereas triviality of abrasions, swayed on the High Court to exercise caution qua Muhammad Naveed and Muhammad Saeed is an equally expedient choice. Doctrine of abundant caution is a silver lining in our jurisprudence to ensure safe administration of criminal justice and application thereof does not necessarily imply destruction of entire volume of evidence, if otherwise found sufficient to sustain the centrality of the charge. Though, the Medical Officer has not been cross-examined during the trial, nonetheless, upon analysis, abrasions came about during the occurrence, admit possibilities, exculpatory in nature. The High Court has been well within remit to let off the respondents; wage settled is conscionable in circumstances. Scales are in balance. Petitions fail. Leave declined. Judge Judge Lahore, the 6th March, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017 (On appeal against the judgment dated 08.11.2016 passed by the Lahore High Court, Bahawalpur Bench in Criminal Appeal Nos. 470 & 471 of 2013 and Murder Reference No. 51 of 2013) Bashir Ahmed and Munir Ahmed (In Cr.P. 1371/2016 & Cr.M.A. 1704/2017) Muhammad Ilyas (In Cr.P. 1651-L/2016) … Petitioners/Applicants VERSUS The State (In Cr.P. 1371/2016 & Cr.M.A. 1704/2017) Munir Ahmed (In Cr.P. 1651-L/2016) … Respondents For the Petitioner: Syed Asim Ali Bukhari, ASC (In Cr.P. 1371/2016 & Cr.M.A. 1704/2017) Ch. Ghulam Murtaza Khan, ASC (In Cr.P. 1651-L/2016) For the State: Mirza Abid Majeed, DPG, Punjab Date of Hearing: 26.11.2020 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through this consolidated judgment, we intend to decide Cr. Petition No. 1371/16 filed by the petitioners/convicts against their conviction, Cr. Misc. Application No. 1704/17 for suspension of sentence and Cr. Petition No. 1651-L/16 filed by the complainant for enhancement of sentence awarded to the petitioner Munir Ahmed. 2. Munir Ahmad and Bashir @ Shada along with three others were tried in the case registered vide FIR No. 143/2011 dated 05.08.2011 under Sections 302, 324, 337-F(vi), 337-L(ii), 34/149 PPC at Police Station Marot, District Bahawalnagar for committing murder of Muhammad Ishaq, brother of the complainant, and for causing CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017 2 injuries to complainant Muhammad Ilyas (PW-4) and Muhammad Shahid (PW-5). 3. Brief facts as disclosed in the FIR are that the complainant was owner of land measuring 35 acres, which was under his cultivation. At the night preceding the occurrence, it was turn of the complainant to avail waters for his lands. At about 8.00 a.m, the level of the water decreased upon which the complainant along with Muhammad Shahid visited their watercourse and found that close to the lands belonging to Abdul Majeed Kamboh, a cut was made and the water was being stolen by the accused Munir, Naseer, Bashir @ Shada, Asif and Rashid and the same was breached for their own lands. When they were estopped to commit water theft, it infuriated the accused persons namely Bashir @ Shada who inflicted injuries on the person of the complainant and Muhammad Shahid with handle of the hatchet and did not allow them to have access to the watercourse. On the same day at 11.30 a.m another attempt was made by the complainant party to have access to the watercourse. Soon they reached near the lands of Abdul Majeed Kamboh, the deceased Muhammad Ishaq tried to repair the breach to continue with their share of water. Meanwhile in their presence, Bashir @ Shada raised lalkara to Munir accused to fire at Ishaq, upon which said Munir made straight fire with his rifle at Muhammad Ishaq, which hit on the right side of his neck. Due to the infliction of injury, he fell down. Thereafter co-accused Naseer and Bashir @ Shada made straight fires at the complainant and Shahid but they saved their lives by lying on the ground. The injured was being taken to hospital, however, Ishaq succumbed to the injuries on his way. 4. During the course of investigation carried out by the local police, the petitioners along with three others were found involved and as such their names were placed in coloumn No. 3 of the report submitted under Section 173 Cr.P.C., which was submitted to the Illaqa Magistrate and the same was en-routed to the learned Sessions Judge under Section 190(2) Cr.P.C. The learned Trial Court after taking cognizance of the offences framed charge vide order dated 03.02.2012. After completion of the trial, the learned Trial Court vide judgment dated 30.11.2013 convicted Munir Ahmed under Section 302(b) PPC and he was sentenced to death. He was also directed to pay CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017 3 Rs.300,000/- as compensation to the legal heirs of deceased Muhammad Ishaq as required under Section 544-A Cr.P.C. In case of default, it had to be realized as arrears of land revenue or in case of non-realization of said amount, he was to further undergo six months SI. Bashir @ Shada was convicted by the Trial Court under Section 337-F(vi) PPC for causing injury on left hand of complainant, and was held liable to pay Rs.30,000/- as Daman to the victim Muhammad Ilyas (complainant). He was also convicted under Section 337-L(ii) for causing injury on the back side of chest of the complainant Muhammad Ilyas and was held liable to pay Rs.10,000/- as Daman to him. He was also convicted under Section 337-L(ii) PPC for causing injury on left forearm of Shahid and was held liable to pay Rs.10,000/- as Daman to him. Petitioner Bashir was directed to pay Daman to the victim or in case of failure, he was directed to be kept in jail and dealt within the same manners as if sentenced to simple imprisonment until amount of Daman was paid. However, the learned Trial Court acquitted the co-accused namely (i) Naseer Ahmed, (ii) Rashid and (iii) Muhammad Asif of the charge while extending them benefit of doubt. 5. Cr. Appeal Nos. 470, 471/13 were preferred by the appellants before the Lahore High Court (Bahawalpur Bench), calling in question the judgment of the learned Trial Court dated 30.11.2013. The learned Trial Court sent Murder Reference under Section 374 Cr.P.C to High Court. Both Cr. Appeals and Murder Reference No. 51/13 were heard by a Division Bench of the High Court and vide judgment dated 08.11.2016, conviction recorded against both the appellants Munir Ahmed and Bashir Ahmed @ Shada was ordered to be upheld with alteration of sentence of death awarded to Munir Ahmed into imprisonment for life. Both the appellants were extended benefit of Section 382-B Cr.P.C. 6. Cr. Petition No. 1371/16 was filed before this Court challenging the legality of the judgments passed by the courts below dated 30.11.2013 and 08.11.2016 mainly on the ground that conviction and sentence recorded by both the courts is not sustainable in the eyes of law. During the course of proceedings before this Court, a query was made to the learned counsel for the petitioners qua the legality of sentence and conviction recorded by the Trial Court, which CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017 4 was maintained by the High Court, keeping in view the sentence inflicted to Munir Ahmed under Section 302(b) PPC and sentence inflicted to Bashir @ Shada under Section 337-F(vi), 337-L(ii) and 337- L(iii) PPC while ignoring this aspect of the case that the act of both petitioners was committed in furtherance of their common intention, especially when there was no such finding, which could be made basis that the element of common intention or common object was not established. The question whether in absence of any such finding, the aforesaid conviction and sentence recorded by the courts below was justified in law, (ii) whether when Munir is convicted under Section 302(b) PPC whereas Bashir @ Shada is convicted according to his individual role, both the sentences in all eventuality are in consonance with the spirit of Section 302/324/34 PPC (common intention) or if the number of accused are five or more under Section 302/148/149 PPC (common object), hence these were the moot points for consideration in this case. Learned counsel appearing for the parties have not controverted the query made by the Court and categorically stated that both the learned courts below had erred in law and have not decided the same in its true perspective according to the intent of the law. 7. We have noticed on various occasions while dealing with the judgments of the courts below, agitated before us that the aforesaid legal requirements are being ignored by the courts while handing down judgments in murder cases. As this anomaly has arisen which is in violation of the intent of the law, therefore, we deem it necessary and in the fitness of things to resolve this legal issue while delivering an exhaustive/elaborative judgment for the future guidance. Perusal of the record in the instant case reflects that the learned Trial Court framed charge in the case on 03.02.2012 in the following terms:- “CHARGE SHEET I, Muhammad Anwar Butt, Additional Sessions Judge, Bahawalnagar hereby charge you:- 1. Muhammad Asif son of Shaukat Ali, aged 19 years; 2. Rashid son of Nazir Ahmad, aged 20 years; Both Sukhera by caste 3. Munir Ahmad son of Nazir Ahmad, aged 44 years; 4. Bashir Ahmad son of Nazir Ahmad, aged 44 years; 5. Naseer Ahmad son of Nazir Ahmad, aged 42 years; CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017 5 All Jat by caste, residents of Chak No. 298/HR Tehsil Fortabbas District Bahawalnagar. as under:- FIRST: That on 05.08.2011 at 8.00 am in the area of Chak No. 297/HR Tehsil Fortabbas District Bahawalnagar you all the above named accused persons in prosecution of your common object caused injuries to Muhammad Ilyas complainant and Muhammad Shahid PW which were declared as Jurh Ghayr Jaifah Munaqillah and other hurts and thus you have committed an offence punishable u/s 337- F(v)/337-L(ii) read with Section 149 PPC which is within the cognizance of this court. SECONDLY: That on the same day and place at 11.30 am you Muhammad Munir, Naseer Ahmad and Muhammad Bashir while armed with fire arm weapons in furtherance of your common intention caused fire arm injuries on the person of Muhammad Ishaque brother of the complainant, as a result of which he died at the spot and thus you have committed an offence punishable u/s 302 read with Section 34 PPC which is within the cognizance of this Court. And I hereby direct that you all be tried by this Court for the above charges.” 8. In response to the charge, the accused persons facing trial denied it in toto, hence claimed trial. The prosecution evidence was summoned by the court, which was recorded while providing ample opportunity of cross-examination. The legal attributes of “due process” were fully adhered to during proceedings before the trial court. The learned ADPP vide statement dated 21.11.2013 closed the prosecution evidence while giving up PWs Ahmed Raza, Shahid Imran, Mehmood ul Hassan and Liaqat Ali being unnecessary. He tendered in evidence report of Chemical Examiner as Ex.PQ, report of Serologist as Ex.PQ/1 and report of Forensic Science Agency as Ex.PR. On the conclusion of the prosecution case the statements of the accused persons were recorded under Section 342 Cr.P.C. In response to question ‘why this case against you’ they categorically denied the allegations leveled by the prosecution but did not opt to lead defence evidence. The learned Trial Court after conclusion of the proceedings before it, acquitted three co-accused, while conviction was recorded against petitioners Munir under Section 302 (b) PPC and Bashir @ Shada under Sections 337- F(vi) &337-L(ii) PPC as narrated above. This judgment was upheld by the High Court. For the elaborative analysis qua the application of CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017 6 provision of Section 302 PPC, it would be advantageous to reproduce Section 300 PPC wherein ‘qatl-e-amd’, has been defined as under:- Qatl-e-Amd: Whoever, with the intention of causing death or with the intention of causing bodily injury to a person, by doing an act which in the ordinary course of nature is likely to cause death, or with-the knowledge that his act is so imminently dangerous that it must in all probability cause death, causes the death of such person, is said to commit qatl-e-amd. It would also be in “fitness of things” to reproduce Section 302 PPC, which reads as under:- “302. Punishment of qatl-i-amd : Whoever commits qatl-e- amd shall, subject to the provisions of this Chapter be: (a) punished with death as qisas; (b) punished with death or imprisonment for life as ta'zir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in Section 304 is not available; or (c) punished with imprisonment of either description for a term which may extend to twenty-five years, where according to the Injunctions of Islam the punishment of qisas is not applicable. Provided that nothing in clause (c) shall apply where the principle of fasad-fil-arz is attracted and in such cases only clause (a) or clause (b) shall apply.” 9. The provision of Section 302 PPC provides punishment for the commission of qatl-e-amd. The punishment of qatl-e-amd has been categorized under the heads “(a), (b), (c)”. The provision of Section 302(a) PPC is reflection of punishment as provided in Islamic system by way of qisas. The word ‘qisas’ means return of evil for evil and it also denotes retaliation. Another word ‘retribution’ is also synonymous which means a punishment inflicted in return for the wrong and thus distinctively stresses the operation of the strict justice by administering merited punishment. The application of Section 302(a) PPC provides the return in the same coin persuading the offender to be done to death in the same manner he committed death of the fellow person. However, there are certain legal requirements for application of Section 302(a) PPC. Section 299 (k) PPC defines qisas in the following terms:- "qisas" means punishment by causing similar hurt at the same part of the body of the convict as he has caused to the CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017 7 victim or by causing his death if he has committed qatl-iamd in exercise Of the right of the victim or a wali', The Legislature has specifically laid down that the initiation of proceedings under Section 302(a) PPC is subject to qualifying prerequisites as laid down in Section 304 PPC. The same reads as under:- “304. Proof of qatl-i-amd liable to qisas, etc.: (1) Proof of qatl-i-amd shall be in any of the following forms, namely: - (a) the accused makes before a Court competent to try the offence a voluntary and true confession of the commission of the offence; or (b) by the evidence as provided in Article 17 of the Qanun-e-Shalladat, 1984 (P.O. No. 10 of 1984). (2) The provisions of sub-section (1) shall, mutatis, mutandis, apply to a hurt liable to qisas. Bare perusal of the aforesaid provision broadly emphasis two fold conditions, (i) voluntary and true confession regarding the commission of the offence, (ii) qualifying the postulates of Article 17 of the Qanun-e-Shahadat Order, 1984. Article 17 of the Qanun-e- Shahadat Order, 1984, further emphasis the competence of a person qualifying it to be a truthful witness as required in accordance with the injunctions of Islam as laid down in Holy Quran and Sunnah. The primary/foremost qualification for a person to appear as a truthful witness in a case falling under ‘qisas’ is that he must fulfill the condition of tazkiya-tul-shahood. In ordinary meanings, it is an accepted rule of tazkiya-tul-shahood, that the credibility of the witness shall be examined through credible person of the same walk of life to which the witness belongs. Tazkiya-tul-shahood also entails an open and confidential inquiry regarding the conduct of the witness to ascertain whether the witness is credible or otherwise. The word ‘from the same walk of life’ is most essential attribute regarding this aspect. However, there are two modes provided to evaluate tazkiya-tul-shahood, (i) open, (ii) confidential. To ascertain the credibility of a witness on the touchstone of tazkiya-tul-shahood, the Judge is under obligation to inquire the credentials of the witness proposed to testify during the court proceedings to adjudge his truthfulness. Likewise, he can also adopt the way of secret CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017 8 inquiry to further satisfy his conscience about the credibility of the witness for that he can delegate/appoint someone else to ascertain the truthfulness of the person claiming acquaintance with the facts and circumstances of the case. There is no constraint that with the changing situation in the advanced era, the modern devices/technical assistance can also be utilized to persuade the piousness of the witness to arrive at a conclusion which endorses the believability qua the character of the witness by the Presiding Officer. 10. Section 302(b) PPC was made part of Section 302 PPC by the Legislature, which equates provision of Section 302(a) PPC regarding the infliction of sentence of death. In-fact there are two sentences provided under the head 302(b) i.e. death or imprisonment for life as Tazir. There is marked distinction qua consideration and application of sentence which is also based upon other considerations. The parameters are entirely on different benchmark wherein strict compliance of Section 304 PPC or applicability of Article 17 of the Qanun-e-Shahadat Order is not required. Likewise, the mode and manner of ascertaining the guilt and execution of the sentence is altogether different. The intention behind this was in-fact to meet the requirements of law and order situation prevailing in the society with an intent not to let any crime unattended/un-addressed and further not to let any criminal escape from the clutches of law. The insertion of the word ‘tazir’ under the head 302(b) PPC has a specific significance. The word ‘tazir’ is defined in Section 299(l) as under:- "299(l) ta'zir" means punishment other than qisas, diyat, arsh, or daman” The literal meaning of word ‘tazir’ is chastisement. Undeniably the word ‘tazir’ means punishment inflicted by the Court other than ‘qisas’. As the punishment of ‘tazir’ is not prescribed by the Holy Quran or Sunnah, therefore, it cannot be as stern and stringent as that of qisas. It includes punishment of imprisonment, forfeiture of property and fine. A discretion has been left with the court assigned with the matter to decide and CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017 9 inflict either of the punishments commensurating with the overt act as surfaced according to facts and circumstances of the case. The Court of competent jurisdiction is fully justified to award sentence subject to assigning justiciable reasons to meet the ends of justice. The offence under Section 302(b) PPC is otherwise made compoundable by the application of Section 345(2) Cr.P.C, which in addition further qualifies that if all the legal heirs have compounded the offence, the Court is empowered to ensure that the parties may have buried the hatchets once for all. 11. Provision of Section 302(c) PPC is somewhat similar to the erstwhile Section 304 PPC. The provision of Section 302(c) in the original text was an exception of Section 302 PPC while following the requirements of erstwhile Section 304 PPC. This provision covers all those offences which were committed resulting into culpable homicide not amounting to murder and as such cannot be equated with the requirements for application of sentences as provided under Section 302(a)(b) PPC. Any occurrence though resulted into an act of homicide but it was committed without element of mens rea, pre-meditation or ill design, would squarely attract the provision of Section 302(c) PPC. The framers of the law while inserting the said provision provided sentence of imprisonment which may extend to 25 years. The sentence of 25 years is clothed with discretionary powers of the court contrary to sentences provided under Section 302(a)(b) PPC. Broadly speaking this distinction qua the discretionary power to inflict sentence is based upon the fact that the law makers were conscious of the situations like free fight, case of two versions, undisclosed story, sudden affair, question of ghairat, absence of mens rea, self defence and cases initiated due to the element of sudden provocation. In ordinary speech, the meaning of ‘provocation’ is said to be incitement to anger or irritation. In English law it has a meaning based on anger but it is a word used to denote much more than ordinary anger. To extenuate the killing of a human being provocation has always needed to be of a special significance. Throughout in the proceedings of the cases it is seen to be something which incites immediate anger or "passion", CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017 10 which overcomes a person's self-control to such an extent as to overpower or swamp his reason. In other words provocation is when a person is considered to have committed a criminal act partly because of a preceding set of events that might cause a reasonable person to lose self control. Analyzing the concept of 'provocation in law under the Common Law of England, Lord Devlin, delivering the judgment of the Judicial Committee of the Privy council in Lee Chun- Chuen v. The Queen (1963 1 All ER 73) held as under:- "Provocation in law consists mainly of three elements the act of provocation, the loss of self-control, both actual and reasonable, and the retaliation proportionate to the provocation." So, it can be said that there are mainly four elements which need to be established to avail the defence of provocation i.e. (i) the provoking circumstances, (ii) the accused’s loss of self- control resulting from the provoking circumstances, whether reasonable or not; (iii) whether the provocation could have caused the ordinary person to lose self-control, (iv) the retaliation was proportionate to the provocation. Whether the accused’s loss of self-control was a result of the provoking circumstances is a subjective test. To prove the element of provocation, there are two more conditions i.e. (i) it should be prompt, and (ii) it was retaliated without inordinate delay. We have also noticed that apart from the circumstances narrated above inviting application of Section 302(c) PPC another situation has now erupted in the society having direct nexus with such like situations, i.e. a deliberate and malicious act intended to outrage religious feelings of any class of people by insulting its religion or religious rituals by use of derogatory remarks, which further extend the scope of cases falling under the ambit of sudden provocation. 12. In United Kingdom almost in similar situation, the framers of the law enacted an Act called “Homicide Act, 1957” in which they have dealt with such like situation under the ‘dictum,’ ‘diminished liability’. To evaluate such like situation, the mental faculty of the offender was to be gauged according to prevailing circumstances in which the offence was committed CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017 11 and as such it was given precedence over the already existing liability regarding culpable homicide amounting to murder. While drawing analogy from the said legislation, it can be safely assumed that the provisions of Section 302(c) PPC can also be equated/adjudged keeping in view the state of mind of the offender, his surrounding circumstances and the mode of commission of the offence. If those are adjudged conjointly, it would certainly imprint a better picture before the court of law to adjudicate the matter, which might commensurate with the allegation. 13. A careful analysis of the aforesaid categories falling under the provision of Section 302 PPC abundantly makes it clear that the provision of Section 302(a) PPC is a distinct provision having different mode and manner of application with different considerations exclusively derived from the Islamic judicial system. The proceeding under the aforesaid provision is a rare phenomenon whereas the majority of the cases dealt with by the courts below fall under Section 302(b) PPC. As stated above, provision of Section 302(b) PPC provides two sentences i.e. death, (ii) imprisonment for life. Murder cases exclusively falling within the ambit of Section 302(b) PPC would be dealt with in a manner exclusively depending upon the number of assailants. Undeniably a single assailant can commit the aforesaid offence but if the number of assailants is more than one and the offence is committed in furtherance of common intention then the provision of Section 34 PPC would certainly attract. Similar to that if the tally of the accused is five or more and the offence is committed in furtherance of common object then the provision of Sections148/149 PPC would be applicable. The learned Trial Court seized of the matter depending upon the number of accused has to render a definite finding qua the applicability of Section 34 PPC (common intention) or Sections 148/149 PPC (common object). These two legal aspects are to be addressed with the application of the aforesaid provision of Section 302(b) PPC depending upon the number of assailants. It is bounden duty of the courts below to ascertain the aspect of common intention or common object primarily at the time of CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017 12 framing of the charge on the basis of contents of FIR, statements under Sections 161 & 164 Cr.P.C, if any, final report under Section 173 Cr.P.C and other attending documents collected by the Investigating Officer during investigation. The Trial Court is equally responsible to give a definite finding qua the applicability of Section 34 PPC or Sections 148/149 PPC at the time of conclusion of the trial while handing down the judgment. Now adverting to the moot point which was raised during the proceedings that if anybody is found guilty of commission of offence attracting the provision of Section 302(b) PPC, the co- accused can be saddled with the responsibility on the basis of individual liability or the whole occurrence has to be decided keeping in view that the offence was committed in furtherance of their common intention and the provision of Section 302(b) PPC would be applied conjointly against the persons joining hands falling under either of the categories i.e. common intention or common object falling under Section 34 or 148/149 PPC depending upon the number of persons facing charge. We may observe that any judgment which concludes the commission of offence falling under Section 302(b) PPC in furtherance of common intention or common object but decides the lis on the basis of individual liability would be squarely in defiance of the intent and spirit of law on the subject. 14. Section 302(c) PPC is an exception to the aforesaid provision under which in presence of a clear finding that the offence committed was not in furtherance of common intention or common object, however, the court otherwise comes to the conclusion that the prosecution has proved its case to the hilt against the accused, the Court is under legal obligation to record conviction and sentence according to the role of every assailant constituting a criminal act according to overt act ascribed to him. The framers of the law while inserting Section 302(c) PPC wisely provided sentence which might extend to 25 years. It was done with an intent to provide an opportunity to the court of law to inflict sentence proportionate to the act of the assailant according to the facts surfaced during the course of proceeding. It is not out of context to highlight that the Trial Court prior to proceeding with CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017 13 the matter as stated above has to render a definite finding qua the fact that the incident is not result of common intention or common object which has a substantial importance to attract the aforesaid provision. Any slackness on the part of the court to ignore this aspect might infringe the rights of either of the parties involved in the process of law which is an essential attribute of court proceedings, denial of which might create imbalance, resulting into chaos in the society. The concept of safe administration of criminal justice and maintaining equilibrium qua the protection of legal rights is attire of the judicial system. Any defiance to the said balance might frustrate the confidence of the public which has to be at the highest pith in a civilized society. The courts of law can gain the confidence by imparting fair, equitable and justiciable dispensation of justice eliminating any possibility of discrimination on the basis of gender, race, religion, colour, caste, creed, status and language etc. The Judges have to discharge this arduous task with utmost care and caution so that public confidence in judicial process is not shattered. 15. For what has been discussed above, we are inclined to issue following guidelines to the courts below to follow in future: i) that the Trial Court seized with the criminal trial is squarely required to adhere to the provision of Sections 265-C, 265-D Cr.P.C for the purpose of initiation of trial, before framing of charge as ordained to meet the spirit of the law of the land; ii) that the Trial Court is under obligation to fulfill the requirement as stated above, thereafter to frame charge, while minutely looking into the contents of the crime report, statement of the prosecution witnesses under Section 161 Cr.P.C, report under Section 173 Cr.P.C and all other documents appended with the challan with an intent to evaluate whether the criminal act as disclosed has been CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017 14 committed in furtherance of joining hands, which attracts the ingredients of common intention (Section 34 PPC) or common object (Section 148/149 PPC read with the substantive offence), if so, the charge would be framed accordingly; iii) that the Trial Court after recording of evidence, statement of the accused under Section 342 Cr.P.C would provide an opportunity to the accused to lead defence, if any, and further to appear under Section 340(2) Cr.P.C (if he intends to appear) & defence evidence, if any, thereafter, it is obligatory for the courts to give judgment with definite finding qua the element of common intention or common object with reference to the substantive offence; iv) that the Court proceeding with the matter, if reaches to the conclusion that the offence committed is an individual liability then the provision of Section 302(c) PPC would be squarely applicable and each accused would be dealt with according to the gravity of allegation, if any? Note: The Trial Court while rendering such finding has to disclose judicial reasoning. 16. As far as the matter before us is concerned, elaborate findings are clearly disclosed above. As a consequence, we convert Criminal Petition Nos. 1371 & 1651- L/2016 into appeals, allow them, set aside the impugned judgments of both courts below while remanding the matter to the Trial Court for a limited purpose to re-write the judgment on the basis of existing judicial record within two months strictly in accordance with law and the guidelines given above. A copy of this judgment shall also be sent to the Registrars of all High Courts for its onward circulation to the Hon’ble Judges for future guidance. CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017 15 17. Since, the main petition filed by the petitioners- convicts has been converted into appeal, allowed and remanded, Criminal Miscellaneous Application No. 1704 of 2017 for suspension of sentence has become infructuous and is disposed of accordingly. JUDGE JUDGE I am not in agreement with the findings of my learned brother for which I have recorded my own findings separately. JUDGE Islamabad, the 26th of November, 2020 Approved For Reporting Khurram CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017 16 MAZHAR ALAM KHAN MIANKHEL, J-. I have the privilege to go through the judgment authored by my learned brother Sayyed Mazahar Ali Akbar Naqvi, J. The facts, circumstances, material and evidence, available on the record, do not appeal me to concur with the opinion given by my learned brother. Repetition of some facts would be necessary to express my mind. 2. As per the FIR, the incidence, before us, comprised of two episodes. The complainant Muhammad Ilyas (PW.4) and Muhammad Shahid (PW.5), on 05.08.2011 at 8:00 a.m. present in their fields to irrigate their lands on their notified time and turn, when noticed reduction in the flow of water, went on to check the same. They noticed a diversion of water to their own lands by Munir Ahmad etc. (all five in number, named in the FIR). When they were asked to remove the diversion and allow them to irrigate their lands. This interruption made them furious and the petitioner Bashir Ahmed alias Shada gave them blows with handle of a hatchet and stopped them to remove the breach and caused them injuries. The second episode of the occurrence was at 11:30 a.m., the same day, when Muhammad Ishaq (deceased) going ahead of complainant Muhammad Ilyas (PW.4) and Muhammad Shahid (PW.5), his cousin, (both injured PWs), to mend the breach and to re-divert the water to their lands, whereupon, Munir Ahmed petitioner, armed with rifle, Naseer Ahmad and petitioner Bashir Ahmed alias Shada, both possessing firearm, present on the roof top of their ‘Dera’ confronted them from their ‘Dera’. Munir Ahmed fired a straight shot at Muhammad Ishaq (deceased), hitting him on the right side of the clavicle whereas the witnesses escaped the straight fire shots by Naseer Ahmad and Bashir Ahmed alias Shada co-accused. The complainant (PW.4) was CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017 17 medically examined. The medical officer found two bruises and one swelling on his person with a fracture of metacarpal bone. Muhammad Shahid (PW.5) was noted with a swelling with no bone lesion whereas the solitary fire shot attributed to the petitioner Munir Ahmed proved fatal to Muhammad Ishaq (deceased). 3. The learned trial Judge, after conclusion of the trial acquitted the accused Bashir Ahmed alias Shada and Naseer Ahmad from the charge of murder leveled against both of them by holding that no case of common intention or common object against them was made out and recorded conviction of Munir Ahmad, petitioner only, for the murder of Muhammad Ishaque and sentenced him to death. Whereas Bashir Ahmed alias Shada was convicted and sentenced for causing injuries to both the PWs, Muhammad Ilyas (PW-4) and Muhammad Shahid, (PW-5). Rest of the three accused Naseer Ahmad, Asif and Rashid were given clean chit of acquittal. The acquittal of the above named accused and acquittal of the two from the charge of murder for want of proof of common intention or common object was neither challenged by way of appeal by the State or the complainant. Even any appeal for enhancement of sentence of Bashir Ahmed alias Shada, petitioner, was also not filed. This aspect of the case reflects that State and complainant party was fully satisfied with the judgment of the trial court. 4. The High Court, on appeal, maintained the conviction of Munir Ahmed for the murder of Muhammad Ishaque, however, altered his sentence of death into imprisonment for life whereas the conviction and sentence of petitioner Bashir Ahmed alias Shada for causing injuries to PWs was maintained. 5. Both the convicts filed the instant petition for leave to appeal against their convictions. We had heard the CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017 18 learned counsel for the petitioners as well as the learned D.P.G. Punjab for the State assisted by the learned counsel for the complainant and had gone through the available record. The perusal of the judgment handed down by my learned brother reflects that the fate of the convicts, on the available evidence, has not been decided and the matter has been remitted back to the trial Court by setting aside the judgments and the convictions and sentences recorded by the trial Court and the High Court. So, I would also not like to express my mind regarding fate of the case and would try to confine myself to see as to whether remand of the case, in the given circumstances, is justified or not. It is worth to be noted that there were five accused in all, three of whom were acquitted (specially the accused Naseer Ahmad with the similar role of firing) by the trial Court and the present two petitioners were convicted. There was no appeal, as stated above, against the acquittal of the three accused and as such, the same has attained finality, which at present, cannot be called in question. The criminal jurisprudence so far established is that presumption of innocence is significantly added to the acquittal. The scope of interference with such presumption is very narrow specially when it has attained finality as in the present case. The complainant has only filed a criminal petition for leave to appeal (Crl.P.L.A. No.1651-L/2016) against alteration of sentence of Munir Ahmad from death to life imprisonment by the court of appeal and sought restoration of sentence of death awarded by the trial court. This judgment of remittance, as noted above, would be only to the extent of present petitioners. The perusal of the record would establish the fact that role of both the convicts qua the murder and the injuries to the PWs. is quite independent. The remand of the case of present two petitioners/convicts itself would be against the norms of justice when three other accused, specifically the accused Naseer Ahmad, with the similar role of firing on PWs CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017 19 as attributed to Bashir Ahmed alias Shada, have been acquitted. The remand of the case has been ordered for considering the case of the petitioners on the touchstone of the common intention/common object of the accused party at the time of commission of the offence. 6. The purpose and application of the provisions of Sections 34 and 149 P.P.C., no doubt, has aptly been explained by my learned brother, which, with due respect, at the most can be considered as an academic discussion but as far as the material and evidence available before this Court is concerned, that does not attract the provisions of Section 34 P.P.C. For ready reference Sections 34 and 149 P.P.C. are reproduced herein below:- “34. Acts done by several persons in furtherance of common intention.- When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. 149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.- If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.” A look at the above quoted provisions of law makes it clear that if a criminal act is done by the several persons in furtherance of their common intention or the offence is committed by any member of an unlawful assembly in prosecution of the common object of that unlawful assembly, then in that case each of such person or any of the member of such assembly would be liable for the commission of criminal act or guilty of that offence. The alleged criminal act should be in furtherance of common intention and not the common CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017 20 intention simpliciter. Mere presence of an accused with an accused who commits the crime would not constitute his common intention unless there is an evidence referring to the criminal act of that accused committed in furtherance of common intention with the other accused. The role of firing (criminal act) though was attributed to Naseer Ahmad and Bashir Ahmed alias Shada (one of the petitioner before us) but the trial Court not only acquitted both the said accused but also held that there was no evidence of common intention. This finding of trial Court has also attained finality. There becomes no legal or moral justification for remand of the case of one of them on matter which has already been decided and attained finality. 7. After perusal of the entire evidence, the factum of common intention under the provisions of Section 34 P.P.C. is not made out. In both of the episodes of the occurrence, it appears to be the individual acts of each accused which took place at the spur of the moment in a reaction of complainant party’s request for mending the breach of water channel. Causing of injuries to the PWs and the murder of Muhammad Ishaque took place in two separate and independent episodes. In the first episode, the other accused did not commit any criminal act with their common intention and they did not cause any injury to PW.4 and PW.5, who, being empty handed, were at their mercy. No such overt act falling in the definition of criminal act was even attributed to them in the F.I.R. Similarly, single fire shot has been attributed to Munir Ahmed convict at the person of Muhammad Ishaq (deceased) whereas the other accused Naseer Ahmad and Bashir Ahmed alias Shada fired at complainant Muhammad Ilyas (PW.4) and Muhammad Shahid (PW.5) who miraculously escaped but such a story can hardly be believed. Had they having the common intention to commit the murder of the PWs. who were at their mercy and reportedly empty handed, could have CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017 21 easily achieved their intention of the criminal act. The trial Court by not believing their version, has acquitted both Naseer Ahmad and Bashir Ahmed alias Shada from the charge of murder and as such there was no appeal by the complainant party against their said acquittal despite the fact that they had the legal advice available to them during the trial and thereafter. This very act of the complainant party further suggests that they were fully satisfied with the decision of the trial Court. The petitioner Bashir Ahmed alias Shada, as earlier said, was convicted for his criminal act of causing injuries to the PWs. and was convicted to that extent only. The trial Court, before whom the evidence is recorded and who also notices the demeanor of the witnesses, has categorically held “there is no incriminating material to prove the factum of common object or common intention. Therefore, offence of committing murder against accused Bashir alias Shada and Naseer is not made out.” Neither the prosecution nor the complainant has challenged this verdict of acquittal of charge of murder of the above two in appeal. Similar were the findings of the appellate Court. 8. The question of common intention and common object has been dilated upon by this Court and the High Courts in a number of cases and no aspect is left untouched. I would like to make reference to some of such important cases as to how the question was dealt with by our Courts. “ (1994 S C M R 1327) MANZOOR HUSSAIN and 4 others---Appellants versus THE STATE---Respondent We are, therefore, of the opinion that the occurrence is not the result of pre-concert and premeditation but occurred on account of sudden flare up. In the case of Bashir Ahmad v. CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017 22 The State (PLD 1988 SC 86), this Court observed that wherever there is doubt about application of sections 34, 107 and 149, P.P.C. it is always necessary not to apply either of these provisions which seek conviction on vicarious liability only. In another case Misbahuddin v. The State PLD 1983 SC 79 it was held that in case of sudden quarrel question of furtherance of common intention would not arise. Consequently, the provision of section 149, P.P.C. was not attracted to the facts of the present case or at least its application was not free from doubt. We are, therefore, not inclined to maintain conviction and sentence of Mumtaz Hussain, Mulazim Hussain and Manzoor Hussain under section 302/149, P.P.C., however, they are responsible for their individual acts for causing injuries to Muhammad Hussain P.W. 8 with their respective weapons of knives and daggers. …… (1992 S C M R 1983) Ch. MUHAMMAD YAQOOB and others---Appellants versus THE STATE and others-Respondents 24. Mr. Munir Piracha, learned counsel for two of the appellants, adopted Mr. Abid Hassan Minto's arguments and, without prejudice to his contentions on merits, in the alternative, has vehemently urged that in the present case, the Courts below erred in pressing into service section 34 of the Pakistan Penal Code, as, on the basis of the evidence on record, common intention to commit the offence in question, cannot be attributed to the appellants/convicts. According to him the appellants/convicts had no knowledge of the factum that they would be forced to commit the offence till the time they were forced to kill the deceased at the place of Wardat, and as they were told at the police station that the deceased were to be shifted to Khipro Jail. It is correct that the accused/convicts in their confessions, and the approver in his statement, have stated that they were told at the police station, that the deceased were to be taken to Khipro Jail, but common intention could be CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017 23 formed at the spur of the moment, as had been held by this Court in the case of Muhammad Akbar and two others v. The State (PLD 1991 SC 923), wherein after referring to the relevant case-law on the above question, following conclusion was drawn:---- "From the above-referred cases, it is evident that a joint action by a number of persons is not necessarily an action performed with a common object, but it may be performed on the spur of the moment as a reaction to some incident and such a case could fall within the ambit of section 34, P.P.C. However, it may be pointed out that section 34, P.P.C. contemplates an act in furtherance of common intention and not the common intention simpliciter and that there is a marked distinction between similar intention and common intention and between knowledge and common intention…. (P L D 1991 Supreme Court 923) MUHAMMAD AKBAR and 2 others-- Appellants versus THE STATE-- Respondent 12. From the above-referred cases, it is evident that a joint action by a number of persons is not necessarily an action performed with a common object, but it may be performed on the spur of the moment as a reaction to some incident and such a case would fall within the ambit of section 34, P.P.C. However, it may be pointed out that section 34, P.P.C. contemplates an act in furtherance of common intention and not the common intention simpliciter and that there is a marked distinction between similar intention and common intention and between knowledge and common intention. It may also be observed that mere presence of an accused at the place of incident with a co-accused who commits offence may not be sufficient to visit the former with the vicarious liability, but there should be some strong circumstance manifesting a common intention. Generally common intention inter alia precedes CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017 24 by some or all of the following elements, namely, common motive, pre-planned preparation and concert pursuant to such plan. However, common intention may develop even at the spur of moment or during the commission of offence as pointed out hereinabove. Conversely common intention may undergo change during the commission of offence. …… (P L D 1988 Supreme Court 86) BASHIR AHMAD and others--Petitioners versus THE STATE--Respondent …… The next question regarding their common intention with Bashir and whosoever the other was with him in the strangulation, suffice it to state that the same also is not free from doubt. And whenever there is doubt about application of Sections 34, 107 and 149 PPC it is always necessary not to apply either of these provisions, which seek conviction on vicarious liability only. Why it is in doubt in this case whether section 34 is applicable is not far to seek….. …… (1984 S C M R 1069) SAEE AND OTHERS-Appellants Versus THE STATE-Respondent ...... .......The learned Judges in the High Court have not created any such distinction in the two groups but have held that Muhammad Saee alone had the intention of causing the death of Asghar Ali, fired at him and in fact caused the death of Asghar Ali. It was not in the prosecution of the common object of the unlawful assembly. Similarly, his four other companions who were found to have fired and injured CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017 25 or given hatchet blows to the other witnesses were found not have done so in prosecution of the common object but with the common intention and for that reason their conviction was recorded under section 307/34, P. P. C. on four counts..... ...... (P L D 1972 Lahore 19) ATHAR KHAN AND 2 OTHERS-Appellants versus THE STATE-Respondent ...... In Fazzo Khan and others v. Jatto Khan and another (1) Sir Gorge Clause Rankin, Kt. Chief Justice and Graham, J., held that :- "To attract the operation of section 34, Penal Code, and fix constructive guilt on each of the several accused under that section, there must be participation in action, with a common intention, although the different accused might have taken different parts; and unlike under section 149 before any of them can be convicted for an offence read with section 34, the Court must arrive at a finding as to which of the accused took what part, if any, in furtherance of the common intention. A conviction without such finding is illegal." ...... (1970 S C M R 780) MUHAMMAD AZAD AND 6 OTHERS-Appellants versus THE STATE-Respondent …… ………The contention that these six persons can only be held responsible on the evidence, for the consequences of their individual acts is obviously untenable, since the CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017 26 attacks upon Tikka Khan, Abdul Aziz and Bhag Ali are clearly proved to have been the concerted work of the persons who have been named above, acting in groups. The application of section 149, P. P. C. in the circumstance of the case may not be entirely appropriate, for, as has been seen already, the indications are that the injuries of the individual members of the complainant-party were not the result of a massed attack by four hundred persons on four hundred others, but the attacks on these persons were included in a number of sporadic assaults, and they cannot be regarded safely otherwise than in isolation from each other. But joint responsibility of the nature for which provision is made in section 34, P. P. C. clearly attaches to those who joined in the attack upon a particular individual, to the extent that his injuries were the reasonable and natural consequence of the attack. …… (1924) L.R. 52 I.A. 40) Appellants: Barendra Kumar Ghosh Vs. Respondent: The King-Emperor …… ……There is a difference between object and intention, for, though their object is common, the intentions of the several members may differ and indeed may be similar only in respect that they are all unlawful, while the element of participation in action, which is the leading feature of Section 34, is replaced in Section 149 by membership of the assembly at the time of the committing of the offence. Both sections deal with combinations of persons, who become punishable as sharers in an offence. Thus they have a certain resemblance and may to some extent overlap, but Section 149 cannot at any rate relegate Section 34 to the position of dealing only with joint action by the commission of identically similar criminal acts, a kind of case which is not in itself deserving of separate treatment at all. ……” CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017 27 9. By keeping in mind the evidence and the material available on the record and in view of the judgments, referred to above, would make it absolutely clear that element of common intention is not proved and the Courts below have properly dealt with the matter. Sending back the case of the petitioners after about ten years would, in my humble opinion, be nothing short of increasing their agonies and anguish. By sending their case back to dilate upon the same evidence and the issue, which has already been dealt with by the Courts below and the complainant party has also accepted the same and never raised such issue by questioning the verdicts of the Courts, would serve no purpose and not advisable under the law, specially, when the other three accused have earned an acquittal to its finality. Sending back the case of the two would also be against substantial justice. Besides the above, I am also unable to agree with issuance of guidelines/directions by my learned brother for circulation to all the Courts. No doubt this Court is the highest Court of appeal in the country and the law laid down by this Court is binding on all the Courts but issuance of directions to the subordinate Courts to follow a particular course of action in criminal matters is not the domain of this Court as this would be considered by the courts below to be binding as per the provisions of Article 189 of the Constitution of the Islamic Republic of Pakistan, 1973 (the ‘Constitution’). In my opinion, every Judge is independent and autonomous within its allocated sphere of jurisdiction and such direction would amount to interference in their independence which is not permissible under the law. The Appellate Court indeed can uphold, modify or set aside the judgment of the lower fora but such guidelines/directions cannot be held as an “act in aid” of the Supreme Court as CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017 28 contemplated in Article 190 of the Constitution. Such guidelines/directions being supervisory in nature would also amount to an encroachment upon the supervisory powers of the High Court vesting in it under Article 203 of the Constitution. 10. Since fate of the petitions, on the merits, have not been announced, so, in my humble opinion, the petitions be fixed for rehearing and be decided on the basis of available record and the law. The above were the reasons for my additional note. Judge CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017 29 ORDER OF THE COURT By majority of two to one (Mazhar Alam Khan Miankhel, J dissenting), Criminal Petition Nos. 1371 & 1651-L of 2016 are converted into appeals, allowed and the impugned judgments of the learned High Court as of the learned Trial Court are set aside and the matter is remanded back to the learned Trial Court to conclude the trial in the light of this judgment within a period of two months whereas Criminal Miscellaneous Application No. 1704 of 2017 for suspension of sentence is disposed of as having become infructuous. JUDGE JUDGE JUDGE

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE UMAR ATA BANDIAL, ACJ MR. JUSTICE QAZI MUHAMMAD AMIN AHMED MR. JUSTICE MUHAMMAD ALI MAZHAR Criminal Petition No.138-Q of 2020 (Against the judgment dated 21.10.2020 passed by the High Court of Balochistan in Cr. A. nO.168/2019) Javed Ahmed and others …Petitioner(s) Versus The State …Respondent(s) For the Petitioner(s) : Mr. Kamran Murtaza, Sr. ASC (video link Quetta) For the Respondent(s) : Mr. Abdul Baqir Shah, ASC Date of Hearing : 23.08.2021 O R D E R QAZI MUHAMMAD AMIN AHMED,J.-In the backdrop of a dispute over property, Noor-ud-Din (PW-2) was thrashed, inside his shop, located within the precincts of Police Station City Quetta, at 4:25 p.m. on 23.5.2019 by Javed Ahmed, since dead, Muhammad Aslam, Muhammad Saleem and Khalil, no other than his cousins in first degree. A police surgeon noted multiple injuries that included a fracture of left forearm. Spot inspection by Muhammad Touseef SI (PW-7) confirmed damage caused by the intruders inside the outlet. Upon conclusion of trial, a learned Magistrate vide judgment dated 05.12.2019 returned a guilty verdict; the assailants were burdened with monetary compensation for causing injuries to the complainant, additionally sentenced for criminal trespass and concomitant damage to the property; the learned Additional Sessions Judge acquitted the petitioners from the latter charge, however, maintained the remainder of convictions, upheld by the High Court of Balochistan vide Criminal Petition No.138-Q of 2020 impugned judgment dated 21.10.2020, vires whereof, are being assailed, after deposit of Daman under protest on the grounds that prosecution had cast a wider net to implicate every able bodied opponent, engaged with the complainant in a civil dispute; that two injuries with a complaint of pain hardly justified en bloc conviction of all the petitioners, particularly after prosecution’s failure on the charge of damage to the property in the court of session; learned counsel has also referred to a discrepancy in the deposition of police surgeon regarding date of examination to argue that flawed evidence clamoured for clean acquittal as the pensionary benefits of Javed Ahmed deceased are at stake. 2. We have heard the learned counsel on video link and perused available record with his assistance to note that on the common ground of bad blood in the close family, the complainant was taken on by the petitioners inside his shop, a position that went un-rebutted in the evidence furnished by the Investigating Officer. Though acquitted under sections 447, 427, nonetheless, the site plan showed broken pieces of glass, unmistakably suggesting a brawl inside the outlet. An erroneous date given by the police surgeon is not in line with the entry in the medico legal certificate that unambiguously confirms the date of incident as 23.05.2019. The witnesses are in a comfortable unison and have rightly been believed by the Courts below. Possible loss of pensionary benefits to the family of the deceased petitioner indivisibly linked with the co-convicts, being a conscionable consequence of the crime, hardly furnishes a ground to separately overturn his conviction, based upon a judicial consensus. Petition fails. Leave declined. ACJ Judge Islamabad 23.08.2021 Azmat/* Judge

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MAQBOOL BAQAR MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI MR. JUSTICE JAMAL KHAN MANDOKHAIL CRIMINAL PETITION NO. 1384 OF 2021 (On appeal against the order dated 25.10.2021 passed by the Peshawar High Court, Peshawar in Cr.MBA No. 3012-P/2021) Abdul Saboor …Petitioner(s) VERSUS The State through A.G. KPK and another …Respondent(s) For the Petitioner(s): Ch. Riasat Ali Gondal, ASC For the Respondent(s): Mr. Abdul Fayyaz Khan, ASC For the State: Mr. Zahid Yousaf Qureshi, Addl. A.G. Mr. Ziaullah, I.O Date of Hearing: 25.01.2022 ORDER SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through the instant petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed the order dated 25.10.2021 passed by the learned Single Judge of the Peshawar High Court, Peshawar, with a prayer to grant post-arrest bail in case registered vide FIR No. 678 dated 19.08.2020 under Section 489-F PPC at Police Station University Town, Peshawar, in the interest of safe administration of criminal justice. 2. Briefly stated the allegation against the petitioner is that to settle some business related transactions, he issued a cheque amounting to Rs.1,00,000,00/- to the complainant, which was dishonored when presented to the Bank. 3. At the very outset, it has been argued by learned counsel for the petitioner that the petitioner has been falsely roped in this case against the actual facts and circumstances. Contends that Criminal Petition No. 1384/2021 -: 2 :- the cheque in question was given as a security, which was dishonestly presented to the Bank. Contends that the dispute regarding payments is a business dispute between the parties, which involves a factual controversy and the same is to be determined during trial proceedings. Contends that the petitioner is behind the bars for the last six and half months and his further incarceration would not serve any purpose to the prosecution. Contends that maximum punishment provided under the statute for the offence under Section 489-F PPC is three years and the same does not fall within the prohibitory clause of Section 497 Cr.P.C. and grant of bail in such like cases is a rule and refusal is an exception. 4. On the other hand, learned Law Officer assisted by learned counsel for the complainant defended the impugned order whereby post-arrest bail was declined to the petitioner. They contended that the petitioner did not deny the signatures on the cheque and he has deprived the complainant of a huge amount, therefore, he does not deserve any leniency by this Court. 5. We have heard learned counsel for the parties at some length and have perused the available record with their assistance. As per the contents of the crime report, the petitioner was running a business of poultry; he borrowed some amount from the complainant and to settle the same, he issued the cheque in question to the complainant, which has been dishonored. It is an admitted position that the petitioner is behind the bars for the last six and half months whereas the maximum punishment provided under the statute for the offence under Section 489-F PPC is three years and the offence does not fall within the prohibitory clause of Section 497 Cr.P.C. It is settled law that grant of bail in the offences not falling within the prohibitory clause is a rule and refusal is an exception. This Court in Muhammad Tanveer Vs. The State and another (PLD 2017 S.C 733) has held that “once this Court has held in categorical terms that grant of bail in offences not falling within the prohibitory limb of section 497, Cr.P.C. shall be a rule and refusal shall be an exception then the Courts of the country should follow this principle in its letter and spirit because principles of law enunciated by this Court are constitutionally binding on all Courts Criminal Petition No. 1384/2021 -: 3 :- throughout the country including the Special Tribunals and Special Courts.” Prima facie Section 489-F of PPC is not a provision which is intended by the Legislature to be used for recovery of an alleged amount. It is only to determine the guilt of a criminal act and award of a sentence, fine or both as provided under Section 489-F PPC. On the other hand, for recovery of any amount, civil proceedings provide remedies, inter alia, under Order XXXVII of CPC. At this stage, only a tentative assessment of the matter is required and we cannot presume dishonesty on the part of the petitioner as any such determination would prejudice his right to a fair trial guaranteed by the Constitution of Islamic Republic of Pakistan, 1973. Liberty of a person is a precious right which cannot be taken away without exceptional foundations. The law is very liberal especially when it is salutary principle of law that the offences which do not fall within the prohibitory clause, the grant of bail is a rule while its refusal is mere an exception. By following the aforesaid principle and taking into consideration all the facts and circumstances stated above, we are of the view that the case of the petitioner squarely falls within the ambit of Section 497(2) Cr.P.C. entitling for further inquiry into his guilt. 6. For what has been discussed above, we convert this petition into appeal, allow it and set aside the impugned order dated 25.10.2021. The petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs.10,00,000/- with one surety in the like amount to the satisfaction of learned Trial Court. JUDGE JUDGE JUDGE Islamabad, the 25th of January, 2022 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI MR. JUSTICE MUHAMMAD ALI MAZHAR MR. JUSTICE ATHAR MINALLAH CRIMINAL PETITION NO. 1392 OF 2022 (On appeal against the order dated 05.09.2022 passed by the High Court of Sindh, Circuit Court Hyderabad in Criminal Bail Application No. S- 760/2022) Muhammad Nawaz @ Karo … Petitioner Versus The State …Respondent(s) For the Petitioner: Malik Altaf Hussain Kandawal, ASC For the State: Mr. Zafar Ahmed Khan, Addl. P.G. Mr. Nabi Bux, SI For the Complainant: Mr. Junaid Iftikhar Mirza, ASC Syed Rifaqat Hussain Shah, AOR Date of Hearing: 08.12.2022 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through the instant petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed the order dated 05.09.2022 passed by the learned Single Judge of the learned High Court of Sindh, Circuit Court Hyderabad, with a prayer to grant post-arrest bail in case registered vide FIR No. 05/2022 dated 11.05.2022 under Sections 395/342/506-II PPC at Police Station Thebath, District Jamshoro, in the interest of safe administration of criminal justice. 2. Briefly stated the allegation against the petitioner is that he along with co-accused while armed with firearm robbed Toyota Corolla car of the complainant along with cash amounting to Rs.65000/- and a driving license. Criminal Petition No. 1392/2022 2 3. At the very outset, it has been argued by learned counsel for the petitioner that the petitioner has been falsely roped in this case against the actual facts and circumstances. Contends that the crime report was lodged after an inordinate delay of more than nine months for which no plausible explanation has been given. Contends that during investigation, no incriminating material was recovered from the petitioner, which could connect him with the commission of the crime. Contends that the learned High Court while declining bail to the petitioner has not followed the guidelines issued by this Court for the safe administration of criminal justice, therefore, the same may be set at naught and the petitioner may by released on bail. 4. On the other hand, learned Law Officer assisted by learned counsel for the complainant vehemently opposed the petition. It has been contended that although the crime report was registered with an inordinate delay of more than nine months but there was no mala fide on the part of the complainant. It has been contended that the complainant was himself trying to find the robbed property and when he came to know that it was the petitioner who robbed his car, he approached him but the petitioner kept him on false hopes, thereafter, he lodged the crime report. 5. We have heard learned counsel for the parties at some length and have perused the available record with their able assistance. As per the contents of the crime report, on 26.07.2021 the petitioner along with co-accused while armed with firearms robbed Toyota Corolla car of the complainant along with Rs.65000/- and a driving license. However, the formal crime report for the same was lodged on 11.05.2022 after a lapse of nine months and sixteen days. The only explanation given by the complainant is that he was himself trying to find the robbed property. When he got to know that it was the petitioner who has allegedly robbed his car, he approached him to return his property and on his refusal he lodged the crime report. We are afraid, this explanation cannot be accepted. The record is silent as to on which date, the complainant got the information and when did he approach the petitioner. Criminal Petition No. 1392/2022 3 There is also nothing on record to indicate as to why the petitioner kept mum for such a long period of time and did not even bother to inform the Police. We have been informed that no recovery has been affected from the petitioner despite of the fact that he remained with the police on physical remand for a considerable period of time. So far as ‘criminal intimidation’ is concerned, the same has been defined in Section 503 PPC. A bare perusal of this provision of law makes it clear that whenever an overt act is materialized and ended into an overt act, the provision of Section 506(ii) PPC would not be applicable and the only provision which will remain in the field is the overt act, which is committed in consequence of criminal intimidation. The petitioner is behind the bars for the last more than five months. This court has time and again held that liberty of a person is a precious right, which cannot be taken away unless there are exceptional grounds to do so. Merely on the basis of bald allegations, the liberty of a person cannot be curtailed. In these circumstances, the petitioner has made out a case for bail as his case squarely falls within the purview of Section 497(2) Cr.P.C. entitling for further inquiry into his guilt, which even otherwise does not fall within the prohibitory clause. Grant of bail in such like cases is a rule whereas refusal is mere an exception. 6. For what has been discussed above, we convert this petition into appeal, allow it and set aside the impugned order dated 05.09.2022. The petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs.100,000/- with one surety in the like amount to the satisfaction of learned Trial Court. JUDGE JUDGE JUDGE Islamabad, the 8th of December, 2022 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mushir Alam Mr. Justice Yahya Afridi Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.14-Q of 2021 (Against the order dated 31.12.2020 passed by the High Court of Balochistan in Crl. Appeal No.323 of 2020) Naseem Khan …Petitioner(s) Versus The State …Respondent(s) For the Petitioner(s): Mr. Najeeb Ullah Kakai, ASC For the State: Mr. Abdul Baqar Shah, Addl. Prosecutor General, Balochistan Date of hearing: 31.03.2021. ORDER Qazi Muhammad Amin Ahmed, J.- Riding on a bike, the petitioner was surprised by a contingent of Crime Investigation Agency Pashin with 3-k.g. of cannabis, wrapped in three separate packets, concealed beneath the driving seat, on 7.9.2002; along with the contraband, he was handed over to the local police; a learned Additional Sessions Judge at Pashin, returned him a guilty verdict; convicted under clause (c) of section 9 of the Control of Narcotic Substances Act, 1997, he was sentenced to 3-years R.I. with a direction to pay fine, pre-trial period inclusive, upheld by the High Court of Balochistan vide impugned judgment dated 31.12.2020, vires whereof, are being assailed primarily on the ground that notwithstanding, prosecution’s case that the raiding party secured sample from each packet, the forensic report relied upon by the prosecution purports a forensic analysis from one sample of 5 grams to confirm the narcotic character of the contraband. It is additionally argued that the petitioner, an errant youth in his first misadventure, deserves in circumstances a benevolent opportunity to reform himself so as to rehabilitate in mainstream life to become a useful member of the society, a possibility obstructed by his continuous stay in prison. Criminal Petition No. 14-Q of 2021 2 2. Heard. Record perused. 3. Though not specifically pleaded, the petitioner figures somewhat in the adolescent interregnum with no past history to his discredit; prosecution’s claim of possession of 3 k.g. of cannabis notwithstanding, the forensic report unambiguously refers to receipt of single sample of 5 grams. Purpose of administration of criminal justice is to ensure that majesty of law reigns supreme with peace and equilibrium in the society, it is not designed to wreak vengeance; it must provide opportunity to the errant to possibly reform himself so as to rejoin mainstream life as a useful member thereof. Prosecution’s reliance upon a single consolidated sample instead of dispatching three separate samples from each bag brings petitioner’s case within the purview of clause (b) of the section ibid and, thus, a corresponding reduction in his sentence is an option most conscionable in circumstances. Consequently, petitioner’s sentence is reduced to already undergone by him with reduction in fine to Rs.5000/- or to undergo two months SI in the event of default. Petition is converted into appeal and partly allowed. Judge Judge Judge Islamabad, the 31st March, 2021 Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmad Malik Mr. Justice Sardar Tariq Masood Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.140-P of 2014 (Against the judgment dated 15.10.2014 passed by the Peshawar High Court, Peshawar in Criminal Appeal No.207 of 2011). Nazeer Khan …Petitioner(s) VERSUS The State and another …Respondent(s) For the Petitioner(s) : Mr. M. Amjad Iqbal, ASC For the State : Mr. Anis M. Shahzad, ASC Date of Hearing : 10.06.2019 JUDGMENT Qazi Muhammad Amin Ahmed, J.- In the wake of absconsion, commencing from January 1992, Nazeer Khan, petitioner, accused in a case of homicide, was finally tried by a learned Additional Sessions Judge at Kohat, in the year 2011; he stood convicted and sentenced vide judgment dated 15.3.2011, upheld by a learned Division Bench of the Peshawar High Court vide impugned judgment dated 15.10.2014. On the fateful day i.e. 22.1.1992 at about 1.30 p.m., over a dispute of land, the petitioner shot Nisar Muhammad, whereas his brother, Jan Muhammad, targeted Ghaffar Gul, PW; the former succumbed to the injuries leaving behind his last declaration pointed upon petitioner’s culpability; his brother though exonerated from being in the community of intention, nonetheless, was held guilty for murderous assault; he was convicted and sentenced without challenge. Upon Criminal Petition No.140-P of 2014 2 petitioner’s arrest, the same prosecution evidence has been pressed into service to drive home the charge. 2. Though wounded critically, the last declarant was found by the medical officer well within capacity to share details of the incident, a narrative found by us as straightforward and confidence inspiring besides being in harmony with ocular account and medical evidence. Petitioner’s absence from law sans any justification. Given petitioner’s advance age, he has already been dealt with leniently. Impugned judgment being well within the remit of law as well as facts applicable thereto does not call for interference. Petition is dismissed and leave to appeal refused. JUDGE JUDGE Islamabad, the 10th of June, 2019 Ghulam Raza/* JUDGE

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Sajjad Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.143-K of 2020 (Against the judgment dated 07.07.2020 passed by the High Court of Sindh at Karachi in Cr. A. No.615 of 2019) Faheemullah …Petitioner(s) Versus The State …Respondent(s) For the Petitioner(s): Syed Shau-un-Nabi, ASC Ms. Abida Parveen Channar, AOR For the State: Mr. Hussain Bux, Addl. Prosecutor General Sindh Date of hearing: 06.09.2021 ORDER Qazi Muhammad Amin Ahmed, J.- Surprised with 5080 grams of cannabis by a contingent of Police Station Pirabad, the petitioner was sent to Court of Session (West) Karachi; upon indictment, he claimed trial that resulted into his conviction under section 9(c) of the Control of Narcotic Substances Act, 1997; he was sentenced to 7-years 6-months with a direction to pay fine vide judgment dated 30.8.2019, upheld by a Division Bench of the High Court of Sindh vide impugned judgment dated 7.7.2020, vires whereof, are being assailed on the grounds that the High Court as well as the Court of Session, concurrently ran into error by placing implicit reliance on the prosecution’s evidence, inherently flawed and tainted, maliciously produced to secure an unjustified conviction; the bottom line is that a false case was cooked up, through abuse of process of law, to hush up an unauthorized raid on petitioner’s house, during the course whereof, cash, gold ornaments as well as other valuables were taken away by a police mobile, an incident that according to the learned counsel was witnessed by the neighbourhood. The learned Law Officer has faithfully defended the impugned judgment being based upon confidence inspiring evidence. 2. Heard. Record perused. Criminal Petition No. 143-K/2020 2 3. Prosecution case is consistent and straightforward. The petitioner was apprehended during a routine patrol and his arrest along with contraband were incorporated in the daily diary, entry whereof, is placed on record as Exh.3/A; site plan and inspection note also coincide with the details, elaborated in the crime report. These are also consistent with the investigative details. There is nothing on the record that could even obliquely support the plea belatedly taken by the petitioner and, thus, preponderance of prosecution evidence comprising safe custody of contraband, transmission of sample to the office of chemical examiner with a positive report supported by a unison account furnished by the official witnesses remained unscathed during an inconsequently cross-examination. Learned trial Court as well as the High Court concurrently found the prosecution evidence sufficient to successfully constitute “proof beyond doubt”; we on our own independent analysis, in the absence of any material to support the hypothesis canvassed at the bar, have not been able to persuade ourselves to take a different view. Impugned judgment being well within remit of law and inconsonance with the principle of safe administration of criminal justice calls for no interference. Petition fails. Leave declined. Judge Judge Karachi, the 6th September, 2021 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Gulzar Ahmed, CJ Mr. Justice Ijaz ul Ahsan Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.143-K of 2021 (Against the judgment dated 22.10.2021 passed by the High Court of Sindh Karachi in Cr. Bail Application No.S-733 of 2021) Ghulam Qadir …Petitioner(s) Versus The State …Respondent(s) For the Petitioner(s): Ms. Abida Parveen Channar, ASC/AOR with petitioner. For the State: N.R. Date of hearing: 25.11.2021. ORDER Qazi Muhammad Amin Ahmed, J.- Apprehending arrest in a case of murderous assault, Ghulam Qadir, petitioner, unsuccessfully attempted for bail in anticipation thereto; lastly on 22.10.2021 before a learned Judge-in-Chamber of the High Court of Sindh, Circuit Court Hyderabad. According to the prosecution, on the eventful day i.e. 12.8.2021, accompanied by co-accused, each differently armed, the petitioner in the backdrop of a trivial dispute, inflicted a club blow to Manzoor PW while the co-accused targeted Muhammad Ibrahim and Shaman; medico legal reports confirmed receipt of multiple injuries by the witnesses. 3. Pleading denial and innocence, learned counsel for the petitioner contends that it is a case of wider net wherein each able- bodied member of the opponent side has been taken on board to face the rigors of an unjust prosecution, however, she concedes that according to the investigation, henceforth conducted, the Investigating Officer has not yet ruled out his participation in the crime; she has lastly referred to a delay of no less than five days in registration of the Criminal Petition No. 143-K of 2021 2 case to conclude that the intended arrest is not free from the taints of mala fide. 2. Heard. Record perused. 3. Contents of the First Information Report supported by the statements of the witnesses and findings recorded by the Medical Officer run counter to the hypothesis of denial. Though the formal First Information Report was recorded on 17.8.2021, however, the injured with extensive injuries were medically examined under police dockets on 13.8.2021; according to the provisional medico legal certificates, they had reached hospital on 12.8.2021 at 6:00 p.m. just half an hour after the incident and, thus, delay in formal registration of the case, a phenomena hardly unusual, does not raise eyebrows. Even otherwise, in the absence of any apparent mala fide on part of the complainant or the local police, the petitioner cannot claim extraordinary/equitable concession of pre-arrest bail in a criminal case wherein no less than three persons endured multiple injuries, one being an incised wound on the back of neck with exposed bone. Arguments addressed by the learned counsel, being part of post arrest agenda, cannot be attended at pre-arrest bail stage, certainly not a substitute for post arrest bail. The High Court as well as the Court of Session, on the assessment of above referred to material, rightly declined judicial protection to the petitioner. Petition fails. Leave declined. Chief Justice Judge Judge Karachi, the 25th November, 2021 Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE SAJJAD ALI SHAH MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CRIMINAL PETITION NO.1431 OF 2019 (Against the order of the Lahore High Court, Rawalpindi Bench, Rawalpindi dated 11.11.2019 passed in Crl. Misc. No.1780-B/2019) Noor Muhammad … Petitioner Versus The State and another … Respondents For the Petitioner For the Complainant : Malik Waheed Anjum, ASC Syed Rifaqat Hussain Shah AOR Altaf Elahi Sheikh, ASC Mehmood A. Sheikh, AOR For the State : Mirza M. Usman DPG, Punjab Khalid Ahmad SDPO Tariq Mehmood SHO Date of Hearing : 07.05.2020 ORDER SAYYED MAZAHAR ALI AKBAR NAQVI, J:- Petitioner has assailed the jurisdiction of this Court under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 challenging the order of the learned Lahore High Court, Rawalpindi Bench Rawalpindi dated 11.11.2019 with the prayer to grant leave against the order and to release the petitioner on bail in the interest of justice. 2. The petitioner alongwith others was involved in case bearing FIR No.123/2017 dated 25.04.2017, under Section 302, Criminal Petition No. 1431 of 2019. -:2:- 324, 34 PPC, registered with police station Talagang, District Chakwal As per allegation contained in the crime report, it is alleged that the petitioner alongwith his co-accused while armed with hatchet inflicted blow on the head of father of complainant, who succumbed to the injuries. The petitioner applied for post arrest bail before the learned trial court which was dismissed vide order dated 03.10.2019. The order of learned Additional Sessions Judge, Talagang was assailed before learned Lahore High Court Rawalpindi Bench, Rawalpindi through Criminal Miscellaneous No.1780-B/2019 which was decided vide order dated 11.11.2019 while resulting into dismissal of bail application. Hence, the instant petition. 3. At the very outset, it has been argued by the learned counsel for the petitioner that the local police investigated the matter in detail and ultimately found the involvement of the petitioner suspicious, hence, his arrest was deferred under section 169 Cr.P.C. The second investigation was carried out by RIB, Rawalpindi. During the investigation, the participation of the petitioner was also found doubtful and as such the investigating officer has not given a definite opinion qua culpability of the petitioner in the said matter. Contends that third investigation was also carried out by Crime Branch Punjab, however, the petitioner was found involved on the basis of special oath offered in the mosque which is against the spirit of Article 163 of Qanun-e-Shahadat Order, 1984. Further contends that the sole eye witness mentioned in the FIR got recorded his statement thrice under section 161 Cr.P.C. In all three successive statements, he has contradicted his earlier statement, Criminal Petition No. 1431 of 2019. -:3:- hence it looses its credibility as a witness and reduces its value of the statement to nil. The investigating officer recorded the statement of daughter and daughter-in-law of the deceased at a belated stage to strengthen the prosecution case which negates its authenticity. Contends that in the given facts and circumstances, the case of the petitioner is fully covered under section 497(2) Cr.P.C entitling him for concession of bail. 4. On the other hand, learned Law Officer assisted by learned counsel for the complainant has stated that the petitioner is nominated in the crime report with the allegation of inflicting hatchet blow on the head of the deceased, however frankly conceded that the statements of the PWs was recorded on 31.12.2018. Finally, the learned law officer has stated that recovery of hatchet has been affected from the petitioner, hence, he is not entitled for grant of bail. 5. We have heard the learned counsel for the parties and gone through the record. There is no denial to this fact that local police deferred the arrest of the petitioner during the course of investigation in terms of section 169 Cr.P.C. The prosecution being aggrieved applied for transfer of investigation which was entrusted to RIB, Rawalpindi. During the course of investigation carried out by Senior Police Officer, though the investigation was conducted in detail but no definite finding was given regarding the participation of petitioner in the instant case. The investigation in this case was further entrusted to Crime Branch Punjab when the petitioner was found involved in this case on the basis of special oath. It is established principle of law that concept of special oath is in defiance of Article 163 of Qanun-e-Shahadat Order 1984. The same is reproduced as under:- Criminal Petition No. 1431 of 2019. -:4:- 163. Acceptance or denial of claim on oath: (1) ………….. (2) …………… (3) Nothing in this Article applies to laws relating to the enforcement of Hudood or other criminal cases We have also noticed from the record that Khawaja Din Muhammad (PW) has made three successive statements before investigating officers. In all three statements, he has taken somersault while negating each statement whereas last statement was made at a belated stage. The third statement made by said witness before DSP, Investigating Branch was recorded on 10.12.2018 with the delay of one and half year. Similarly, Mst. Amina Bibi and Mst. Imtiaz Fatima introduced eye witnesses of the occurrence also made their statements under section 161 Cr.P.C on 31.12.2018 with the delay of more than one and half year. It is established principle of law that delayed recording of statement of the PW under section 161 Cr.P.C. reduces its value to nil. Reliance in this regard is placed upon case titled as “ABDUL KHALIQ versus THE STATE” (1996 SCMR 1553) wherein it has been held as under:- “---S. 161---Penal Code (XLV of 1860), S. 302/34---Late recording of statement under S. 161, Cr.P.C. ---Value----Late recording of a statement of a prosecution witness under S. 161, Cr.P.C. reduces its value to nil unless delay is plausibly explained”. The contention of the learned counsel for the complainant that recovery has been affected after lapse of more than two years, the value of the same would be resolved by the learned trial court after recording of evidence. It has been stated before us that trial has commenced and two witnesses have already been recorded. We have taken this aspect into consideration and found that if the case of the petitioner comes within the ambit of “further inquiry” under Criminal Petition No. 1431 of 2019. -:5:- section 497(2) Cr.P.C. he cannot be kept behind the bar even for a moment. Otherwise, liberty of a person is a precious right which has been guaranteed in the Constitution of Islamic Republic of Pakistan, 1973. 6. As a consequence of the facts and circumstances surfaced on the record, we are persuaded to grant leave in this case. As such, Criminal Petition is converted into appeal, same is allowed; the petitioner shall be released on bail subject to his furnishing bail bonds in the sum of Rs.5,00,000/- with one surety in the like amount to the satisfaction of the learned trial Court/Duty Judge. 7. Before parting with the order, it has been made clear that the observations made hereinabove are tentative in nature and it has no bearing during the course of proceedings before the learned trial court. Judge Judge Islamabad, 07.05.2020 Approved for reporting Athar

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI MR. JUSTICE MUHAMMAD ALI MAZHAR MR. JUSTICE SHAHID WAHEED CRIMINAL PETITION NO. 1442 OF 2022 (On appeal against the order dated 02.11.2022 passed by the Lahore High Court, Lahore in Crl. Misc. No. 60863-B/2022) Muhammad Tanveer etc … Petitioners Versus The State and another … Respondents For the Petitioner: Mr. Salman Mansoor, ASC a/w petitioners (Via video link from Lahore) For the State: Mirza Muhammad Usman, DPG Mr. Hassan Farooq, DSP Mr. Sadiq, SI Date of Hearing: 01.12.2022 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through the instant petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have assailed the order dated 02.11.2022 passed by the learned Single Judge of the learned Lahore High Court, Lahore, with a prayer to grant pre-arrest bail in case registered vide FIR No. 391 dated 30.08.2022 under Section 440 PPC at Police Station Raja Jang, District Kasur, in the interest of safe administration of criminal justice. 2. Briefly stated the prosecution story as narrated in the FIR is that the complainant had cultivated the crop of mint in his land. On the fateful day and time, the petitioners along with another co-accused entered in his land and plowed and destroyed his entire crop and caused him a loss of Rs.125,000/-. 3. At the very outset, it has been argued by the learned counsel for the petitioners that the petitioners have been falsely roped in this case against the actual facts and circumstances due to mala fides of the complainant in Criminal Petition No. 1442-L/2022 -: 2 :- connivance with local police. Contends that the land, which is the root cause of the occurrence, does not belong to the complainant and the petitioners are in continuous possession of the property since long. Contends that civil litigation over the ownership/title of the property between the parties is pending adjudication and the present case is an attempt to pressurize the petitioners to gain ulterior motives. Contends that Section 440 PPC is not applicable as the petitioners are owners of the property in dispute. Lastly contends that the petitioners deserve to be granted the extraordinary concession of pre-arrest bail in the interest of justice. 4. On the other hand, learned Law Officer has defended the impugned order. It has been contended that the petitioners are specifically nominated in the crime report with a specific allegation of destroying the standing crop of the complainant, therefore, they do not deserve any leniency by this Court. Further contends that the petitioners filed successive bail applications before the learned High Court, which is not admissible under the law. 5. We have heard learned counsel for the parties at some length and have perused the available record with their able assistance. As per the contents of the crime report, the allegation against the petitioners is that they plowed and destroyed the standing crop of mint from the land of the complainant and caused him a loss of Rs.125,000/-. However, it is the stance of the petitioners that the petitioners’ party is owner of the land in question where the occurrence took place; they are in possession of requisite title documents and in-fact the complainant party was the aggressor. It is admitted position that a civil suit for declaration qua the land in question is still pending adjudication before the court of competent jurisdiction, which was filed about one year earlier to lodging of the instant FIR. In this view of the matter, the possibility of false implication just to pressurize the petitioners’ side to gain ulterior motives cannot be ruled out. However, at this stage, we do not want to comment on this aspect of the matter, lest it may prejudice the case of either of the party. It is the Trial Court who after recording of evidence would decide about the guilt of the Criminal Petition No. 1442-L/2022 -: 3 :- petitioners and as to whether Section 440 PPC is applicable or not. Even otherwise, all the six petitioners have been ascribed the role of jointly causing a loss of Rs.125,000/- to the complainant. It is settled law that liberty of a person is a precious right, which has been guaranteed under the Constitution of Islamic Republic of Pakistan, 1973, and the same cannot be taken away merely on bald and vague allegations. The petitioners had earlier filed Crl. Misc. No. 59705-B/2022 seeking the relief of pre-arrest bail before the learned High Court, which was dismissed due to non-appearance of the petitioners on 03.10.2022. However, we have been informed that on that day, the petitioners got late but their counsel had duly informed the court. When the same was dismissed, the petitioners filed the second bail petition on the same day, which has been dismissed vide impugned order. It is now established that while granting pre-arrest bail, the merits of the case can be touched upon by the Court. Reliance is placed on Miran Bux Vs. The State (PLD 1989 SC 347), Sajid Hussain @ Joji Vs. The State (PLD 2021 SC 898), Javed Iqbal Vs. The State (PLD 2022 SCMR 1424) & Muhammad Ijaz Vs. The State (2022 SCMR 1271). Taking into consideration all the facts and circumstances stated above, we are of the view that the case of the petitioners squarely falls within the ambit of Section 497(2) Cr.P.C. entitling for further inquiry into their guilt. 6. For what has been discussed above, we convert this petition into appeal, allow it, set aside the impugned order dated 02.11.2022 and confirm the ad interim pre-arrest bail granted to the petitioners vide this Court’s order dated 24.11.2022. JUDGE JUDGE JUDGE Islamabad, the 1st of December, 2022 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE SAJJAD ALI SHAH MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CRIMINAL PETITION NO. 145-L OF 2021 (On appeal against the order dated 20.01.2021 passed by the Lahore High Court, Lahore in Crl. Misc. No. 33500- B/2020) Dildar Ahmad … Petitioner VERSUS The State etc … Respondents For the Petitioner: Mian Muhammad Saeed, ASC a/w petitioner in person For the State: Ch. Muhammad Sarwar Sidhu, Addl. P.G. For the Respondent (2): Mr. mansoor-ur-Rehman, ASC Date of Hearing: 04.11.2021 ORDER SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through the instant petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed the order dated 20.01.2021 passed by the learned Single Judge of the Lahore High Court, Lahore, with a prayer to grant pre-arrest bail in case registered vide FIR No. 336/2020 under Sections 337-F(v)/34 PPC at Police Station Satrah, District Sialkot, in the interest of safe administration of criminal justice. 2. As per the contents of the crime report, on the fateful day and time, the petitioner was digging pits in the state land and mixing them in his own land. When the complainant forbade the petitioner from doing so, the petitioner got infuriated and called his co-accused and upon their arrival he gave ‘kassi’ blow on the right arm of the complainant, due to which his arm was fractured. 3. At the very outset, it has been argued by learned counsel for the petitioner that the petitioner has been falsely roped in this case against the actual facts and circumstances of this case due CRIMINAL PETITION NO. 145-LOF 2021 2 to connivance of the complainant with local police. Contends that in- fact the complainant party was the aggressor and in the incident five injuries were caused to the petitioner, which were suppressed, and as the complainant is a Police constable, the cross-version of the petitioner could not be registered. Contends that the petitioner was also got medically examined and the factum of receiving injuries on his person has been proved. Contends that the injured-complainant was re-examined by a Medical Board, which has found that so far as the injury on his person is concerned, the possibility of fabrication cannot be ruled out. Contends that the offence does not fall within the prohibitory clause of Section 497 Cr.P.C. and the challan has already been submitted before the Trial Court, therefore, the petitioner deserves the concession of pre-arrest bail. 4. On the other hand, learned Law Officer assisted by the learned counsel for the complainant defended the impugned order whereby pre-arrest bail was declined to the petitioner. They contended that the report of the Medical Board dated 05.08.2020 was challenged before the Provincial Standing Medical Board, Lahore, and it was found that there is no possibility of fabrication so far as the injury ascribed to the petitioner is concerned, therefore, the petitioner does not deserve any leniency by this Court. 5. We have heard learned counsel for the parties at some length and have perused the record with their assistance. As per the contents of the crime report, the allegation leveled against the petitioner is that he caused ‘kassi’ blow on the right arm of the complainant due to which it got fractured/broken. The complainant was firstly medically examined on 29.06.2020 by a Medical Officer of Rural Health Clinic, Satrah, and then was re- examined by the District Standing Medical Board on 05.08.2020, which clearly opined that considering the nature and locale of injury, the possibility of fabrication cannot be ruled out. Although, the case of the complainant was re-examined by the Provincial Standing Medical Board for the third time but on our specific query, we have been informed that the complainant had not appeared before it for his examination for the third time. It is the case of the petitioner that in-fact the complainant party was the aggressor and during the occurrence, the petitioner has also received as many as five injuries CRIMINAL PETITION NO. 145-LOF 2021 3 on different parts of his body, which are detailed in the medico legal report available at page 30 of the paper book. Prima facie the injuries sustained by the petitioner were suppressed. In these circumstances, a prima facie doubt has arisen qua the authenticity of the prosecution’s case. It has been held by the superior courts from time to time that benefit of doubt, if established, can be extended even at bail stage. Reliance is placed on Samiullah Vs. Laiqzada (2020 SCMR 1115) & Muhammad Faisal Vs. The State (2020 SCMR 971). In these circumstances, it seems more appropriate and justiciable to decide the truthfulness of the accusation by the Trial Court after recording of evidence. The challan has been submitted before the Trial Court and the offence does not fall within the prohibitory clause of Section 497 Cr.P.C. Keeping in view all the facts and circumstances, the case of the petitioner squarely falls within the purview of Section 497(2) Cr.P.C. entitling for further inquiry into his guilt. 6. For what has been discussed above, we convert this petition into appeal, allow it, set aside the impugned order dated 20.01.2021 and confirm the ad interim pre-arrest bail granted to the petitioner by this Court vide order dated 04.10.2021. JUDGE JUDGE JUDGE Islamabad, the 4th of November, 2021 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Gulzar Ahmed, CJ Mr. Justice Ijaz ul Ahsan Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.146-K of 2021 (Against the judgment dated 25.10.2021 passed by the High Court of Sindh Circuit Court Hyderabad in Cr. Bail Application No.S-860 of 2021) Ameer Maviya alias Maviya and others …Petitioner(s) Versus The State …Respondent(s) For the Petitioner(s): Mr. Manzoor Ahmed Panhwar, ASC Mr. Ghulam Rasool Mangi, AOR with petitioners. For the State: N.R. Date of hearing: 25.11.2021. ORDER Qazi Muhammad Amin Ahmed, J.- The petitioners, accompanied by 5/6 unknown companions, armed with hatchets and pistols, allegedly mounted assault, in the backdrop of ongoing civil litigation, as a consequence whereof, Parvez Ali and Mashooq Ali PWs, endured multiple injuries; the incident occurred on 18.6.2021 within the precincts of Police Station Taloka Matli, District Badin; the injured were medically examined, purportedly under a police docket, on the same day, however, a criminal case were registered as late as on 01.09.2021, that too, on the intervention of a Justice of Peace. Petitioners’ plea of false implication and intended arrest with the stains of mala fide failed to weigh both with the Court of Session as well as the High Court of Sindh. 2. Heard. Record perused. 3. A detailed plea, argued at inordinate length, hardly merits consideration to even obliquely entertain any hypothesis of mala fide in an incident that presents a usual run of the mill criminal case. Statutory procedures to investigate a crime cannot be held in abeyance Criminal Petition No. 146-K of 2021 2 in a routine without grievously undermining the effective functionality of the investigative process, a step essentially to be taken in the face of justifiably compelling considerations to thwart the process of law in aid of justice, hardly a case in hand. View concurrently taken by the Court of Session as well as the High Court, being well within the remit of law, calls for no interference. Petition fails. Leave declined. Chief Justice Judge Judge Karachi, the 25th November, 2021 Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Sajjad Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.147-K of 2020 (Against the judgment dated .27.08.2020 passed by the High Court of Sindh, Circuit Bench at Hyderabad in Cr. A. No.46 of 2020) Aijaz Ali Rajpar …Petitioner(s) Versus The State …Respondent(s) For the Petitioner(s): Mian Taj Muhammad, ASC For the State: Mr. Hussain Khan Baloch, Addl. Prosecutor General Sindh Date of hearing: 09.09.2021. ORDER Qazi Muhammad Amin Ahmed, J.- Surprised by a contingent of Mitiari police with 1920 grams cannabis, the petitioner was sent to face trial before a learned Addl. Sessions Judge/Special Judge (CNS) at Hyderabad; he claimed trial that resulted into his conviction under section 9(c) of the Control of Narcotic Substances Act, 1997 vide judgment dated 12.11.2019; he was sentenced to 4-years 6-months with a direction for payment of fine. The High Court of Sindh first remanded the case for petitioner’s re-examination under section 342 of the Code of Criminal Procedure, 1898, however, the trial Court again proceeded to convict him with the same quantum of sentence vide judgment dated 10.08.2020, upheld vide impugned judgment dated 27.08.2020, vires whereof, are being assailed on a number of grounds; the bottom line is that a fake recovery was foisted upon the petitioner to settle a previous score with him as his brother had moved an application under section 491 of the Code ibid against the local police, shortly before his unjustified arrest. Without opting to be his own witness to disprove the charge, the petitioner tendered order dated 17.11.2018 purportedly issued by an Addl. Sessions Judge on a motion made by his brother Muhammad Iqbal; the petition was dismissed vide Criminal Petition No. 2-Q of 2021 2 order of even date as a Bailiff/Raid Commissioner deputed by the Court reported the accusation as factually incorrect. The learned counsel alternately argued for reduction of sentence to the period already undergone as, according to him, after inclusion of remissions, the petitioner has served out a substantial portion of his sentence. The learned Law Officer has, however, defended the impugned judgment and also opposed reduction in sentence on the ground of its being within the remit of law. 2. Heard. Record perused. 3. A considerable quantity of the contraband rules out false imposition; reliance upon some documents suggesting an antedated botched attempt in the Court of Session, without entry in the witness- box, does not by itself support the hypothesis of suggested animosity with the police nor does it undermine the preponderance of prosecution evidence, constituting a continuous chain of events that inspiringly framed the petitioner with the charge. Both the recovery witnesses, namely, Qadir Bukhsh (PW-1) and Ali Ahmed, ASI (PW-2) have not even been suggested any past rancor harbored by the raiding party. The trial Judge, after twice appraising the evidence found the witnesses in a unison, a view confirmed by the High Court. Upon our own examination, we have found the witnesses straightforward and consistent, bracing the cross-examination without any embarrassment. Safe custody and transmission of samples accompanied by a positive forensic report clinched the indictment. We have also considered the alternate plea of reduction in the sentence; on account of actual period spent in the prison, do not feel persuaded to grant the request. Scales being in balance with a wage conscionable in circumstances, petition fails; leave declined. Judge Judge Karachi, the 9th September, 2021 Azmat/-

Crl. Petition No. 1485-L of 2019 5 I have the privilege to read the bail refusing order authored by my learned brother Mr. Justice Manzoor Ahmad Malik concurred by Mr. Justice Amin-ud-Din Khan. With utmost respect, I disagree with the reasonings hence, render my own findings. SAYYED MAZAHAR ALI AKBAR NAQVI, J.:- Petitioners have assailed jurisdiction of this Court under Article 185(3) of Islamic Republic of Pakistan, 1973 seeking leave to appeal against the order of Single Bench of Lahore High Court (Multan Bench) dated 30.10.2019 by which ad-interim bail granted vide order dated 14.10.2019 was recalled with a prayer to grant anticipatory bail to the petitioners in the interest of safe administration of criminal justice. 2. As per contents of the crime report bearing FIR No.191/2019 dated 27.05.2019, offences u/s 324, 452, 354, 148, 149 PPC registered with police station Sahuka, Burewala, it is alleged that 18 accused duly mentioned while 12 unknown variously armed came to the house of complainant. They hurled threats of dire-consequences and thereafter resorted to indiscriminate firing. It is further alleged that they trespassed into the house of complainant. Mehmood Khan accused raised "lalkara" upon which Athar Farooq fired with pistol .30 bore hitting Muhammad Mumtaz on right arm whereas fire shot made by Mehmood Khan had hit on right leg of a buffalo. Women folk belonging to complainant, Manzooran Bibi, Rashidan Bibi, Sonia Bibi and Khalida Bibi attracted to spot to rescue, they were given beating as a consequence they suffered injuries, clothes worn by them were also alleged to have been torn which made them naked. Thereafter all Crl. Petition No. 1485-L of 2019 6 the accused again indulged in aerial firing which had hit boundary walls and houses of the complainant party. The motive behind the occurrence is dispute over agricultural land. 3. The crux of the arguments advanced by learned counsel for the petitioners is that there is delay of 12 hours in lodging FIR for which no plausible explanation has been rendered. Contends that the story advanced by the prosecution is not convincing as it does not appeal to reason, rather it has been aggravated by the prosecution. Allegation that 30 persons in furtherance of their common intention had attacked, however, only one person sustained single fire shot on non-vital part seems to be absurd, said injury was ultimately declared under section 337F(iii) PPC, which entail maximum punishment for 3 years as per statue, whereas the rest of the PWs sustained simple injures which are bailable in nature. It is argued that the allegation of entering into the house of complainant was found false during the course of investigation and as such Sec. 452 PPC was deleted, which has not been challenged. It is further apprised that the accused party called in question the medico-legal report of firearm injury being a fabricated document. A petition in this regard was filed which was allowed. Consequently medical board was constituted in pursuance of the order of Judicial Magistrate dated 14.06.2019.The Medical Board summoned injured PW but he escaped appearance on 08.07.2019, 27.07.2019 and 01.08.2019. In this scenario possibility of fabrication as alleged by the accused party cannot be ruled out. The question of vicarious liability in the given circumstances has lost its sting too; hence, same Crl. Petition No. 1485-L of 2019 7 would be resolved after recording of evidence before the learned trial court. 4. On the other hand, learned Additional Advocate General resisted the grant of pre-arrest bail on the ground that 20 empties were recovered and as such recovery of weapon has to be affected. It is a case of common object; therefore, each of them is vicariously liable for the act of others and the petitioners cannot be granted extra-ordinary relief, hence, prayed for its rejection. 5. This Court is conscious of the fact that concept of pre- arrest bail is an extra-ordinary relief, which is limited to rare cases based upon trumped-up charges rather it has to be extended sparingly. To avail such relief, it is obligatory to establish that the prosecution has been launched, which is based upon malafides, ulterior motives and if it is materialized, it would certainly cause irreparable loss to his reputation. The practice to grant ad-interim bail is extension of such a remedy to act as a shield to protect innocent person facing highhandedness of individuals or authority against frivolous litigation. Literally speaking the term ad-interim is a misnomer as it has fallen in practice. It is worth mentioning that ad-interim is not mentioned in any provision rather this idea has been derived from the Order XXXIX Rules 1&2 of Code of Civil Procedure, 1908 (“Code of 1908).The rationale to grant ad-interim bail is though synonymous to passing a prohibitory injunction, however, the concept of ad-interim bail is more precious as compare to prohibitory injunction. In the former, liberty of the person is involved whereas in the latter, only propriety rights are in question. The status of the accused becomes “custodia legis” during the period Crl. Petition No. 1485-L of 2019 8 when ad-interim bail is granted till its final adjudication subject to furnishing of sureties to the satisfaction of the Court. Reliance is placed upon judgment of Full Bench reported as Shabbir Ahmad v. The State (PLD 1981 Lahore 599). The provision of Sec.497(2) Cr.P.C confers powers upon the Court to grant bail during investigation, enquiry or trial subject to an opinion is formed by the Court that material placed before it is not sufficient to establish guilt and it still requires further inquiry into his guilt whereas Section 498 Cr.P.C deals with two situations:- i) The fixation of the amount or bond according to the circumstances; ii) Conferment of powers to grant bail to a person who is not in custody; Although the provision of Section 498 Cr.P.C is neither ancillary nor subsidiary to Section 497 Cr.P.C but is an independent Section, however, bare reading of language of sub-section (2) of Section 497 Cr.P.C provide considerations for grant of bail by virtue of section 497(2) Cr.P.C it practically merged section 497/498 Cr.P.C. into one aspect qua concept of pre-arrest bail persuading it to act conjointly in all fairness. The practice for grant of extra-ordinary relief has passes through transitory period with divergent interpretation qua its scope since its inception, however, law is not static rather it is growing day by day. This Court while handing down a salutary judgment titled as "Meeran Bux vs. The State and another" (PLD 1989 Supreme Court 347) enunciated the concept of pre-arrest bail which was more innovative, liberal, crafted in consonance with the intent of legislature, hence, it has conceptually widened its scope in its entirety, elaborating its concept in the spirit Crl. Petition No. 1485-L of 2019 9 of section 497/498 Cr.P.C. It was reiterated in another judgment of this Court titled as “Syed Muhammad Firdaus and others v. The State (2005 SCMR 784). This Court virtually introduced a broadened mechanism of interpretation to adjudge the element of malafide or malice at the touch stone of merits of the case. In the said case, mentioned above, the accused who was ascribed the injury to the deceased on leg (simple in nature) was granted pre- arrest bail by Sessions Judge which was recalled by learned High Court while exercising suo-motu revisional jurisdiction, however, the order of learned Sessions Judge was restored by this Court while elaborating the principle in the above said terms. 6. Keeping in view the facts and circumstances narrated above, it has made it abundantly clear that while granting pre-arrest bail, Court can consider the merits of the case in addition to element of malafides/ulterior motives which has to be adjudged in the light of law laid down by this Court in the case law stated supra. As a consequence, courts of law are under bounded duty to entertain broader interpretation of “law of bail” while interpreting material placed before it in more liberal manner to arrive at a conclusion which is badly required due to apparent downfall in the standard of investigation. Otherwise liberty of a person is a precious right which has been guaranteed under the constitution of Islamic Republic of Pakistan, 1973. To abridge or curtail the liberty merely on the ground of being involved in a criminal case without adjudging it on merits would certainly encroached upon the right against free life. This right should not be infringed, rather it has to be protected by Crl. Petition No. 1485-L of 2019 10 the act of Court otherwise it may frustrate the concept of safe administration of criminal justice. 7. The accumulative effect of the whole discussion and while seeking guidance from the above referred case law, this Court is of considered opinion that the petitioners have made out a case for grant of extraordinary relief of pre-arrest bail, hence are squarely entitled for the same. As a consequence this petition is converted into appeal and allowed accordingly. Judge Lahore 07.07.2020 Approved for reporting. Athar

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mushir Alam Mr. Justice Yahya Afridi Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.149-K of 2020 (Against the judgment dated 26.08.2020 passed by the High Court of Sindh, Karachi in Criminal Bail Application No.S-100/2020) Kamran Attaullah and another …Petitioner(s) Versus The State …Respondent(s) For the Petitioner(s): Mr. Aamir Mansoob Qureshi, ASC with Kamran Attaullah and Anwar, in person. For the State: Mr. Sajid Ilyas Bhatti, Addl. Attorney General for Pakistan Qaiser Masood, Addl. Director (Law) FIA Khalid Naseem, Inspector, FIA Karachi Shabbir Chandio, Inspector FIA Karachi For the Complainant(s): Barrister Afzal Hussain, ASC along with Hasan Munawar, in person, assisted by Arslan Binyamin, Advocate Date of hearing: 29.09.2020. ORDER Qazi Muhammad Amin Ahmed, J.- Declined both by the learned Special Judge Central-I Karachi as well as a learned Judge-in- Chamber of the High Court of Sindh, petitioners, Deputy and Assistant Directors in the Federal Investigation Agency, respectively, seek leave of the Court for bail in anticipation to their arrest in a case registered with F.I.A./ACC Karachi; they are accused to have received gratification to the tune of rupees 24 millions from one Sheikh Muhammad Munawar, arrayed as accused in a financial scam to Crl. P. No.149-K of 2020 2 subtly defraud Utility Stores Corporation to effect a massive sale transaction through a fake ISO certification. During the inquiry, incriminatory statements of various witnesses were forensically confirmed from the computer CDR and ledgers secured from the custody of co-accused Abdul Qadir Memon, a front man in the transaction; it was on the basis of this comprehensive probe that the petitioners braced the impending prosecution. 2. Heard. Record perused. 3. A detailed parallel story related by the petitioners notwithstanding, nonetheless, they were admittedly at the helm of affairs to call the shot and thus in a position to rescue the complainant from the troubled situation he was trapped; various pieces of evidence including forensic data, beyond susceptibility of human interference, unmistakably suggest a conduct perfidious to the call of their duty hence, prima facie, cognizable. It is by now well settled that the accused in a criminal case cannot be granted anticipatory bail to subvert or undermine investigative procedure/process that essentially include arrest in order to bring the statutory exercise to its logical end for effective and meaningful prosecution of the offence through collection of information/evidence consequent upon arrest. Mala fide, manifestly intriguing upon the intended arrest, is the only justification to suspend or divert the usual course of law, a step most extraordinary by all means; it is not a case in hand. Petition fails. Leave declined. Judge Judge Judge Islamabad, the 29th September, 2020 Not approved for reporting Ghulam Raza/-

\ . IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE MAZHAR ALAM IUMN MIANKHEL MR. JUSTICE JAMAL KHAN MANDOKHAIL Criminal Petition Nos.149-L & 150-L OF 2022 (On appeal against the judgment dated 24.12.2021 passed by the Lahore High Court, La/wi-c in Cr!. Misc.Nos 27057-B of 2021) I Zaheer Ahmad (CrLf-' 149-L122) Shiraz Ahmed 'CrLP.I50-11122 The State, etc. (in both cases) For the Petitioner(s) (in both cases) For the State For the Complainant Petitioner(s) VERSUS Respondent(s) Sh. Usman Karim-ud--Din, ASC Miss Hina Jilani, ASC Mr. Arshad Nazir Mirza, ASC Mirza Mehmood Ahmed, ASC Syed Nayyab Hussain Gerdezi, DAG Mehrnood-uI-Hasan, D.D.(FJA) Mudassar Shah, D.D. (HA) Navced Aslam, S.I. (HA) Mr. Muhammad Shahid Tasawar, ASC Date of Hearing 2104.2022 ORDER fviazliar Atarn Khan IVijankliel, J. Petitioners Shiraz Ahinad and Zaheer Ahmed have impugned the order dated 24.12.2021, whereby bail hi case FIR No. 88 dated 20.06.2019, offence under sections 295-A, 298-C PPC and section 11 of the Prevention of Electronic Crimes Act, 2016, (sections 295-B, 295-C, 34 and 109 PPC added later on) was refused to them by the learned Lahore High Court, Lahore. Cr1s11149-L ISQ-L/2022 2 2. The allegation against the petitioners, as per contents of FIR, is that they in collusion with their co-accused formed a WhatsApp in the name of Sindh Salamat for propagation of Quadiani faith by forwarding material and translation of Holy Quran proscribed by the government. The complainant Muhammad Irfan alleged that the accused had added him up in that WhatsApp soup with ulterior motive. On the basis of material shared by the petitioners and received by the complainant, the taller lodged a complaint with the FIA, whereupon an enquiry was ordered to be conducted into the matter. Per FIR, on 27.062019, the PIA raided the house of Mehmood lqbal 1-Jashmi, co- accused of the petitioners and arrested him while recovering his Cell No. 03009468153. It was found that proscribed translation of Holy Quran was uploaded to Sindh Group from that mobile. Petitioner Shiraz Ahmed was arrested from his village Chak Chatha, Tehsil and District Hafizabad, where he was allegedly busy in his propagation. A cell phone, laptop, proscribed books and certain other material was recovered from him. During investigation of Shiraz Ahmed, he disclosed that it was petitioner Zaheer Ahmed, who provided him banned content through WhatsApp No. 03218808063. Zaheer Ahmed was already confined in Camp Jail, Lahore in some other case. He was arrested in the instant case on 27.02.2021. 3. Learned counsel for the petitioners contend that the very antecedents of the complainant are not clean and he is used to of being an accomplice in cases against the persons belonging to Ahmedis. To substantiate the contention, they referred to case FIR No. 245 of 2037 dated 15.03.2017, wherein the complainant was a witness. They 3 01.,.) 4 9-L. & 150-1/2022 contended that name of petitioner Shiraz Ahmed, though, mentioned in the FIR but no specific role has been assigned to him. According to them, the name of petitioner Zahir Ahmed has not at all been mentioned in the FIR and it seems that both the petitioners have been implicated in this case only due to their religious beliefs. On merits, the learned counsel argued that the enquiry into the matter started way back in 2019 and since then the personal cell phone of co-accused Mehrnood Jqbal Hash'ni remained in the custody of FIA and there was likelihood of its tampering in ordcr to connect and book the petitioners in this case. According to them, Sindh Sa/amat Group was only meant for people belonging to Quadiani faith and there were almost forty other persons as members of the Group; that the petitioner Shiraz Ahmed was just one of the Administrators of the group and he had nothing to do with sharing of proscribed and banned material in that Group because every member of the Group was free to share whatever he wanted. They maintained that mischief of sections 295-A, 295-B and 295-C PPC and section 11 of PECA are not at all attracted to the facts and circumstances of the present case and those sections have been added in the FIR in order to bring the ease of petitioners within prohibitory clause. It was further argued that at the most, section 9 of the Punjab Holy Quran (Printing and Recording) Ac, 2011 is attracted to the case of petitioners. 4. Learned counsel for the complainant and learned Deputy Attorney General, on the other land, opposed the prayer of the petitioners for bail and contended that there was sufficient incriminating material in documentary shape available oil to connect the petitioners with [lie alleged olience; that forensic analysis of the cell I ­I SA 49-L , 150-112022 4 phones and material recovered from them was conducted and the report of the forensic lab fully endorses the case of prosecution against the petitioners; that the WhatsApp group formed by the petitioners was not confined to Ahmedis community only and the inclusion of complainant in that group shows that the group was being used for dissemination of proscribed and banned material of the Abniedis community in public at large; that the contention of learned counsel for the petitioners that sections 295-A, 295-B, 295-C PPC and section 11 of PECA are not attracted in the present case and case of the petitioners is covered under section 9 of the Punjab Holy Quran (Printing and Recording) Act, 2011, being a special law, is totally misconceived because the object and purpose of latter law is obvious from its very preamble, wherein it is mentioned that the law was promulgated to ensure error-free publication of the Book and proper disposal of its damaged and worn out copies. He added that perusal of the whole Qum Act would lead us to a conclusion that it is meant for printers and publishers and not for ordinary accused. To sum up the arguments, learned counsel for the complainant and earned Law Officer stated that even otherwise all the contentions of learned counsel for the petitioners amount to deeper appreciation of evidence, which is not desirable at bail stage; that charge has already been framed and it would be more appropriate to let the trial court decide the case after scrutinizing evidence adduced by both the parties as any observation at this stage by this Court on the contentions raised by the petitioners would seriously prejudice the case of either of the party. 5. Heard the learned counsel for the parties and have perused the available record. Petitioner Shiraz Ahmed is nominated in the FIR. It n,sP.149L 15G-L/2022 5 has not been denied by the petitioners' side that petitioner Shiraz Ahmed was one of the administrators of the WhatsApp Group Sindh Salamat along with co-accused Mebmood lqbal Hashmi and forty other persons were also members of the Group. During the course of arguments, learned counsel for the complainant and learned Deputy Attorney General have pointed out the proscribed book Rohani Khazain and banned text and translation of Holy Qum shared in the Group Sindh Salamat. The learned Law Officer under instructions of the investigating officers present with record has confirmed that it was petitioner Zahir Ahmed, who in his capacity as Secretary Wakalat_e-Tabsheer disseminated banned material to petitioner Shiraz Ahmed and co-accused Mehmood Iqbal Hashmi for further sharing with public at large. He also used to provide derogatory books and guidelines to the petitioner Shiraz Ahmad through a WhatsApp number, registered in his name. According to the investigating officers, detailed forensic analysis of cell phones of both the petitioners and co-accused Mehrnood Iqbal Hashmi was got conducted by the HA and it was found that petitioner Shiraz Ahmed, being one of the administrator of the Group, used to add and remove persons not belonging to Ahmedis community in the group on the instructions of petitioner Zahir Ahmed. In these circumstances, we are of the view that apparently there is sufficient incriminating material available on record connecting the petitioners with the commission of alleged offence. So far as the other contentions of learned counsel for the petitioners are concerned, suffice it to observe that at bail stage we are not meant to dig deep into the evidence or to scrutinize factual aspects of the case, which certainly is the responsibility of the trial court and V ,-L & 150-112022 6 requires evidence to be adduced from both sides. In case this Court enters into the realm of the trial court during bail stage, it would be ciisadvantageous for both sides and would certainly prejudice the case of either side. Therefore, we restrain ourselves from commenting on the merits of the case and find that the petitioners at this stage are not entitled for grant of bail. 6. For the foregoing, the instant criminal petitions having no merit are dismissed and leave to appeal is refused. At this stage, it has been observed by us that there are certain observations in the impugned order, which have the tendency of prejudicing the case of petitioners before the trial Court. Therefore, we cxpect that trial of the case shall be conducted and concluded by the trial Court strictly in accordance with law, without being prejudiced/influenced by any observation contained in the impugned order of the learned High Court. AN:oUNCED IN OPEN COURT ON J 7 /o g/ 7 rnbad, APPROVED FOR REPORTING esJ.

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE YAHYA AFRIDI MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CRIMINAL PETITION NO. 150-L OF 2023 (On appeal against the order dated 20.01.2023 passed by the Lahore High Court, Lahore in Crl. Misc. No. 3872- B/2023) Saad Zia … Petitioner Versus The State etc … Respondent For the Petitioner: Mr. Sahir Mehmood Bhatti, ASC along with petitioner For the State: Mirza Abid Majeed, DPG Mr. Saeed, SI For the Complainant: In person Date of Hearing: 20.06.2023 ORDER SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through the instant petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed the order dated 20.01.2023 passed by the learned Single Judge of the learned Lahore High Court, Lahore, with a prayer to grant pre-arrest bail in case registered vide FIR No. 79/2019 dated 14.02.2019 under Sections 302/324/148/149 PPC at Police Station Saddar Wazirabad, District Gujranwala, in the interest of safe administration of criminal justice. 2. Briefly stated the prosecution story as narrated in the crime report is that on 14.02.2019, the complainant along with his sons went to a marriage hall to attend marriage of his niece. While the complainant and his sons were entering in the hall, the petitioner along with other co-accused while armed with pistol, who were already sitting in the hall, raised lalkara to kill them. The co-accused of the petitioner namely Qasim Ali and Ehtesham made straight firing upon the complainant and his son, which landed on the Criminal Petition No. 150-L/2023 2 neck of son and left foot of the complainant. The assailants also resorted to indiscriminate firing due to which several other persons sustained injuries. 3. At the very outset, it has been argued by learned counsel for the petitioner that the petitioner has been falsely roped in this case against the actual facts and circumstances. Contends that it is a case of two versions squarely falling within the ambit of Section 497(2) Cr.P.C. Contends that during investigation, the petitioner was found to be empty handed at the time of occurrence and was placed in coloumn No. 2 in report under Section 173 Cr.P.C. Lastly contends that the learned High Court while declining bail to the petitioner has not followed the guidelines issued by this Court for the safe administration of criminal justice, therefore, the same may be set at naught and the petitioner may be granted bail. 4. On the other hand, learned Law Officer assisted by the complainant in person opposed the petition by contending that the petitioner has specifically been nominated in the crime report, further he remained absconder for a considerable period of time, therefore, he does not deserve any leniency from this Court. 5. We have heard learned counsel for the parties at some length and have perused the available record with their able assistance. 6. As per the contents of the crime report, the allegation against the petitioner is that he along with co-accused while armed with pistol launched an attack on the complainant party and resorted to indiscriminate firing due to which several persons sustained injuries. We have noticed that though a generalized allegation of causing indiscriminate firing has been alleged against the petitioner, however, during the course of investigation, it transpired that the petitioner was empty handed at the time of occurrence and he has not been ascribed any overt act. This opinion of the Police has not been challenged, rather the petitioner was placed in coloumn No. 2 of the report furnished under Section 173 Cr.P.C. This is established principle of law that mere the fact that a person is nominated in the crime report does not dub him as an accused unless and until during the course of investigation the accusation against the said person is found to be correct. In a salutary Criminal Petition No. 150-L/2023 3 judgment reported as F.B. Ali Vs. The State (PLD 1975 SC 506), this Court held as under:- “Mere lodging of information against a person does not make him an accused nor can a person be called accused against whom investigation is conducted by Police.” 7. It is the stance of the petitioner that in-fact complainant party was aggressor and two persons from the petitioner’s side sustained injuries during the occurrence, which were suppressed by the complainant side. So far as the argument of the learned Law Officer about the absconsion of the petitioner is concerned, it is settled law that absconsion cannot be viewed as a proof for the offence. In Rasool Muhammad Vs. Asal Muhammad (PLJ 1995 SC 477) this Court has held that mere absconsion cannot be made a ground to discard the relief sought for as disappearance of a person after the occurrence is but natural if he is involved in a murder case rightly or wrongly. Reliance is also placed on Muhammad Tasaweer Vs. Hafiz Zulkarnain (PLD 2009 SC 53). It is an admitted position that the petitioner himself surrendered before the law and joined investigation. In these circumstances, it is the Trial Court, who after recording of evidence would decide about the guilt or otherwise of the petitioner and till then the petitioner cannot be put behind the bars for an indefinite period. This court has time and again held that liberty of a person is a precious right, which cannot be taken away merely on the basis of bald allegations. The petitioner is a student having no criminal history and keeping him behind the bars with the hardened criminals would not be in the interest of justice. It is now established that while granting pre-arrest bail, the merits of the case can be touched upon by the Court. Reliance is placed on Miran Bux Vs. The State (PLD 1989 SC 347), Sajid Hussain @ Joji Vs. The State (PLD 2021 SC 898), Javed Iqbal Vs. The State (PLD 2022 SCMR 1424) & Muhammad Ijaz Vs. The State (2022 SCMR 1271). Taking into consideration all the facts and circumstances stated above, we are of the view that the case of the petitioner squarely falls within the ambit of Section 497(2) Cr.P.C. entitling for further inquiry into his guilt. Criminal Petition No. 150-L/2023 4 8. For what has been discussed above, we convert this petition into appeal, allow it, set aside the impugned order and confirm ad interim pre-arrest bail granted to the petitioner by this Court vide order dated 01.06.2023. JUDGE JUDGE Islamabad, the 20th of June, 2023 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No. 1515 of 2020 (Against the order dated 04.12.2020 passed by the Peshawar High Court Peshawar in Crl. MBA No.3532-P/2020) Bilal Khan …Petitioner(s) Versus The State …Respondent(s) For the Petitioner(s): Mr. Aftab Khan, ASC For the State: Mr. Arshad Hussain, ASC with Nasir Mehmood Inspector Date of hearing: 25.01.2021. ORDER Qazi Muhammad Amin Ahmed, J.- On a tip off, Bilal Khan, petitioner was apprehended on the wheel of car bearing Registration No.LAR/983 at 10:45 a.m. on 14.10.2020 by a contingent of Excise Police Station Peshawar; he was accompanied by Yasir Khan, co-accused. Upon search 1200 grams of amphetamine/Ice, concealed in a secret cavity was recovered. 2. Heard. Record perused. 3. Given red-handed arrest of the petitioner with a considerable quantity of a lethal contraband, confirmed by a positive forensic report that brings the case within the remit of ‘Prohibition, contemplated by section 51 of the Control of Narcotic Substances Act, 1997, petitioner’s claim of false implication is an issue that cannot be attended without going beyond the scope of tentative assessment, a venture prohibited by law. On our own analysis of the record, view concurrently taken by the courts below is not open to exception. Petition fails. Leave declined. Judge Judge Islamabad, the 25th January, 2021 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Umar Ata Bandial Mr. Justice Syed Mansoor Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.1549 of 2021 (Against the order dated 09.12.2021 passed by the Lahore High Court Lahore in Crl.Misc. No.66270-B/2021) Rashad Imran …..Petitioner(s) Versus The State & another …Respondent(s) For the Petitioner(s): Mr. Aftab Alam Yasir, ASC Syed Rifaqat Hussain Shah, AOR For the State: Mr. Ahmad Raza Gillani, Addl. P.G. Punjab For Respondent No.2: In person Date of Hearing 26.01.2022. ORDER Qazi Muhammad Amin Ahmed, J.- Apprehending arrest, Rashid Imran, petitioner herein, after failure before the High Court, seeks bail in anticipation thereto; he along with co- accused was intercepted by a Veterinary Officer on 23.6.2021 at 9:00 p.m. with 500 k.g. beef and 60 k.g. mutton on a meatless day. Upon inspection, the complainant found the confiscated stuff cold on touch, dark reddish in texture emitting bad smell and as such manifestly unfit for human consumption; it carried fake stamps as deceit to suggest ante mortem slaughter. Upon a complaint, the police registered a criminal case, subsequent whereto, the impounded meat was destroyed with magisterial intervention. 2. Heard. Record perused. 3. An inordinate stress laid by the learned counsel on the vires of exercise undertaken by the Veterinary Officer Gojra, notwithstanding, the seizure of substandard meat, grievously Criminal Petition No.1549 of 2021 injurious for human consumption, on a meatless day i.e. Wednesday is established through the inventories of even date. Association of a Magistrate further lends credence to the procedure adopted. Quantity of confiscation is too considerable to be manipulated to set up a fake case, nor there appears any earthly reason for the complainant, a State functionary tasked with the responsibility of ensuring hygienic livestock supplies to the public, to proceed against the petitioner with motives, oblique or sinister, a sine qua non to suspend the mechanics of criminal law that mandatorily requires arrest in cognizable cases, scheduled as non-bailable. Petition fails. Leave declined. Judge Judge Judge Islamabad, the 26th January, 2022 Azma/-

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI MR. JUSTICE JAMAL KHAN MANDOKHAIL MR. JUSTICE ATHAR MINALLAH CRIMINAL PETITION NO. 1557 OF 2022 (On appeal against the order dated 28.11.2022 passed by the High Court of Sindh, Circuit Court Hyderabad in Crl. Bail Application No. S-1126/2022) Gul Muhammad … Petitioner Versus The State … Respondent For the Petitioner: Mian Taj Muhammad Keerio, ASC (Through video link from Karachi) For the State: Mr. Hussain Bux Baloch, Addl. P.G. For the Complainant: In person Date of Hearing: 09.02.2023 ORDER SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through the instant petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed the order dated 28.11.2022 passed by the learned Single Judge of the learned High Court of Sindh, Circuit Court Hyderabad, with a prayer to grant post-arrest bail in case registered vide FIR No. 26/2022 dated 28.07.2022 under Sections 302 / 324 / 337-A(i) / 337-F(i) / 337-H(ii) / 504 / 506 / 114 / 147 / 148 / 149 PPC at Police Station Nabi Sir Road, District Umerkot, in the interest of safe administration of criminal justice. 2. Briefly stated the allegation against the petitioner is that he along with co-accused while armed with firearm launched an attack on the complainant party. With the intention to kill, the petitioner made straight fire from his pistol upon the complainant, which hit on his ear and shoulder. The other co-accused made fires on Ghulam Abbas and Gul Bahar, nephew and son of the complainant, due to which the said Ghulam Abbas died whereas the son of the complainant sustained injury on his leg. Criminal Petition No. 1557/2022 2 3. At the very outset, it has been argued by learned counsel for the petitioner that the petitioner has been falsely roped in this case against the actual facts and circumstances. Contends that the crime report was lodged after an inordinate delay of two days for which no plausible explanation has been given. Contends that in-fact the complainant party was aggressor and had caused injury on left arm of the petitioner due to which his arm was amputated and a counter FIR has been registered against the complainant party. Contends that it is a case of two version squarely falling within the ambit of Section 497(2) Cr.P.C. Contends that the learned High Court while declining bail to the petitioner has not followed the guidelines issued by this Court for the safe administration of criminal justice, therefore, the same may be set at naught and the petitioner may by released on bail. 4. On the other hand, learned Law Officer opposed the petition by contending that although the crime report was registered with an inordinate delay of two days but there was no mala fide on the part of the complainant. Contends that the petitioner has been specifically nominated in the crime report with a specific role of firing at the complainant, therefore, he does not deserve any leniency from this Court. 5. We have heard learned counsel for the parties at some length and have perused the available record with their able assistance. As per the contents of the crime report, the allegation against the petitioner is that he while armed with pistol .30 bore launched an attack on the complainant party and made straight fire from his pistol on the complainant, which hit on his ear and shoulder. However, it is stance of the petitioner that in-fact the complainant party while armed with firearms came at his village, attacked on him and caused injury on his left arm, due to which his left arm has been amputated. The medical evidence available on record prima facie supports the stance of the petitioner. The petitioner has also got registered a counter FIR bearing No. 27/2022 under Sections 324/506(ii)/114/337-F(i)/337-H(ii)/504/34 PPC at Police Station Nabir Sir Road, District Umerkot against the complainant party. In the instant case, the crime report was lodged after an inordinate delay of two days for which not Criminal Petition No. 1557/2022 3 even a single word has been put forward by the complainant. The delayed registration of FIR prima facie shows deliberations and consultation on the part of the complainant. According to Medico Legal Report of the injured PW Usman, the injuries on his person have been declared as ghayr jaifah mutalahimah and shajjah-i-khafifah falling within the ambit of Sections 337- F(iii) and 337-A(i) PPC for which the maximum punishment provided under the statute is three and two years respectively. However, we do not want to comment on this aspect of the matter, lest it may prejudice the case of either of the party before the Trial Court. It is the Trial Court who after recording of evidence would decide about the guilt or otherwise of the petitioner and as to whether Section 324 PPC is applicable or not. The petitioner is behind the bars for the last more than five months. This court has time and again held that liberty of a person is a precious right, which cannot be taken away unless there are exceptional grounds to do so. Merely on the basis of bald allegations, the liberty of a person cannot be curtailed. In these circumstances, the petitioner has made out a case for bail as his case squarely falls within the purview of Section 497(2) Cr.P.C. entitling for further inquiry into his guilt. 6. For what has been discussed above, we convert this petition into appeal, allow it and set aside the impugned order. The petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs.200,000/- with one surety in the like amount to the satisfaction of learned Trial Court. JUDGE JUDGE JUDGE Islamabad, the 9th of February, 2023 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Sardar Tariq Masood Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Qazi Muhammad Amin Ahmed Crl. Petition No.1581 of 2021 (Against the order dated 13.12.2021 passed by the Lahore High Court, Rawalpindi Bench in Crl. A. No.2126-B and 2045-/2021) Waqas Nazir and others …Petitioner(s) Versus The State & another …Respondent(s) For the Petitioner(s): Mr. Shaukat Aziz Siddiqi, ASC Pir Muhammad Masood Chishti, ASC Ch. M. Sasfdar Bhatti, ASC Syed Rifaqat Hussain Shah, AOR For the State: Mr. Muhammad Jaffar, Addl. P.G. Punjab with Muhammad Saqlain Naeem, DSP, Zeeshan Haider, SHO and M. Imran Khalid, ASI For the Respondent(s): Malik Waheed Anjum, ASC Date of Hearing 21.02.2022. ORDER Qazi Muhammad Amin Ahmed, J.:- Proceedings in a pre- arrest bail petition, pending before a learned Additional Sessions Judge at Rawalpindi, turned the District Court Complex into a battle field between the two rival factions of property developers, at 8:15 a.m. on 27.8.2021; both groups, each in numbers unusually large, took on each other and in the process ransacked benches at the first floor as well as nameplates of the Judges and used them as weapons of assault on their opponents; they also dismantled plastic pipes of air conditioners; the court staff attempted to intervene only to face their wrath and then confined themselves behind the safety of close doors; the Judges also retired after suspending the judicial work; a panic gripped the premises amid multiple fire shots; a police contingent detached at the court complex intervened and apprehended many of Crl. P. 1581/2021 2 them at the spot. A criminal case was registered wherein both sides were arrayed side by side; present petitioners belong to one of them and seek bail after denial by a learned Judge-in-Chamber vide impugned order dated 13.12.2021, leave to appeal wherefrom is prayed for on the grounds that all the offences, based upon general allegations, are scheduled as bailable and that mischief of section 7 of the Anti Terrorism Act, 1997 is not attracted to the facts and circumstances of the case as the only injury sustained by one of the Advocates is designated as Shajjah-i-Khafifah within the contemplation of section 337 A(i) of the Pakistan Penal Code, 1860. Continuous detention, by now exceeding six months in judicial lock up, is serving no useful purpose, a circumstance to be thoughtfully viewed by the Court, concluded the learned counsel. The learned Law Officer has defended the view taken by the High Court, in its discretion, being well within the remit of law. 2. Heard. Record perused. 3. Pendency of an ad-interim pre arrest bail in a case of homicide before a learned Additional Sessions Judge on the eventful day is a common ground and so is assembly of a large number of supporters of each side in the court premises for purpose no other than to flex their muscles. Recovery memos confirm seizure of crime empties as well as two vehicles carrying offensive weapons with munitions right from inside the court premises. Damaged nameplates, broken benches and other installations removed during the occurrence are also part of the inventory. We entertain no manner of doubt that it was beginning of a day in District Courts Rawalpindi far from usual, disruptive and awe-inspiring, for which both sides, bracing each other in a large number of cases, cannot conveniently shield themselves behind a bald denial. District/Trial Courts constitute a most important tier of our judicial system; here parties brace each other face to face at close blank with the Judge and advocates within physical reaches; these temples of justice, by necessary implications, are required to be most guarded by law; it is essential that all those who man the first rung of judicial ladder attend their pursuits with the satisfaction of being safe and secure; it is equally important that even the mightiest cannot dare to contemplate a transgression without a backlash sanctioned by law Crl. P. 1581/2021 3 and, thus, we find the High Court wise and conscionable in its discretion to disallow the motions. We do not consider it expedient to comment upon the argument relating to the suggested non-applicability of penal provisions invoked by the prosecution, a business to be best settled by the trial Court on the strength of material/evidence before it, uninfluenced by the issue specific observations recorded hereinabove. Even otherwise, the Supreme Court seldom interferes with exercise of discretion in bail matters, that too, in cases of denials, manifestly untenable, not the one in hand. Petition fails. Leave declined. Judge Judge Judge Islamabad, the 21st February, 2022 Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Umar Ata Bandial, CJ Mr. Justice Munib Akhtar Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.1596 of 2021 (Against the order dated 30.6.2021 passed by the High Court of Balochistan in Cr. A. No.175-2014) Shams ul Islam Khan …..Petitioner(s) Versus Azhar Ahmed Khan and another …Respondent(s) For the Petitioner(s): Mr. Naeem Bokhari, ASC For the State: Syed Pervaiz Bokhari, Addl. P.G. Balochitan For Respondent No.1: In person. Date of Hearing 07.02.2022. ORDER Qazi Muhammad Amin Ahmed, J.- The petitioner is in receipt of a guilty verdict returned by the learned Addl. Sessions Judge-IV Quetta in a complaint instituted by Azhar Ahmed Khan, no other than his paternal nephew; he alongside his brother Saif-ul-Islam Khan, since dead, was indicted for depriving female legatees from their shares in the legacy. Convicted under sections 466, 467, 474 and 498-A read with section 34 of the Pakistan Penal Code, 1860, they were to periods of imprisonments ranging from 5 to 10 years with direction to pay fine; sentences to be commuted concurrently, pre-trial period inclusive, vide judgment dated 20.6.2014. The High Court of Balochistan reduced quantum of sentence under section 498-A to 5-years whereas on the remainder counts, to 1-year, vide judgment dated 30.6.2021, leave to appeal wherefrom has been prayed for on the grounds that there was no occasion for the High Court to decline petitioner’s appeal inasmuch as the prosecution had failed to come up with “proof beyond doubt” before the learned trial Court; it is next argued that the fate of indictment is Cr.P. 1596/2021. decisively linked with the outcome of civil litigation still raging between the parties. It is lastly argued that both the Court escaped notice of Criminal Law (Third Amendment) Act 2011 that inserted Chapter XX-A in the Pakistan Penal Code incorporating section 498-A w.e.f. the 28th of December, 2011, and, thus, the petitioner, according to prosecution’s own case, has been convicted in violation of Constitutional protection against retrospective punishment. Contentions raised need consideration. Leave is granted. Notice shall issue to the State. Chief Justice Judge Judge Islamabad, the 7th February, 2022 Azmat/-

In the Supreme Court of Pakistan (Appellate Jurisdiction) Present: Mr. Justice Anwar Zaheer Jamali Mr. Justice Dost Muhammad Khan Mr. Justice Umar Ata Bandial Crl.P.L.A. No.15 of 2015 (On appeal from judgment of Peshawar High Court, Peshawar dated 8.12.2014 passed in Crl. Misc. (BA) of 2014) Socha Gul Petitioner Versus The State Respondents For the petitioner: Mr. Arshad Hussain Yousafzai, ASC Syed Rifaqat Hussain Shah, AOR. For the State/ANF: Nemo. On Court Notice: Mr. Sajid Ilyas Bhatti, DAG. Date of hearing: 27.3.2015 Judgment Anwar Zaheer Jamali, J – Petitioner, Socha Gul, who is one of the nominated accused in crime No.91 dated 30.9.2014, Police Station ANF, District Peshawar, for commission of offence under section 9(c) of the Control of Narcotic Substances Act, 1997 (“CNS Act of 1997”), with the allegation that, upon spy information, when he was apprehended by the personnel of Anti-Narcotic Force, upon his personal search, four kilograms charas was recovered from his possession; was refused bail by the learned Judge, Special Court (CNS), Khyber Pakhtunkhwa, Peshawar, vide order dated 15.10.2014. Thereafter he moved Criminal Miscellaneous (BA) No.1716-P of 2014 before the Peshawar High Court, Peshawar, with the prayer for grant of bail in the said crime, but it was also declined, vide impugned order dated 8.12.2014. Crl. P. No.15 of 2015 2 2. We have heard the learned ASC for the petitioner. He contends that petitioner, who has his employment abroad, had returned to Pakistan only three weeks before the date of alleged occurrence and has been falsely implicated in the commission of crime by the ANF Police. In such circumstances, following the ratio of judgment in the case of Jamal-ud-Din alias Zubair Khan versus the State (2012 SCMR 573), qua the quantity of narcotic substance allegedly recovered from him, having remained in custody for over five months, he is entitled for grant of bail. 3. We have perused the case record and seen that the offence, for which the petitioner has been charged, falls under section 9(c) of CNS Act of 1997, as the quantity of narcotic substance (charas) recovered from his possession is four kilograms. The samples of charas contained in four packets were separately taken, sealed on the spot, and report of Forensic Science Laboratory has been received in the positive. In such circumstances, at this stage no case for grant of bail is made out, merely for the reason that in the case of Jamal-ud-Din (supra) the honourable two member Bench of this Court has admitted the accused to bail with the observation that, while hearing a petition for grant of bail, the Court is not to keep in view the maximum sentence provided by the statute for the charged offence, but the one which is likely to be entailed. 4. In the present case, the accused is charged with the commission of offence under section 9(c) of CNS Act of 1997, which reads as under:- “9. Punishment for contravention of Sections 6, 7 and 8.--- Whoever contravenes the provisions of Section 6, 7 or 8 shall be punishable with:- Crl. P. No.15 of 2015 3 a. imprisonment which may extent to two years, or with fine, or with both, if the quantity of the narcotic drug, psychotropic substance of controlled substance is ten grams or less; b. imprisonment which may extend to seven years and shall also be liable to fine, if the quantity of the narcotic drug, psychotropic substance or controlled substance exceeds one hundred grams but does not exceed one kilogram; c. death, or imprisonment for life, or imprisonment for a term which may extend to fourteen years and shall also be liable to fine which may be upto one million rupees, if the quantity of narcotics drug, psychotropic substance or controlled substance exceeds the limits specified in clause (c): Provided that, if the quantity exceeds ten kilograms the punishment shall not be less than imprisonment for life. 5. From the above reproduction, intent and scheme of the legislator is quite clear about the quantum of prescribed punishment under section 9(c) (ibid), which could be either death or imprisonment for life or an imprisonment for a term which may extent to fourteen years, in addition to fine upto one million rupees. In our opinion, in such circumstances, neither categorization of sentencing nor any guess work or speculative exercise could be undertaken by the Court at bail stage to enlarge an accused on bail in such crimes, which will amount to pre-empting the mind of the trial Court, controlling its powers in the matter of sentencing an accused and determining the quantum of sentence upon his conviction. 6. In the case of Ghulam Murtaza versus the State (PLD 2009 Lahore 362), which is an order in a reference arising out of an appeal under the CNS Act 1997, and is frequently referred in the context of sentencing the accused convicted under CNS Act of 1997, Crl. P. No.15 of 2015 4 inter alia, keeping this aspect in mind, the larger Bench of the Lahore High Court, while categorizing the sentences of an accused on the criteria of nature of narcotic substance recovered and its quantity, has aptly observed as under:- “10. It goes without saying that in a particular case carrying some special features relevant to the matter of sentence a Court may depart from the norms and standards prescribed above but in all such cases the Court concerned shall be obliged to record its reasons for such departure.” 7. Again, in the case of Nadeem Ashraf versus State (2013 SCMR 1538), making reference to the judgment in the case of Ameer Zeb versus State (PLD 2012 S.C. 380), in a narcotics case, while refusing bail, the issue of quantity of recovered narcotics substance qua method/mode of its sampling and its relevancy at bail stage has been dilated by the Court in the following words:- “4. Admittedly the trial has yet to commence and it would be rather presumptuous on the part of the petitioner to infer that the prosecution would lead evidence only to the extent of the weight to which reference has been made by the petitioner’s learned counsel. It is always open for the parties and in this case for the prosecution to lead further evidence and to request the court that it be allowed to send the entire narcotics allegedly recovered from the petitioner for chemical analysis.”. 8. It is pertinent to mention here that offences punishable under CNS Act of 1997 are by its nature heinous and considered to be the offences against the society at large and it is for this reason that the statute itself has provided a note of caution under section 51 of CNS Act of 1997 before enlarging an accused on bail in the ordinary course. When we refer to the standards set out under section 497 Cr.P.C. for grant of bail to an accused involved in an offence under Crl. P. No.15 of 2015 5 section 9(c) of CNS Act of 1997, even on that basis we find that an accused charged with an offence, prescribing various punishments, as reproduced above, is not entitled for grant of bail merely on account of the nature or quantity of narcotic substance, being four kilograms. Firstly, as deeper appreciation of evidence is not permissible at bail stage and secondly, in such situation, looking to the peculiar features and nature of the offence, the trial Court may depart from the normal standards prescribed in the case of Ghulam Murtaza (supra) and award him any other legal punishment. Thus, in our opinion, ratio of judgment in the case of Ghulam Murtaza (supra) is not relevant at bail stage. 9. For the foregoing reasons, leave is refused and this petition is dismissed. Islamabad, 27th March, 2015 Approved for reporting. Riaz Judge Judge Judge

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE MUNIB AKHTAR MR. JUSTICE SAYYED MAZAHAR ALl AKBAR NAUVI CRIMINAL PETITION NO. 1603-L OF 2021 (On appeal against the order dated 09.112021 passed by the Lahore High Court, Lahore in Criminal Appeal No. 7301/2021) Muhammad Arshad Petitioner Versus The State and Babar Abbas ...Respondent(s) For the Petitioner: Mr. Mushtaq Ahmed Mohal, ASC (through video link from Lahore) For the State: Mirza Muhammad Usman, DPG For the Respondent (2): Mrs. Nighat Saeed Mughal, ASC a/w Babar Abbas (via video link from Lahore) Date of Hearing: 13.04.2022 JUDGMENT SAYVED MAZAHAR ALl AKBAR NAQVI, J. Through the instant petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed the order dated 09,11,2021 passed by the learned Single Judge of the Lahore High Court, Lahore, whereby the application for suspension of sentence filed by the respondent was allowed and he was granted bail. 2. Briefly stated the facts of the matter are that the respondent Babar Abbas along with two co-accused was tried by the learned Trial Court pursuant to a case registered vide FIR No. 529/2019 dated 07.09.2019 under Sections 302/148/149 PPC at Police Station Cantt, Gujranwala for committing murder of Munawar Hussain, brother of the complainant. The learned Trial Court vide its judgment dated 22.12.2020 while acquitting the co-accused, Criminal Petition No. I 603-L/2022 -: 2 convicted the respondent under Section 302(b) PPC and sentenced him to imprisonment for life along with payment of compensation of Rs.500,000/- payable to the legal heirs of the deceased or in default whereof to further undergo six months SI. Against the said judgment, the respondent filed Criminal Appeal No. 7301/2021 before the learned Lahore High Court. However, during the pendency of the said appeal, he filed Criminal Misc. No. 01/2021 under Section 426 Cr.P.C. seeking suspension of his sentence, which has been allowed vide impugned order, Hence, this petition filed by the petitioner/complainant seeking leave to appeal. 3. At the very outset, it has been argued by learned counsel for the petitioner that the impugned order amounts to deeper appreciation of the merits of the case, which is not permissible at the time of hearing an application for suspension of sentence. Contends that the respondent was found guilty by the learned Trial Court after recording of evidence and mere a minor contradiction in the statement of the eye-witnesses does not absolve him of his criminal liability. Contends that the respondent had actively participated in the occurrence, therefore, he cannot be enlarged on bail. Lastly contends that the impugned order is the result of misreading and non- reading of evidence and is not sustainable in the eyes of law. 4. On the other hand, learned counsel for the respondent No. 2 while defending the impugned order contended that there are major contradictions in the statements of the prosecution witnesses and medical evidence, which have rightly been taken note of by the learned High Court while handing down the impugned order. Contends that though deeper appreciation is not permissible while suspending the sentence, however, in the interest of justice where the case is wide open then it is incumbent upon the court to decide the us on the basis of material available on the record. Contends that the case of prosecution is advanced by Waqas Ali (PW-8) and Muhammad Arshad, complainant (PW-9) and they have made improvements in their statements, which is clear cut deviation from the original stance and as such the benefit of the same can be extended in favour of the respondent. Contends that there was specific allegation of causing firearm injuries by the three assailants but as per the medical record the deceased sustained only Criminal Petition No. I 603-L/2022 -:3:- one injury and that has been made basis by the learned High Court while suspending the sentence and the same is in accordance with the dictates of justice. 5. We have heard learned counsel for the parties at some length and have perused the record with their able assistance The learned High Court while suspending the sentence inflicted upon the respondent No. 2 by the learned Trial Court mainly observed that according to the crime report, the respondent along with two co-accused while each armed with 30 bore pistol had made three separate fire shots upon the person of the deceased, which landed on his belly but the assertion of the prosecution witnesses is contradicted by Dr. Azhar Ali Khan (PW-7), according to whom, the deceased sustained only one injury on his belly. During course of trial while appearing as PW-8 and PW-9, both the prosecution witnesses namely Waqas Ali and complainant Muhammad Arshad had improved their earlier stance and stated that it was only the respondent whose fire landed on the belly of the deceased. The possibility cannot be ruled out that the prosecution witnesses deviated on the advice of the counsel or otherwise, therefore ) the same cannot be made basis to keep a person behind the bars for indefinite period especially when the Investigating Officer has candidly stated that the empties recovered from the place of occurrence had not been fired by the pistol allegedly recovered at the instance of the respondent. It is now established beyond any doubt that benefit of doubt can be extended even at preliminary stage i.e. bail & suspension of sentence The learned High Court while suspending the sentence had taken note of this fact coupled with the fact that there is previous enmity between the parties as earlier the deceased was involved by the respondent in a case bearing FIR No. 469/2019 under Sections 324/148/149 PPC. Even otherwise, while drawing analogy with the well settled law that the principles for grant of bail and cancellation whereof are entirely on different footing, the case of the petitioner can be adjudged within the parameters enunciated by this Court from time to time. All these facts and circumstances when evaluated conjointly, compel this Court to come to the conclusion that the learned High Court while suspending the -I I Criminal Petition No. 3603-1/2022 -:4:- sentence had taken care of justiciable facts and circumstances and no exception can be taken contrary to what has been observed by the High Court in the order impugned before us. As a consequence, this petition having no merit is accordingly dismissed and leave to appeal is refused, Islamabad, the 13th of April, 2022 Approved For Reporting MM

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition Nos.1612 of 2021 (Against the judgment dated 13.12.2021 passed by the Peshawar High Court Peshawar in Crl. M. (BA) No.4124-P/2021)) Noor Wali and another …Petitioner(s) Versus The State and another …Respondent(s) For the Petitioner(s): Mr. Hussain Ali, ASC Mr. Anis Muhammad Shahzad, AOR For the State: Mr. Shumayl Aziz, Add. Advocate General KP Date of Hearing: 16.02.2022. ORDER Qazi Muhammad Amin Ahmed, J.:- A contingent of Pakistan Customs, on a tip off, signaled a Lahore bound bus to halt at the check post within the precincts of Police Station Chamkani Peshawar; it was being escorted by the assailants riding on two vehicles; they ran over the contingent as a result whereof Mian Irfan Ullah, 27, sustained serious injuries, subsequently proved fatal. The assailants took to the heels, however, the petitioners were apprehended by a police party arrived at the scene pursuant to information; they have been denied bail, lastly by a learned Judge- in-Chamber of the Peshawar High Court Peshawar vide impugned order dated 13.12.2021, leave to appeal wherefrom is being prayed for on a variety of grounds. 2. Heard. Record perused. 3. We are not impressed by the argument that Irfan Ullah Constable was accidently run over by the speeding vehicle as the Custom Authorities in anticipation to arrival of the said vehicle with Crl Petition No.1612/2021 smuggled contraband on board had set up a blockade, calculatedly breached by the petitioners by running over a State functionary, standing in the line of duty, a criminal transgression with consequences most serious. The smuggled items, taken into possession in the wake of gory incident, in retrospect, lends credible support to the prosecution case, set up in the crime report. Material collected by the prosecution constitute “reasonable grounds” within the contemplation of section 497 of the Code of Criminal Prosecution, 1898 standing insurmountably in impediment to their release on bail, in the absence of any consideration calling for further probe. View concurrently taken by the Courts below being well within remit of law calls for no interference. Petition fails. Leave declined. Judge Judge Islamabad, the 16th February, 2022 Azmat/-

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE YAHYA AFRIDI MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CRIMINAL PETITION NO. 1617 OF 2022 (On appeal against the order dated 17.11.2022 passed by the Islamabad High Court, Islamabad in Criminal Revision No. 99/2022) Gufran Ali … Petitioner Versus Haseeb Khan and another … Respondents For the Petitioner: Mr. Khalil-ur-Rehman Abbasi, ASC For the Respondents: N.R. Date of Hearing: 23.05.2023 ORDER SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through the instant petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed the order dated 17.11.2022 passed by the learned Single Judge of the learned Islamabad High Court, Islamabad, vide which the order dated 02.11.2022 passed by the learned Additional District & Sessions Judge-IV, East-Islamabad was upheld. 2. Briefly stated the facts of the matter are that the respondent No. 1 Haseeb Khan was proceeded against in terms of the case registered vide FIR No. 853/2021 dated 02.10.2021 under Section 302 PPC at Police Station Koral, Islamabad, for committing murder of Raja Nadeem Ghalib, paternal cousin of the petitioner/complainant. Pursuant to an application submitted by the respondent No. 1, the learned Trial Court vide order dated 02.11.2022 declared the respondent No. 1 juvenile at the time of commission of the offence. Being aggrieved, the petitioner/complainant filed Criminal Revision before the learned Islamabad High Court but it also met the same fate vide impugned order. Hence, this petition. Criminal Petition No. 1617/2022 2 3. At the very outset, it has been argued by learned counsel for the petitioner that there is a conflict regarding the date of birth of the respondent-accused i.e. according to NADRA record, his date of birth is 14.07.2005 whereas the certificate issued by Secretary Union Council Naryab, Hangu shows his date of birth as 06.03.2007. Contends that the learned courts below overlooked the report of the Medical Board wherein according to Radiology Department the age of the accused was shown as 18 to 20 years whereas according to Dental Department, the age of the accused was 16 to 18 years. Lastly contends that the learned Trial Court ought to have called the members of the Medical Board and cross- examine them before arriving at the conclusion. In support of the contentions raised, learned counsel placed reliance on Muhammad Aslam Vs. The State (PLD 2009 SC 777). 4. We have heard learned counsel for the petitioner at some length and have perused the available record. 5. Ordinarily, the date of birth of a person is determined on the basis of documentary proof i.e. birth certificate, educational documents and National Identity Card etc but when the date of birth is disputed and varies on all such documents then the ossification test is the best way to determine a person’s age. The ossification test is a test that determines age based on the “degree of fusion of bone” by taking the x-ray of a few bones. In simple words, the ossification test or osteogenesis is the process of the bone formation based on the fusion of joints between birth and the age of twenty five years in an individual. Bone age is an indicator of the skeletal and biological maturity of an individual which assists in the determination of age. The ossification test varies slightly based on individual characteristics such as climatic conditions where the person born and raised, dietic values, hereditary differences etc. In the present case, there was a conflict between the Birth Registration Certificate issued by the Secretary Union Council Naryab, Hangu and the NADRA record regarding the date of birth of the respondent No. 1. In this backdrop, the learned Trial Court rightly constituted a medical board to examine the Criminal Petition No. 1617/2022 3 respondent-accused. We have perused the report submitted by the medical board. The report consists of three opinions of (i) Radiology Department, (ii) General Medicine Department and (iii) Dental Department. Although the age of the respondent was found to be 18 to 20 years and 16 to 18 years by the two departments but it is settled principle of law that if two views are possible from the evidence adduced in the case then the view favourable to the accused is to be adopted. Reliance is placed on Saghir Ahmed Vs. State (2023 SCMR 241) and Sahib Ullah Vs. The State (2022 SCMR 1806). During the course of arguments, learned counsel repeatedly argued that the actual date of birth of the respondent was according to NADRA record i.e. 14.07.2005. However, even if the date of birth of the respondent as per the NADRA record is considered to be true, his age was 16 years 02 months and 19 days at the time of commission of the crime, therefore, in all eventuality he was a juvenile at that time. So far as the case law relied upon by the learned counsel for the petitioner is concerned, the same is distinguishable as in the case of Muhammad Aslam supra, no ossification test of the accused was conducted and the learned courts below had decided the issue of age of the accused on the basis of School Leaving Certificate and the Birth Register. This Court held that “whenever such a question of age is raised or arises at the trial, the courts should not deal with the same in a cursory or in a slip-shod manner but must proceed to hold an inquiry in the matter as commanded by the provisions of section 7 of the Juvenile Justice System Ordinance including medical examination of the accused for the purpose.” As per Section 510 Cr.P.C. the report of the expert in various fields of science can be produced in evidence without calling them and can be used as evidence in any inquiry or trial or other proceedings. The learned High Court has correctly appreciated the material aspects of the case and the conclusions drawn are in line with the guidelines enunciated by this Court on the subject. Learned counsel for the petitioner has not been able to point out any legal or factual error in the impugned judgment, which could be made basis to take a different view from that of the learned High Court. Criminal Petition No. 1617/2022 4 6. For what has been discussed above, we do not find any merit in this petition, which is dismissed and leave to appeal is refused. The above are the detailed reasons of our short order of even date. JUDGE JUDGE Islamabad, the 23rd of May, 2023 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI MR. JUSTICE JAMAL KHAN MANDOKHAIL MR. JUSTICE ATHAR MINALLAH CRIMINAL PETITION NO. 1619 OF 2022 (On appeal against the order dated 08.12.2022 passed by the Lahore High Court, Lahore in Crl. Misc. No. 71061-B/2022) Abdul Rehman @ Muhammad Zeeshan … Petitioner VERSUS The State and others … Respondents For the Petitioner: Ch. Muhammad Ashraf Jalal, ASC with petitioner (via video link from Lahore) Mr. Anis Muhammad Shahzad, AOR For the State: Ch. Muhammad Sarwar Sidhu, Addl. P.G. Mr. Muhammad Nadim, DSP Mr. Muhammad Ashraf, SI Date of Hearing: 02.02.2023 ORDER SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through the instant petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed the order dated 08.12.2022 passed by the learned Single Bench of the Lahore High Court, Lahore, with a prayer to grant pre-arrest bail in case registered vide FIR No. 213 dated 07.09.2022 under Sections 337-A(ii)/337-L(ii)/147/149 PPC at Police Station Shah Gareeb, District Narowal, in the interest of safe administration of criminal justice. 2. Briefly stated the allegation against the petitioner is that he while armed with ‘churri’ assaulted upon the complainant and gave him a blow on the left side of the head of the complainant. CRIMINAL PETITION NO. 1619 OF 2022 2 3. At the very outset, it has been contended by the learned counsel for the petitioner that the petitioner has been falsely roped in this case against the actual facts and circumstances. Contends that the FIR was lodged with an inordinate delay of five days, which shows that the same was lodged after deliberation and consultation. Contends that the case against the petitioner is false, fabricated, fictitious and based on ulterior motives and mala fide intentions. Further contends that the co-accused of the petitioner, who were ascribed the similar role, have been granted pre- arrest bail by the learned Trial Court, therefore, following the rule of consistency the petitioner also deserves the same treatment to be meted out. Lastly contends that the impugned order is against the law and facts, as such, the same is not maintainable and is liable to be set at naught. 4. On the other hand, learned Law Officer has defended the impugned order. It has been contended that the petitioner has specifically been nominated in the crime report and a specific allegation of causing injury on the person of the complainant has been leveled against him, therefore, he does not deserve any leniency from this Court. 5. We have heard learned counsel for the parties at some length and have perused the available record. As per the contents of the crime report, the petitioner along with co-accused while armed with ‘churri’ assaulted upon the complainant and gave him a blow on the left side of the head. The crime report was lodged after an inordinate delay of five days for which not even a single word has been put forward by the complainant. The delayed registration of FIR prima facie shows deliberations and consultation on the part of the complainant. We have been informed that co-accused of the petitioner, who were specifically named in the crime report, have been granted pre- arrest bail by the learned court of competent jurisdiction. Keeping in view the peculiar facts and circumstances of the present case, the possibility cannot be ruled out that the petitioner has been involved in the case by throwing a wider net by the complainant especially when it is the case of the petitioner that the FIR was registered against one Zeeshan but the CRIMINAL PETITION NO. 1619 OF 2022 3 name of the petitioner has subsequently been added portraying him as Abdul Rehman alias Muhammad Zeeshan. However, we do not want to give any finding on this aspect of the matter, lest it may prejudice the case of either of the parties before the Trial Court. It is the Trial Court, who after recording of evidence would decide about the guilt or otherwise of the petitioner and till then the petitioner cannot be put behind the bars for an indefinite period. This court has time and again held that liberty of a person is a precious right, which cannot be taken away. Merely on the basis of bald allegations, the liberty of a person cannot be curtailed. The petitioner is a young man having no criminal history and keeping him behind the bars with the hardened criminals would not be in the interest of justice. It is now established that while granting pre-arrest bail, the merits of the case can be touched upon by the Court. Reliance is placed on Miran Bux Vs. The State (PLD 1989 SC 347), Sajid Hussain @ Joji Vs. The State (PLD 2021 SC 898), Javed Iqbal Vs. The State (PLD 2022 SCMR 1424) & Muhammad Ijaz Vs. The State (2022 SCMR 1271). Taking into consideration all the facts and circumstances stated above, we are of the view that the case of the petitioner squarely falls within the ambit of Section 497(2) Cr.P.C. entitling for further inquiry into his guilt. 6. For what has been discussed above, we convert this petition into appeal, allow it, set aside the impugned order and confirm ad interim pre-arrest bail granted to the petitioner by this Court vide order dated 04.01.2023. JUDGE JUDGE JUDGE Islamabad, the 2nd of February, 2023 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE FAISAL ARAB MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CRIMINAL PETITION NO.163 OF 2020 (Against the order of the Lahore High Court, Lahore dated 28.01.2020 passed in Crl. Misc. No.49574-TA of 2019) Muhammad Sultan : … Petitioner Versus Muhammad Raza & others : … Respondents For the Petitioner : Chaudhary Abdul Khalid Thind, ASC Syed Rafaqat Hussain Shah, AOR For the (State) : N.R Date of Hearing : 12.06.2020 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J:- Criminal petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 has been filed, seeking leave to appeal against the order dated 28.01.2020 of Lahore High Court, Lahore in Crl. Miscellaneous No.49574-TA/2019 in the interest of safe administration of criminal justice. 2. The facts necessitated to file instant petition are that petitioner lodged a “complaint” against the respondents titled as:- “Muhammad Sultan vs, Sabir Hussain and 14 others” before the learned Addl: Sessions Judge, Tala Gang, District Chakwal. The said “complaint” was filed with the allegation of extra-judicial killing of son of the petitioner by the respondents who are police officials under section 302/364/109/149 PPC read with section 156 of Police Order 2002. The learned trial court took the cognizance of the offence and as such Criminal Petition No.163/2020 -:2:- issued process against the respondents. During pendency of the aforesaid “complaint”, the respondents moved an application before Lahore High Court, Lahore under section 526/561-A Cr.P.C with a prayer to transfer the trial of said “complaint” from the court of learned Addl: Sessions Judge, Tala Gang to any other court of competent jurisdiction at Lahore. The said application was adjudicated and it was allowed by a Single Bench of High Court vide order dated 28.01.2020. The learned Single Bench ordered to withdraw the trial of the said “complaint” from the court of learned Addl: Sessions Judge, Tala Gang, to be entrusted to learned Addl: Sessions Judge-I, Lahore. 3. Perusal of the “complaint” lodged by the petitioner discloses that the petitioner who himself is resident of District Sargodha was having close ties with the respondent No.1 however the relations became strained due to reasons substantiated in the aforesaid “complaint”. As per allegations contained in “complaint”, it is alleged that on 26.06.2013 at about 12:00 (midnight), two sons of the petitioner namely Muhammad Nasir and Muhammad Tariq were taken into custody by a raiding party comprises of police officials arrayed as respondents No.1 to 14 from Chak No.17 North, Tehsil Bhalwal District Sargodha. Muhammad Asif, third son of the petitioner was also taken into custody by the respondents on 26.06.2013 at about “Fajr Wala” from the precincts of village Malikwal adjacent to Tala Gang. In this connection, a Writ Petition No.17016/2013 was filed before Lahore High Court, Lahore. All three sons of the petitioner were allegedly kept in Police Station Defence─B, Lahore. During the period of their detention, son of the petitioner namely Muhammad Asif was separated from others thereafter he was taken to an unknown place where he was done to death while causing firearm injuries on various part of his body. The allegation further discloses that the death of Muhammad Asif Criminal Petition No.163/2020 -:3:- was result of conspiracy hatched by respondent No.1 in collusion with respondent No.6. In this connection, a case bearing FIR No.311/2013 dated 30.06.2013 offence under section 392 PPC was also got registered with Police Station Defence─B Lahore at the instance of respondents. 4. While opening his address at the very outset, learned counsel for the petitioner argued that the order impugned before this Court is bad, illegal hence not sustainable in the eyes of law. Further contends that the occurrence had initiated the moment two sons of the petitioner were taken into custody from village Chak No.17 North Tehsil Bhalwal whereas the third son of the petitioner was also taken into custody from village Malikwal adjacent to Tehsil Tala Gang District Chakwal. Contends that to assume jurisdiction for the purpose of trial, it is the basic law that it commence with the initiation of commission of an offence hence, this aspect was totally ignored by High Court while passing the order of transfer of the trial of the “complaint” from learned Addl: Sessions Judge Tala Gang to learned Addl: Sessions Judge-I, Lahore. The learned counsel for the petitioner has shown serious apprehension to the safety and security of the petitioner while pursuing this case at Lahore especially when all the respondents are police officials and they are also posted over there. The anxiety of the learned counsel has further extended that he would not avail justice in the given circumstances. 5. We have heard the learned counsel and gone through the record. 6. There is no denial to this fact that the death of son of the petitioner was reported within the local limits of Police Station Defence─B, Lahore, and in this regard, a case bearing FIR No.311/2013 dated 30.06.2013 offence under section 392 PPC was also registered with said police station. Post-mortem examination of son of the petitioner was Criminal Petition No.163/2020 -:4:- conducted at Lahore. In this connection, all the witnesses are also residents of Lahore. As per version of the prosecution, it is mentioned in the “complaint” that the sons of the petitioner were allegedly abducted from two distinct places on two different occasions i.e. on 26.06.2013 and 29.06.2013 respectively. However, they were kept in illegal confinement in Police Station Defence─B at Lahore. There is no denial to this fact from the prosecution version that son of the petitioner was allegedly done to death on the following day by a brutal act of the respondents. A constitutional petition was filed however order of the same was not placed on the record. We have noticed with concern that despite of a serious allegation of extra-judicial killing against the respondent, the petitioner adopted the recourse of law while filing “complaint” before the trial court with inordinate delay of more than three years. 7. A legal question has been raised qua the jurisdiction of the court and venue of trial as per law. Chapter XV Part VI of the Criminal Procedure Code deals with “Jurisdiction of the Criminal Courts in Inquiry and Trials”. Section 177 of the Code of Criminal Procedure relates to general principle of jurisdiction & venue of trial which is reproduced as under: - “177. Ordinary place of inquiry and trial. Every offence shall ordinary be inquired in and tried by a Court within the local limits of whose jurisdiction it was committed”. The language of the said provision is explicit in its context hardly leaving any ambiguity qua the interpretation with reference to jurisdiction and venue of the trial in ordinary circumstances however this principle has certain exceptions which are established from the bare reading of provision of section 179 & 180 Cr.P.C. To evaluate the exceptions of the general principle qua jurisdiction and venue of trial, provision of section 179 Cr.P.C is reproduced as under: - Criminal Petition No.163/2020 -:5:- “179. Accused triable in district where act is done or where consequences ensues. When a person is accused of the commission of any offence by reason of anything which had been done, and of any consequence which has ensued, such offence may be inquired into or tried by a Court within the limits of whose jurisdiction any such thing has been done, or any such consequence has ensued.” 8. Bare perusal of the language of the aforesaid provision depicts that if there is any departure from the general principle qua jurisdiction and venue of trial, two aspects are to be evaluated for the proper determination such as: - i. Commission of an offence. ii. Commission of an act and other consequences ensued. From the careful perusal of the language of the aforesaid provision, it is crystal clear that this provision has extended the limits of venue while classifying the principles to assume jurisdiction to take cognizance of an offence for the purpose of trial. We have observed that in the instant case, the controversy in between the parties relating to the venue of the trial. The prosecution itself is not certain about it because from the perusal of the “complaint”, the allegation of abduction had taken place from two distinct places whereas the jurisdiction and venue has been assailed by the prosecution at Tala Gang which itself create doubt qua the seriousness of the prosecution. As far as the place where the son of the petitioner was allegedly done to death there is no ambiguity that the offence of alleged murder of son of petitioner was committed at Lahore within the local limits of Police Station Defence─B Lahore. Post-mortem examination of son of the petitioner was also conducted at Lahore whereas the witnesses mentioned in the calendar of witnesses are residents of Lahore. All these facts are fully covered by the second part of section 179 Cr.P.C coming within the ambit of “ensued consequences”. This aspect was never denied by either of the party. We when evaluated Criminal Petition No.163/2020 -:6:- the facts and circumstances brought before us and juxtaposed them on the judicial parlance, we are of the considered view that impugned order by learned Single Bench of High Court was passed in its true perspective squarely in the spirit of law of land, therefore, the transfer of trial of “complaint” and entrusting the same to the court of learned Addl: Sessions Judge-I, Lahore was well within the parameter of the law hence, needs no exception. This petition is devoid of any legal force, therefore, the same is dismissed. 9. Before parting with the order, we have observed that the “complaint” was lodged way back on 12.11.2016, hence considerable time has already elapsed, therefore, we cannot loose sight of this aspect hence, we direct the learned trial court to expedite the proceeding before it and decide the lis preferably within three months from receipt of the order on merits with independent application of mind without being influenced by any observation of this Court. 10. The Senior Superintendent of Police (Operation), Lahore is directed to provide adequate security to the petitioner during trial. Judge Judge Judge Islamabad, 12.06.2020 Approved for reporting. Syed Rashid Maqsood

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Maqbool Baqar Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.166-L of 2020 (Against order dated 17.2.2020 of the Lahore High Court, Lahore passed in Cr.Misc No.2799-B/2020) Hassan Javed …Petitioner(s) Versus The State & Nasr Hussain …Respondent(s) For the Petitioner(s): Ch. Imran Raza Chadhar, ASC For the Complainant: Mr. M. Wasim, ASC For the State: Mr. Muhammad Jaffar, Additional Prosecutor General Punjab Ghulam Haider, I.O./ASI with record Date of hearing: 06.03.2020. ORDER Qazi Muhammad Amin Ahmed, J.- Hassan Javed, petitioner herein, anticipating arrest, seeks admission to bail; he has been accused by his employer Naseer Hussain for committing criminal breach of trust along with Abu Turab, Jarar Haider and Muhammad Atif in consequence whereof the company, styled as Dev Batch (Pvt.) suffered a loss of US $50000. It is alleged that, alarmed by persisting loss, the Director of the company arranged audit of the accounts to discover that the accused were receiving payments by the customers in their personal accounts and that they also transacted payments from company’s account for consignments personally settled with foreign customers. It is further alleged that when confronted with the foul play the accused confessed the guilt and paid back a sum of US $6261 with an undertaking for the remainder, subsequently retracted, prompting recourse to law. It is argued that the intended arrest is tainted with mala fide inasmuch as the process of law is being abused to convert a rendition issue into a criminal prosecution to cast its rigor upon the petitioner, vulnerably placed; there is nothing on the record to even obliquely Criminal Petition No.166-L of 2020 2 suggest breach of trust within the contemplation of section 405 of the Pakistan Penal Code, 1860, concluded the learned counsel. 2. Heard. Record perused. 3. Petitioner’s employment with the complainant is a common ground, nonetheless, accusation notwithstanding, learned law officer assisted by learned counsel for the complainant has not been able to point out, even obliquely, any material/evidence to establish alleged transactions, each admittedly documented; there is no statement on the record to confirm confession by the accused, either individually or jointly. In addition to the crime report, the only statement is that of Bilal Ahmed PW, who referred to some “voice messaging” by the petitioner as proof of his guilt without production thereof before the Investigating Officer, foreclosing the possibility of its forensic confirmation. Not even the time or date of impugned transactions is mentioned in the crime report; investigation sans the details as well. Loss, allegedly incurred by the employees, cannot be equated with breach of trust. Prosecution has to structure itself upon foundations yet to be laid and this by itself brings petitioner’s case within the remit of sub section 2 of Section 497 of the Code of Criminal Procedure, 1898, a coordinate requirement for the grant of relief, prayed for; the foregoing status of the case is confirmed by no other than the Investigating Officer himself vide case diary dated 8.1.2020. Even otherwise, argument that mala fide is lurking behind the intended arrest cannot be dismissed out of hand and as such given the petitioner’s clean past, his remission into custody would be a measure far from being conscionable. A case for judicial protection stands made out. The petition is converted into appeal; allowed; the petitioner is admitted to anticipatory bail on furnishing bonds in the sum of Rs.1,00,000/- (one lac) with two sureties each in the like amount to the satisfaction of the trial Court. Above observations shall not cast their shadow on the outcome of the trial, to be essentially settled on the strength of available evidence. Judge Judge Lahore, the 6th March, 2020 Not approved for reporting Ghulam Raza/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE MUNIB AKHTAR MR. JUSTICE QAZI MUHAMMAD AMIN AHMED Criminal Petition No.167-P of 2021 (Against the order dated 22.10.2021 passed by the Peshawar High Court Peshawar in Cr. M. No.3206- P/2021) Abdul Rehman … Petitioner(s) Vs The State and another … Respondent(s) For the Petitioner(s) : Mr. Muhammad Tariq Shah, ASC For the State : Sayyed Nayyab Hassan Gardezi, Deputy Attorney General with Tariq I.O. Date of Hearing : 09.12.2021 ORDER Qazi Muhammad Amin Ahmed, J.:- The petitioner is accused of having cyber stalked defamatory messages along with photographs of complainant’s daughter in law to her husband; the matter was reported to the Federal Investigating Agency, pursuant whereto, in the wake of a detailed inquiry, devices transmitting the impugned communication were secured upon his disclosure that conclusively established his culpability as the source behind family’s embarrassment. Attempts for post arrest bail failed lastly before a learned Judge-in-Chamber of the Peshawar High Court Peshawar vide impugned order dated 22.10.2021, leave to appeal wherefrom is being prayed for primarily on the ground that the offences complained do not fall within the prohibitory clause of section 497 of the Code of Criminal Procedure, 1898 and investigation being complete there is no justification to depart from the rule. Cr.P.167/2021 -:2:- 2. Heard. Record perused. 3. Ordinarily, upon conclusion of investigation in criminal cases falling outside the remit of “prohibition” motions for release on bail are favourably received, nonetheless, the practice is not without limitations. In the present case, privacy of a young lady has grievously been intruded to the utter embarrassment of her family; even her marriage went into peril. The incident was reported by her father-in-law and, thus, in the facts and circumstances of the case, we do not feel persuaded, in our discretion, by the submission made at the bar so as to take a different view than concurrently taken by the Courts below. Petition fails. Leave declined. However, the learned trial Court is directed to expeditiously proceed with the trial so as to conclude it within a period of four months. Investigating Officer, in attendance, is directed to ensure presence of witnesses on the date fixed for recording of evidence. Judge Judge Islamabad, the 9th December, 2021 Azmat/*

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Maqbool Baqar Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.1672-L of 2019 (Against order dated 02.12.2019 passed by Lahore High Court Lahore in Crl. Misc. No.51181-B of 2019) Zulfiqar …Petitioner(s) Versus The State & another …Respondent(s) For the Petitioner(s): Mr. Muhammad Ramzan Chaudhary, ASC Mr. Arshad Ali Chaudhry, AOR For the State: Mirza Abid Majeed, Deputy Prosecutor General Punjab with Abid, I.O. For the Respondent(s): Mr. Sajjad Hussain, ASC Date of hearing: 15.1.2020. ORDER Qazi Muhammad Amin Ahmed, J.- Behind bars since 14.06.2019, Zulfiqar, petitioner seeks admission to bail. It is alleged that on the fateful day, he alongwith his two sons accompanied by three unknown assailants, each armed with a .30 caliber pistol, confronted Muhammad Shakeel Jahangir, deceased in the backdrop of a motive relating to a dispute over property; he is attributed first shot to the deceased on his right shin followed by fire shots by the co-accused. Autopsy revealed three entry wounds. Effective role qua the deceased assigned in the crime report notwithstanding, the petitioner has been found by the Investigating Officer to have merely abetted the crime without being at the spot. 2. Heard. Record perused. 3. Accompanied by two able bodied sons, each lethally armed, whether the petitioner had any occasion to venture the Civil Petition No.1839 of 2018 2 occurrence is an issue to be best settled after recording of evidence. Number of fire shots sustained by the deceased is not commensurate with the volley of fires collectively made by the assailants including the unknown is a circumstance that additionally warrants further probe. Acceptance of plea raised by the petitioner, statedly in his late sixties, is yet another circumstance converging in his favour; his culpability certainly calls for further probe, thus, a case for his release on bail stands made out. The petitioner shall be released on his furnishing bonds in the sum of Rs.500,000/- with two sureties each in the like amount to the satisfaction of the learned trial Court. The petition is converted into appeal and allowed. Judge Judge Islamabad 15th January, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mushir Alam Mr. Justice Dost Muhammad Khan Criminal Petition No.169 of 2017 Against the judgment dated 14.10.2016 passed by Sindh High Court, Hyderabad Circuit, in Crl. Misc. Application No.D-430 of 2015 Rahib Ali Petitioner (s) VERSUS The State Respondent(s) For the Petitioner (s) : Mr. Amjad Ali Sahito, ASC Mr. Ghulam Rasool Mangi, AOR For the Respondent(s) : Mr. Abdullah Rajput, Addl. AG Date of Hearing : 30.10.2017 ORDER Mushir Alam, J.- Rahib Ali, convict/petitioner has impugned the order dated 14.10.2016 passed by learned bench of the High Court, whereby his application under section 397 read with section 561-A Cr.P.C seeking an order to compute two conviction sentences awarded in two different set of proceedings by two different courts to run concurrently, which application was declined on the ground, inter alia, that in one set of proceedings Supreme Court while enhancing the sentence from 14 years to life did not ordered the sentence in both the cases to run concurrently, therefore, it is not open for the High Court to order concurrent running of sentences in two different set of proceedings. 2. Learned counsel for the petitioner contends that it is now settled position in law that Courts ordinarily order running of two separate convictions recorded in two different set of trials by two different courts to be run concurrently, irrespective whether such conviction has been maintained, enhanced or modified by the appellate and or revisional Courts as the case may be, in any manner, whatsoever. Learned Additional Advocate General, in attendance concedes to such legal position. 3. We have heard the learned counsel for the petitioner as well as learned Advocate General and perused the record. Criminal Petition No.169 of 2007 2 4. In order to appreciate the contention of the learned counsel convictions recorded against the appellant in two separate trials are as follows:- “i. Crime Nos.23/1999, P.S. Tando Yousuf on 24.7.1999 & 62/1999 P.S. B-Section Latifabad on 28.11.1999 resulting in special case No.24/2000, U/s. 365-A PPC, 7-B ATA & 20 H.Ord., wherein he was found guilty alongwith his accomplice under section 6(2)(e) Anti-Terrorism Act and was ordered to imprisonment for life and forfeiture of their properties alongwith the offence under section 392 PPC and further sentenced to undergo Imprisonment for ten years and fine of Rs.50,000/- each and one year imprisonment more in case of default in payment of fine. Appeals bearing Nos.98, 99 & 100/2001 alongwith Jail Appeal No.9 of 2002 were preferred wherein the judgment of the trial Court was maintained by the Sindh High Court. The Appellant preferred Cr. As. No.418 & 419 of 2002, before this Court, resulted in extension of benefit U/s 382-B Cr.P.C. for sentence awarded under Sec.7 of the ATA & 392 of PPC to be run concurrently vide judgment dated 21.10.2011. ii. Crime No.01/2000, P.S. Bhatti Nagar U/s 365-A PPC & U/s 7(b) ATA 1997 in criminal case No.25/2002, wherein he alongwith his accomplices was convicted for 14 years and fine of Rs.100,000/- each and in default an imprisonment of one year. Appeals bearing Nos.11 & 12 of 2002 were preferred to the High Court by the accused wherein the sentences were maintained. On approach to the Honourable Supreme Court of Pakistan by way of Criminal Appeal No.420 of 2002 it was held that legal sentence under Section 365-A PPC, could not be less than life, which was accordingly enhanced to life imprisonment alongwith forfeiture of property, benefit U/s 382-B Cr.P.C. for sentences awarded under Sec.7 of the ATA & 392 of PPC was however given to be run concurrently vide judgment dated 02.02.2012 5. As noted in the first mentioned Crime No.23/1999 registered at Police Station Tando Yousuf on 24.7.1999 and Crime No. 62/1999 registered at Police Station ‘B’ Section, Latifabad on 28.11.1999 converted into Special Case No.24/2000 dated 24.11.2001, wherein conviction and sentence was handed down by the learned Judge Anti Terrorism Court, Hyderabad, under section 365-A PPC read with section 7-B ATA and section 20 Hadood Ordinance, to imprisonment for life, which conviction was maintained upto this Court in Criminal Appeals No.418 and 419 of 2002, benefit of section 382-B Cr.P.C was also extended and for the sentence awarded under section 7 of the ATA and section 392 PPC both were ordered to run concurrently. In instant matter the Petitioner who faced trial in another crime No.1/2000 registered at Police Station Bhitai Nagar, Hyderabad, tried as Special Case No.24 and 25/2000 respectively, wherein he was sentenced to 14 Criminal Petition No.169 of 2007 3 years, which was maintained by the High Court, when it came up for consideration in Criminal Appeal No.420 of 2002, before this Court, it was noted that 14 years sentence for kidnapping for ransom recorded by the trial Court and affirmed by the High Court is not a legal sentence, as the sentence for an offence under section 365-A PPC is either “death or imprisonment for life and forfeiture of property.” Consequently this court while affirming the conviction enhanced the sentence to life imprisonment alongwith forfeiture of properties and maintained amount of fine as provided for under the charging provision, this Court also ordered running of all the sentences awarded by the trial court, at one trial was ordered to run concurrently, which direction was in consonance with section 35 of the Cr.P.C 6. It seems that neither at the time of conviction in subsequent trial in criminal case No.25/2002 by the trial Court, nor at the time when his Criminal Appeals No.11 and 12 of 2002 were heard and decided on 21.5.2002 by the High Court and nor, at the time of hearing of Criminal Appeal No.420 of 2002 before this Court the petitioner herein and the Prosecutor General did not laid any information that the petitioner is already serving out life sentence awarded earlier in special case No.24/2000. Apparently, for this reason no direction in the nature of consolidation of sentences handed down in two separate trials was made. 7. In instant case after the conviction in second trial was maintained by this court, jail authority informed the Petitioner that life sentences awarded in two cases would run consecutively as there is no direction by the court to treat two separate life sentences to run concurrently, which mean that he would under go life sentence twice successively or one after the other, which prompted him to make application to the High Court under section 397 Cr.P.C read with Section 561-A Cr.P.C, seeking direction to treat life sentences awarded in two separate trial to run concurrently. The Application was dismissed by the High Court vide impugned order on the ground inter-alia “that the final convictions are based upon order/s as passed by the Honourable Supreme Court wherein one was enhanced. Without going into question of non disclosure of the earlier punishment reasons of which other than oversight may have been presented being not to disclose the chequered history of the accused in order to avoid any negative effect. We are of the understanding that it is not open for this court to order for concurrent Criminal Petition No.169 of 2007 4 running of both the sentences finally passed by the Hon’able Supreme Court of Pakistan and in the circumstances this application is dismissed”. 8. The question before us is that when sentence for imprisonment life or lesser sentence, in a subsequent trial is maintained or modified by the appellate or revisional Court, whether the Court seized of the subsequent trial or appeal arising there from after handing down conviction could order clubbing of two sentences one inflicted and undergoing in earlier trial with that inflicted in subsequent trial? Generally a sentence of imprisonment (subject to sections 381, 401 and 426-Cr.P.C) comes into effect the moment it is passed and unless the trial, appellate or revisional Court as the case may be orders consolidated computation of several conviction sentences passed in singular trail, the sentences run in a row, successively one after the other, however, section 35 of the Cr.P.C enables the trial and or higher Courts of appeal to order consolidation of several imprisonment sentences in the same trial 9. However, where an offender is serving out a substantive sentence of imprisonment is also subsequently convicted for any other offence(s) in another trial(s); per section 397 Cr.P.C later sentence(s) for imprisonment would generally commence at the expiration of earlier sentence(s) or putting it in other words sentences in several trial awarded to an offender/convict in successive trials would run back to back one after the expiration of other, unless the court directs that the subsequent sentence shall run concurrently with the sentence passed in earlier trial. Exception to this rule is in where the offender is serving out sentence of imprisonment in lieu or in default of payment of fine. Neither the trial nor the appellate or revisional courts have any jurisdiction to order consolidation of multiple sentences in lieu of fine. Multiple sentences of fine in a trial in lieu of fine in same or different cases would run successively (see section 64 to 70 PPC). 10. In cases where the subsequent conviction and sentence handed down by the trial court and for that matter the Appellate and or Revisional Court, is silent as to consolidation of two or more sentences or otherwise against a convict already undergoing a sentence; than in appropriate cases inherent jurisdiction of the High Court in terms of section 561-A Cr.P.C read with 397 Cr.P.C could always be invoked. In the case of Ammavasai Vs. Inispector of Police, 2000(9) SCC 759 Supreme Criminal Petition No.169 of 2007 5 Court India also held that consolidation of sentences against the same accused in various cases is permissible. 11. Present controversy is confined only to the extent of power of the courts to order concurrent running of multiple sentences passed in one and or more than one trial(s). Jurisdiction of the Courts to order multiple sentences in one trial to run concurrently or otherwise came up for consideration in number of cases including, Ghulam Haider versus The State (1984 SCMR 887), in said case accused was awarded death sentence under section 302 PPC on three Counts, death sentence was converted into for life on three count and ordered to be run concurrently by this court. In the case of Javail Shaikh v. the State (1985 SCMR 153) life sentence under Section 302 PPC and, 7 years under section 307 PPC were ordered to run concurrently. In Juma Khan and another versus The State (1986 SCMR 1573), convicts were sentenced to death on two count by the trial court, High Court maintained the conviction but reduced the sentence to life on each count without specifying whether the sentence would run consecutively or concurrently. Jail petition was also dismissed by this court. Convicts, on being informed by the jail authority that they would have to undergo two terms of 25 years each one after the other; moved High Court under section 561-A Cr.P.C to seek clarification on such count. The application was dismissed on the ground, inter-alia, that it cannot review the conviction as it was maintained by Supreme Court. This is exactly what has happened in the case in hand. This court when approached by the convicts, (relying on the case of Javaid Shaikh, supra) held that under section 35 of the Cr.P.C the total period of imprisonment at one trial cannot exceed 25 years, if the sentence imposed on the petitioner in this case are allowed to take affect consecutively the sentence would exceed 25 years, which it was held, is not permitted by section 35 ibid. In Muhammad Ittefaq versus The State (1986 SCMR 1627) this court maintained sentence for life on two counts and one for seven years as handed down by the trial court and no direction was made for the concurrent running of sentence either by the trial, or this Court. However, subsequently on criminal miscellaneous application in exercise of power under section 35(2) Cr.P.C the omission was rectified and this Court (relying on Javaid Shaikh, supra) ordered that three sentences two for life and one for seven years in same trial to run concurrently. In case of Khan Zaman Khan and others versus The State (1987 SCMR 1382), where the High court maintained Criminal Petition No.169 of 2007 6 the conviction but modified the sentence one from death to life imprisonment on two count and the sentences were ordered to run consecutively. In appeal this court exercising enabling power under section 35 (2) Cr.P.C and follwing above cited cases ordered the sentences to run concurrently. In Faiz Ahmed and another versus Shafiq-ur-Reham and another (2013 SCMR 583) and in Muhammad Sharif versus The State (2014 SCMR 668 (Order on Suo Moto Review Petition) where convicts were sentenced on more than one count this Court in consideration of fact that multiple offences committed by the offender in a sequel of same transaction could be convicted and sentences for each of the offences charged and proved against him under respective penal provisions separately, however; multiple sentences for numerous offences in one trial, as could be seen from the precedents noted above, is treated as a single sentence for the purposes of appeal [see section 35(3) Cr.P.C] and generally multiple sentences of imprisonment run consecutively unless ordered to run concurrently, is being consistently followed as rule of thump. 12. Generally, where a convict is undergoing sentence in earlier conviction and later in a separate trial(s) stand convicted and sentenced for imprisonment for life or otherwise for a shorter term, sentence in subsequent trial commences after sentence in earlier trial is exhausted. However, the trial court seized of subsequent trial and the Appellate Courts in appeal arising there from are empowered under section 397 Cr.P.C to direct that the subsequent sentence(s) to run conjointly with previous sentence(s) of imprisonment of life or otherwise as the case may be. In the cases cited as Mst. Zubaida versus Falak Sher and others (2007 SCMR 548), this Court attending to question of multiple convictions in more than one crime and trial took charitable view of Section 397 Cr.P.C, while declining leave; observed that section 397 Cr.P.C empowers the court to direct the subsequent sentence would run concurrently with the previous sentence. In the case of. Shahista Bibi and another versus Superintendant, Central Jail, MACH and 2 others (PLD 2015 Supreme Court 15) this court examined provisions of section 35 Cr. P.C together with section 397 Cr.P.C also took charitable view and adopted interpretation beneficial to the accused by ordering concurrent running of sentence in two different trials. In a more recent pronouncement in the case of Sajjad Ikrram and others versus Sikandar Hayat and others (2016 SCMR 467) this Court at page 473 held that Criminal Petition No.169 of 2007 7 “The provisions of section 397 Cr.P.C confers wide discretion on the court to extend such benefit to the accused in case of peculiar nature” and court further observed “that there is nothing wrong in treating the sentence of imprisonment for life of convict/appellants on three count to run concurrently.” 13. In view of the discussion made above, position that emerges is that the Courts in Pakistan generally take charitable view in the matter of sentences affecting deprivation of life or liberty of a person and unless some aggravating circumstances do not permit so, liberally exercise enabling power under section 35 and section 397 Cr.P.C respectively to order concurrent running of sentence in one trial and so also consolidation of earlier sentence while handing down sentence of imprisonment in a subsequent trial. 14. Taking stock of the legal position as noted above, examining the case in hand, in the first mentioned crime, the petitioner was convicted for life sentence and in the second mentioned case his 14 years imprisonment sentence was enhanced by this Court to life imprisonment. Treating and computing life sentences in two different trial/transactions to run consecutively or second sentence after the exhaustion of the first mentioned life sentence would be in negation of section 57 of PPC, as amended, which prescribes that sentence of imprisonment for life corresponds to maximum imprisonment for 25 years and in any case cannot be less than 15 years (per Rule 140 of the Pakistan Prison Rules 1978); after earning remissions as may be extended by the executive functionaries from time to time but subject to section 401 Cr.P.C, Rule 216 and Rule 218 of the Pakistan Prison Rules, 1978. 15. Learned Counsel for the Petitioner/convicts concedes that at the time of proceeding with the second conviction before this court earlier conviction was not brought to the notice of this Court nor there was anything on record for this Court to take into consideration the earlier conviction while handing down sentence to life in Criminal Appeal No.420 of 2002 on 28.8.2012 otherwise the Court would have considered and ordered running of the imprisonment sentence to run concurrently. However sentence in lieu of fine attached to a substantive sentence of imprisonment for life or otherwise would run after the substantive sentence(s) are exhausted. Courts have no jurisdiction to order sentence of fine to run concurrently with substantive sentence(s), for the simple Criminal Petition No.169 of 2007 8 reason that imprisonment in lieu of or, in default in payment of fine is not a sentence but a penalty, which a convict sustain as a consequence for non payment of fine the (see also section 64 to 70 P.P.C). Courts, however, are empowered under section 388 Cr.P.C to regulate the recovery of fine, in instalment by releasing offender on completion of substantive sentence of imprisonment, on furnishing bond and or surety as may be ordered b y the court. 16. Before parting with this judgment, we may well observe that section 35, Cr.P.C subject to section 71 of Pakistan Penal Code empowers not only the trial Court to hand down several Punishment/sentences to a person charged for multiple offence in same trial and in its discretion direct that such convection/sentence may run concurrently (per proviso thereto, in no case be more than 14 years in aggregate) even the Appellate Court while hearing the appeal against the conviction may direct several sentences/punishment handed down in same trial; to run concurrently. Whereas section 397 Cr.P.C; enables and empowers the trial, and or Appellate/Revisional court, as the case may be, in a subsequent trial or in appeal or revision arising out of subsequent trial to order for the consolidation of sentence in subsequent trial with the sentence(s) handed down in earlier trail(s) as may be maintained or modified in appeal/revision arising there from. In case earlier conviction was not brought to the notice of the at the time of handing down the subsequent conviction sentence the Trial or Appellate/Revisional Court could exercise such jurisdiction even after the sentence of imprisonment in subsequent trial is announced in exercise of its inherent jurisdiction under section 561-ACr/PC read with section 397 Cr.P.C, provided of course, where the trial, or superior courts of appeal have specifically and consciously ordered the sentences either in same trial or in subsequent trial to run consecutively. 17. In the light of discussion made above, there remains no doubt that the High Court and so also this Court have jurisdiction under section 561-A read with section 35 and or section 397 Cr.P.C as the case may to ordered such multiple sentences in same transaction/trial or in a separate and subsequent trial to run concurrently. 18. It seems that when Criminal Appeal No.420 of 2002 arising out of consolidated judgment dated 21.5.2002 (arising out of Criminal Appeals No.11 and 12 of 2002 from the judgment of the High Court) came up for hearing Criminal Petition No.169 of 2007 9 neither the petitioner herein nor the Prosecutor General informed this Court that the petitioner had been tried in earlier crime of similar nature, has been sentenced to life, which conviction and sentence of imprisonment was maintained by this Court, apparently for this reason no direction or order to treat sentences of imprisonment awarded in separate and successive trial to run concurrently was made. 19. In this view of the matter, we would convert this petition into appeal and allow and direct that sentences awarded in both the trials as detailed in paragraph 4 above to be run concurrently. JUDGE JUDGE Islamabad, the 30th October, 2017 Arshed Approved for Reporting

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Faisal Arab Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.169 of 2020 (Against judgment dated 13.2.2020 passed by the High Court of Sindh, Karachi in Cr. Bail Application No.1327 of 2019) Ghulam Farooq Channa …Petitioner(s) Versus Special Judge ACE (Central-I) Karachi & another …Respondent(s) For the Petitioner(s): Mr. Ghulam Sajjad Gopang, ASC with petitioner For the State: N.R. Date of hearing: 03.03.2020. JUDGMENT Qazi Muhammad Amin Ahmed, J.- Avoiding arrest since 28.8.2019, in the wake of dismissals, Ghulam Farooq Channa, Secretary Union Council Jamshed Town, Karachi seeks bail in anticipation thereto; he is accused of having fabricated a fake death certificate of one Naseem Begum Chotani, on the basis whereof, his co-accused attempted to hoodwink judicial process to grab valuable properties vesting in the lady. Upon disclosure, the scam was reported to the Anti-Corruption Authorities and pursuant to an inquiry, the petitioner has been arrayed as accused alongside the accomplices. 2. Learned counsel for the petitioner contends that alleged fabrication was reported after five years and in fact was committed by the officials at the higher rung and that the petitioner was being hounded as a scapegoat to save the real culprits; it is argued that the co-accused have since been enlarged on post arrest bail and, thus, petitioner’s remission into custody is not likely to serve any useful purpose, relative to investigation. 3. Heard. Cr. Petition No.169 of 2020 2 4. Grant of bail to an accused required in a cognizable and non-bail offence prior to his arrest is an extraordinary judicial intervention in an ongoing or imminent investigative process. It clogs the very mechanics of State authority to investigate and prosecute violations of law designated as crimes. To prevent arrest of an accused where it is so required by law is a measure with far reaching consequences that may include loss or disappearance of evidence. The Statute does not contemplate such a remedy and it was judicially advented way back in the year 1949 in the case of Hidayat Ullah Khan Vs. The Crown (PLD 1949 Lahore 21) with purposes sacrosanct and noble, essentially to provide judicial refuge to the innocent and the vulnerable from the rigors of abuse of process of law; to protect human dignity and honour from the humiliation of arrest intended for designs sinister and oblique. The remedy oriented in equity cannot be invoked in every run of the mill criminal case, prima facie supported by material and evidence, constituting a non-bailable/cognizable offence, warranting arrest, an inherent attribute of the dynamics of Criminal Justice System with a deterrent impact; it is certainly not a substitute for post arrest bail. The petitioner was at the helm of affairs when the bogus certificate was issued; cognizance on belated disclosure does not mitigate the culpability nor can be equated with mala fide. Release of co-accused on post arrest bails is entirely beside the mark for the reasons stated above. View taken by the learned High Court of Sindh as well as the learned Special Judge (Central-I) Karachi is in accord with the law, being consistently followed by this Court till date. Petition fails. Leave declined. Judge Judge Islamabad, the 3rd March, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition Nos.17-L/2018 & 1338/2017 (Against the order dated 15.11.2017 of the Lahore High Court Bahawalpur Bench passed in Cr. Appeal No.83/2014 and Cr. Appeal No.88 of 2014 along with M.R. No.7/2014) Muhammad Khan alias Kali (in Cr.P. No.17-L/2018) Laal Khan (in Cr.P. No.1338/2017) .…Petitioner(s) Versus The State and another (in Cr.P. No.17-L/2018) The State and 03 others (in Cr.P. No.1338/2017) ….Respondent(s) For the Petitioner(s): Mr. Muhammad Sharif Bhatti, ASC Sardar Muhammad Shahzad Khan Dhukar, ASC (in Cr.P. No.17-L/2018) Syed Aasim Ali Bokhari, ASC (in Cr.P. No.1338/2017) For the Respondent(s): N.R. (in both cases) Date of hearing: 06.08.2020. ORDER Qazi Muhammad Amin Ahmed, J.- Muhammad Javed, 28/29, was clubbed to death at 2:00 p.m. on 10.12.2012 within the remit of Police Station Donga Bonga, District Bahawalnagar, in the backdrop of an early morning dispute over cattle grazing; Muhammad Khan alias Kali, petitioner along with Muhammad Din alias Pappu and Nadeem alias Ghona were jointly blamed for fatal injuries while Muhammad Nawaz, Shah Muhammad and Mahna, already present at the scene, were alleged to have exhorted the assailants. Autopsy suggested two injuries in the temporal region accompanied by a slant mark on the chest as collective cause of death mainly on account of fracture of skull. Upon conclusion of trial, the petitioner along with Nadeem alias Ghona was returned a guilty verdict; convicted under clause (b) of section 302 of the Pakistan Penal Code, 1860, they were sentenced to death vide judgment dated 18.2.2014. Petitioner’s conviction was maintained, albeit with alteration of death penalty into imprisonment for life while Nadeem alias Ghona was acquitted of the charge vide impugned judgment dated 15.11.2017; equally dissatisfied but for their own reasons, both sides, have assailed the judgment. Criminal Petition Nos.17-L/2018 & 1338/2017 2 2. The accused are divided into two groups; first comprising Muhammad Din alias Pappu, Muhammad Khan alias Kali and Nadeem alias Ghona; they are blamed to have jointly beaten the deceased to death; in the second group, Muhammad Nawaz son of Muhammad Sadiq, Shah Muhammad son of Noor Din and Mahna son of Sharaf Din, allegedly, exhorting community of intention, joined the former a while later, however, without inflicting any harm to the deceased. The acquittal of non-participating second set of accused has not been challenged, however, Din Muhammad alias Pappu let off by the trial Court and the acquittal of Nadeem alias Ghona by the High Court have been disputed by the complainant throughout alongside the challenge thrown by the convict. 3. Learned counsel for the complainant contends that roles assigned to the Muhammad Khan alias Kali, Nadim alias Ghona and Din Muhammad alias Pappu are clearly borne out from medical evidence and once the learned trial Judge as well as the High Court had believed the ocular account qua Muhammad Khan alias Kali, there was no occasion to let off Nadim alias Ghona and Din Muhammad alias Pappu in view of their indivisibly inculpatory participation in the crime and as such the error cannot be countenanced without jeopardizing the fate of the entire case into peril, at the cost of miscarriage of justice, therefore, impugned conclusions being impossible, re- appraisal of evidence would be most called for in circumstances. Conversely, learned counsel for Muhammad Khan alias Kali contends that the courts below had rightly acquitted the co-accused, including those, assigned effective roles qua the deceased, therefore, in the absence of any independent corroboration, petitioner is also entitled for a clean chit. 3. In the peculiar facts and circumstances of the case, it would be expedient to re-examine the evidence in the interest of justice. Leave is granted in both the cases. Send for Nadeem alias Ghona and Muhammad Din alias Pappu, respondents, through bailable warrants in the sum of Rs.500,000/- with one surety each in the like amount, returnable to the Deputy Registrar (Judicial) of this Court. Judge Judge Islamabad, the 6th August, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, C.J MR. JUSTICE IJAZ AHMED CHAUDHRY MR. JUSTICE GULZAR AHMED CRIMINAL PETITION NO. 170 OF 2013 Haseeba Taimor Afridi …. Petitioner Versus The State & another …. Respondents For the Petitioner Malik Waheed Anjum, ASC Mr. Arshad Ali Chaudhry, AOR For the State Mr. Asjad Javed Ghurral, Addl. P.G. a/w Mr. Imtiaz Ahmed Butt, SHO Asghar Ali, S.I. For the Complainant Mr. Zulfiqar Ahmed Bhutta, ASC Date of hearing 05.6.2013 ORDER Heard learned counsel for the parties. Learned Additional Prosecutor General candidly conceded that so far prosecution has not collected incriminating evidence against the petitioner to justify her involvement/detention. 2. We fail to understand that when there was no incriminating evidence as to why the police caused the arrest of Crl.P. 170/2013 2 the petitioner who is stated to be of 15 years of age and subsequent thereto despite of subjecting her to investigation no evidence was brought on record then why she was sent to judicial lockup. In this behalf the Supervisory Officer, responsible to monitor the investigation of the subordinate officers, is equally responsible. Not only this, the Magistrate Raja Faisal Rasheed who had been granting remand, should have also looked into the file instead of remanding the petitioner to police custody without any justification. Under section 167 Cr.P.C. it is the duty of the Magistrate to satisfy himself that there are grounds for believing that the accusation or information is well founded for justifying custody of an accused with the police. 3. In the circumstances we allow ad-interim bail to the petitioner Haseeba Taimoor Afridi d/o Taimoor Afridi subject to her furnishing personal bond in the sum of Rs.5,000/- (Rupees five thousand) only to the satisfaction of the Ilaqua Magistrate. 4. Explanation be called for from the SSP In-charge of Investigation, the SHO as well as the Investigating Officer/Officers, named above, to state the reason for causing arrest and detention of the petitioner. 5. The Magistrate shall also send his explanation through the Sessions Judge, Rawalpindi, to explain as to why without adhering to the relevant provisions of law, noted Crl.P. 170/2013 3 hereinabove, in a mechanical manner police remand was granted permission of judicial remand was granted followed by judicial remand as presently she is in custody in Adiala Jail. Put up on 7th June, 2013. Chief Justice Judge Judge Islamabad 05th June, 2013 (Zulfiqar)

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE YAHYA AFRIDI MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI MR. JUSTICE MUHAMMAD ALI MAZHAR CRIMINAL PETITION NOs. 1710-L & 1329 OF 2017 (Against the judgment dated 14.11.2017 passed by the Lahore High Court, Lahore in Murder Reference No. 414/2014 and Criminal Appeal No. 2278/2014) Maqsood Alam (In Cr.P. 1710-L/2017) Mukhtar Ahmed, complainant (In Cr.P. 1329/2017) …Petitioner(s) VERSUS The State etc (In Cr.P. 1710-L/2017) Maqsood Alam etc (In Cr.P. 1329/2017) …Respondent(s) For the Petitioner(s): Sardar Muhammad Latif Khan Khosa, Sr. ASC (In Cr.P. 1710-L/2017) Mr. Aftab Ahmed Bajwa, ASC Sh. Mahmood Ahmad, AOR (In Cr.P 1329/2017) For the State: Mirza Abid Majeed, DPG Date of Hearing: 12.10.2023 JUDGMENT CRIMINAL PETITION NO. 1710-L OF 2017 SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Petitioner Maqsood Alam along with four co-accused was tried by the learned Additional Sessions Judge, Khushab, in a private complaint lodged under Sections 302/109/34 PPC. The private complaint was instituted being dissatisfied with the investigation conducted by the Police in case registered vide FIR No. 102 dated 01.12.2011 under Sections 302/109/34 PPC at Police Station Noshehra District Khushab for committing murder of Muhammad Munir and Muhammad Anwaar, maternal uncle and brother of the complainant. The learned Trial Court vide its judgment dated 20.12.2014 while CRIMINAL PETITION NOs. 1710-L & 1329 OF 2017 -: 2 :- acquitting the co-accused of the petitioner, convicted the petitioner under Section 302(b) and sentenced him to death on two counts. He was also directed to pay Rs.100,000/- on two counts as compensation to the legal heirs of each deceased or in default whereof to further undergo SI for six months. In appeal the learned High Court while maintaining the conviction of the petitioner Maqsood Alam, altered the sentence of death into imprisonment for life on two counts. The amount of compensation and the sentence in default thereof was also maintained. Benefit of Section 382-B Cr.P.C. was also extended to the petitioner. 2. The prosecution story as given in the judgment of the learned High Court reads as under:- “2. Prosecution story, as set out in the FIR (Ex.PJ) registered on the statement of Mukhtar Ahmad, complainant (PW.7) is that he was employed in Atomic Energy, Chowk Grot Jauharabad. Muhammad Munir maternal uncle (mamoon) of complainant was Deputy Manager in PASCO Department at Sargodha. On 01.12.2011 at around 2.20 p.m. the complainant along with his maternal uncle Muhammad Munir came to their native village Mauza Dhadhar for offering fateha khawani of their forefathers. Muhammad Munir and Muhammad Anwaar brother of complainant went to graveyard of Mauza Dhadhar for offering fateha khawani. Subsequently, the complainant, his cousin (khalazad) Elahi Bakhsh and Sarwar Noor proceeded towards graveyard. When maternal uncle and brother of complainant were offering fateha khawani, all of a sudden, Maqsood Alam (appellant) armed with rifle and an unknown co- accused armed with pistol 30 bore arrived at graveyard and raised lalkara that they would not spare them (maternal uncle and brother of complainant). Then Maqsood Alam (appellant) fired at maternal uncle of complainant which landed on right side of his chest. Second fire made by Maqsood Alam also hit him on upper outer left side of chest. Maqsood Alam fired third shot which landed on back side of right elbow of complainant's maternal uncle. Fourth fire made by the appellant hit maternal uncle of complainant underneath his right buttock, who fell down. Unknown co-accused fired with pistol at Muhammad Anwaar brother of complainant hitting him on left outer side of chest below armpit. Then Maqsood Alam (appellant) made another fire shot which landed on abdomen of maternal uncle of complainant. Both the injured fell on the ground. On seeing the complainant party, Maqsood Alam and unknown co-accused decamped from the spot. The complainant party reached the spot but Muhammad Munir and Muhammad Anwaar succumbed to the injuries. Motive behind the occurrence as alleged in the FIR was that disputes regarding rishta were going on between the complainant party and Maqsood Alam (appellant) etc. It was further alleged that the occurrence was committed by Maqsood Alam etc. on the abetment of Mehboob Elahi, Bashir Alam and Amir Karim, which occurrence was CRIMINAL PETITION NOs. 1710-L & 1329 OF 2017 -: 3 :- witnessed by the complainant, his khalazad Elahi Bakhsh and Sarwar Noor. Dead bodies of both the deceased were taken to Civil Hospital, Noshehra on separate private vehicles. The unknown co-accused of the appellant was nominated as Fawad Alam by the complainant through supplementary statement on 17.12.2011.” 3. The conviction of the petitioner was recorded in a private complaint. The complainant produced cursory statements whereafter the formal charge was framed against the petitioner. In order to prove its case the prosecution produced eight PWs and six CWs. In his statement recorded under Section 342 Cr.P.C, the petitioner pleaded his innocence and refuted all the allegations leveled against him. He did not make his statement on oath under Section 340(2) Cr.P.C in disproof of allegations leveled against him. However, he produced some documentary evidence in his defence. 4. At the very outset, learned counsel for the petitioner argued that the witnesses of the ocular account were chance and related witnesses and there are glaring contradictions and dishonest improvements in their statements, which escaped the notice of the learned courts below. Contends that the prosecution story is negated by the medical evidence, therefore, the same has lost its sanctity and the conviction cannot be based upon it. Contends that the recoveries and the motive have been disbelieved by the learned courts below, which causes a doubt in the prosecution case. Contends that on the same set of evidence, the co-accused of the petitioner namely Fawad Alam, who was ascribed the similar role has been acquitted but the petitioner has been convicted without any further corroboration. Lastly contends that the reasons given by the learned High Court to sustain conviction of the petitioner are speculative and artificial in nature, therefore, the impugned judgment may be set at naught. 5. On the other hand, learned Law Officer assisted by learned counsel for the complainant vehemently opposed this petition on the ground that prosecution witnesses had no enmity with the petitioner to CRIMINAL PETITION NOs. 1710-L & 1329 OF 2017 -: 4 :- falsely implicate him in this case. It has been contended that to sustain conviction of the petitioner, the prosecution has placed on record trustworthy and reliable evidence, therefore, the petitioner does not deserve any leniency from this Court, rather his sentence may be enhanced. 6. We have heard learned counsel for the parties at some length and have perused the evidence available on the record with their able assistance. 7. A bare perusal of the record reflects that the unfortunate incident wherein two persons lost their lives took place on 01.12.2011 at about 02:20 pm in the graveyard of Mauza Dhadhar, District Khushab. Initially, the petitioner Maqsood Alam and one unknown person were nominated to have committed the crime. The petitioner Maqsood Alam was ascribed the role of causing injuries with rifle to Muhammad Munir, maternal uncle of the complainant, while the unknown accused was ascribed the role of causing firearm injuries with pistol at the body of Muhammad Anwaar, brother of the complainant. The complainant Mukhtar Ahmed (PW-7) and Elahi Bakhsh (PW-8) were said to have witnessed the whole occurrence. The complainant firstly disclosed the name of the co-accused as Fawad Alam on 17.12.2011 through his supplementary statement. However, the said Fawad Alam was acquitted by the learned Trial Court mainly on the ground that it was broad day occurrence whereas the PWs and the accused persons were residents of the same village Dhadhar. There is nothing on the record that Fawad Alam was not resident of the same village rather he had studied in High School at Noshehra, which clearly reflects that he had been living in the same village till attaining the age of puberty. There is no denial to this fact that the eye-witnesses are closely related to each other and even the relationship with the accused is not denied, which has been admitted by them. The PWs were acquainted with the accused being the co-villagers. In view of the fact that the parties were known to each other, non- mentioning the name of the co-accused Fawad Alam in the crime report CRIMINAL PETITION NOs. 1710-L & 1329 OF 2017 -: 5 :- shifted the burden on the shoulder of the prosecution to assign justiciable reasons for non-identification of Fawad Alam at the time of occurrence viz a viz the non-mentioning of his name in the crime report, especially when it is an admitted fact that it is not the case of prosecution that the accused committed the crime with muffled faces. According to Ghulam Bahoo (PW- 5) and Ahmad Nawaz (PW-6), two days prior to the occurrence i.e. on 29.11.2011, they were present in the graveyard in connection with the funeral ceremony of one Ahmad Khan wherein they overheard petitioner Maqsood Alam showing his inclination regarding the instant occurrence. The learned Trial Court while acquitting co-accused Fawad Alam rightly observed that when the PWs had overheard the malicious intent of petitioner Maqsood Alam with the allegiance of Fawad Alam on 29.11.2011 then it was obligatory for them to disclose the same with particulars of Fawad Alam to the complainant as well as while making statements under Section 161 Cr.P.C. Although the complainant challenged the acquittal of said Fawad Alam before the learned High Court by filing a petition against acquittal but later on withdrew the same, which means that the findings of the learned Trial Court regarding the acquittal attained finality and the prosecution case to the extent of murder of Muhammad Anwaar has been disbelieved. In these circumstances, more caution was needed to decide the case of the petitioner Maqsood Alam. We have noted that the complainant was employee of Pakistan Atomic Energy Commission, Jauharabad, which was at a distance of 100 kilometers from the place of occurrence. During the course of proceedings before the Trial Court, an attested copy of attendance register (Ex.DM) was placed on record, which shows that on the day of occurrence the complainant was present in his office. We have also noted that according to the witnesses, the accused fired at the deceased from a distance of 3/4 karams but the medical record shows that there was blackening and charring around the wounds, which suggests that the injuries were caused from a close range, which further negates the ocular account. There were only two eye-witnesses of the occurrence, who admittedly, have been disbelieved to the extent of co-accused of the petitioner. We have noted CRIMINAL PETITION NOs. 1710-L & 1329 OF 2017 -: 6 :- that the recovery from the petitioner Maqsood Alam is inconsequential because admittedly no crime empty was collected from the place of occurrence. Motive has also rightly been disbelieved by the learned High Court by holding that it is a vaguely formulated motive and no evidence in support of the same has been placed on record. When the ocular account of the two eye-witnesses had been disbelieved by the learned Trial Court against the acquitted co-accused, who was alleged to have played a similar role in the occurrence, then the same evidence could not be relied upon to convict the petitioner on capital punishment unless there was an independent corroboration and some strong incriminating evidence to the extent of his involvement in commission of the offence but as discussed above the same is lacking in the instant case. In the case of Niaz Vs. The State (PLD 1960 SC 387) B.Z. Kaikaus, J. speaking for the Court held as under:- “if the Court finds that the number mentioned by interested persons may have been exaggerated their word cannot be made the basis of conviction and the Court will have to look for some additional circumstance which corroborates their testimony. This circumstance need not be such that it can of its own probative force bring home the charge to the accused. It should, however, be a circumstance which points to the inference that the particular accused whose case is being considered did participate in the commission of the offence. The force that such circumstance should possess in order that it may be sufficient as corroboration must depend on the particular circumstance of each case. However, the circumstance itself must be proved beyond all reasonable doubt.” 8. In Nazir Vs. The State (PLD 1962 SC 269) this Court explained the Niaz supra judgment in the following terms:- “There cannot be an inflexible rule that the statement of an “interested” witness can never be accepted without corroboration. By what was said in Niaz Vs. The State (PLD 1960 SC 387) it was not meant to lay down any rule of law though it explained for the guidance of Courts the Supreme Court’s approach to the problem that generally confronts the Courts in cases of crime by violence. There may be an interested witness whom the Court regards as incapable of falsely implicating an innocent person. But he will be an exceptional witness and, so far as an ordinary interested witness CRIMINAL PETITION NOs. 1710-L & 1329 OF 2017 -: 7 :- is concerned, it cannot be said that it is safe to rely upon his testimony in respect of every person against whom he deposes. In order, therefore, to be satisfied that no innocent persons are being implicated along with the guilty, the Court will in the case of an ordinary interested witness look for some circumstance that gives sufficient support to his statement so as to create that degree of probability which can be made the basis of conviction. This is what is meant by saying that the statement of an interested witness ordinarily needs corroboration.” 9. It is settled principle of law that the conviction must be based on unimpeachable, trustworthy and reliable evidence. Any doubt arising in prosecution case is to be resolved in favour of the accused and burden of proof is always on prosecution to prove its case beyond reasonable doubt. It is also an established principle of law and equity that it is better that 100 guilty persons should let off but one innocent person should not suffer. The peculiar facts and circumstances of the present case are sufficient to cast a shadow of doubt on the prosecution case, which entitles the petitioner benefit of the doubt not as a matter of grace and concession but as of right. For the accused to be afforded this right of the benefit of the doubt, it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must go to the accused. Reliance is placed on Mst. Asia Bibi Vs. The State (PLD 2019 SC 64), Tariq Pervaiz v. The State (1995 SCMR 1345), Ayub Masih v. The State (PLD 2002 SC 1048) and Abdul Jabbar vs. State (2019 SCMR 129). 10. For what has been discussed above, this petition is converted into appeal, allowed and the impugned judgment is set aside. The petitioner is acquitted of the charge. He shall be released from jail unless detained/required in any other case. CRIMINAL PETITION NO. 1329 OF 2017 11. In view of the judgment passed in the connected Criminal Petition No. 1710-L/2017, this petition seeking enhancement of the sentence awarded to the petitioner/convict Maqsood Alam has become infructuous and the same is dismissed accordingly. CRIMINAL PETITION NOs. 1710-L & 1329 OF 2017 -: 8 :- 12. The above are the detailed reasons of our short order of even date. JUDGE JUDGE JUDGE Islamabad, the 12th of October, 2023 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MAQBOOL BAQAR MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI MR. JUSTICE JAMAL KHAN MANDOKHAIL CRIMINAL PETITION NO. 172-P OF 2021 (On appeal against the judgment dated 15.11.2021 passed by the Peshawar High Court, Peshawar in Cr. MBA No. 3288-P/2021) Gul Nawab … Petitioner VERSUS The State through A.G. KPK and another … Respondents For the Petitioner(s): Syed Abdul Fayaz, ASC For the Complainant: In person For the State: Mr. Arshad Hussain Yousafzai, ASC Mr. Akbar Rehman, I.O Date of Hearing: 25.01.2022 ORDER SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through the instant petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed the order dated 15.11.2021 passed by the learned Single Judge of the Peshawar High Court, Peshawar, with a prayer to grant post-arrest bail in case registered vide FIR No. 732 dated 25.08.2012 under Sections 302/34 PPC at Police Station Nowshera Kalan, District Nowshera, in the interest of safe administration of criminal justice. 2. Briefly stated the allegation against the petitioner is that he along with co-accused while armed with firearms attacked on the complainant party and due to the fire shots made by them the nephew of the complainant has lost his life. 3. At the very outset, it has been argued by learned counsel for the petitioner that the petitioner has been falsely roped in Criminal Petition No. 172-P/2021 -: 2 :- this case against the actual facts and circumstances. Contends that the complainant has involved four accused in the present case and the role ascribed to each one of them including the petitioner is of general nature. Contends that four empties of 7.62 bore were collected from the spot whereas no weapon has been recovered from the possession of the petitioner, therefore, it cannot be said with certainty as to whose fire hit the deceased. Contends that in-fact the complainant party was aggressor and one person from the petitioner’s side also lost his life during the incident and in this regard the petitioner’s side has also lodged FIR bearing No. 733/2012 under Sections 302/34 PPC against the complainant party on the same day and time. Lastly contends that the case of the petitioner falls within the ambit of further inquiry, therefore, he may be granted bail in the interest of justice. 4. On the other hand, learned State counsel has defended the impugned order whereby post-arrest bail has been declined to the petitioner. He contended that the petitioner has been specifically nominated in the crime report with a specific role of firing at the deceased and he remained absconder for a long period of nine years, which shows his guilty mind, therefore, he does not deserve any leniency by this Court. He placed reliance on Nasir Muhammad Wassan Vs. The State (1992 SCMR 501) to contend that mere registration of cross-version could not be a ground for grant of bail. 5. We have heard learned counsel for the parties at some length and have perused the record with their able assistance. Perusal of the contents of the crime report clearly reflect that the petitioner along with co-accused launched murderous assault on the complainant party while using firearms resulting into death of the nephew of the complainant. We have noted that only a general role of firing has been ascribed to the petitioner without any specification qua (i) kind of weapon, (ii) part of the body which has been hit, and (iii) any recovery of the empties from the place of occurrence specifying the accusation against the petitioner. We are conscious of the fact that four empties of 7.62 bore were taken into possession by the Investigating Officer. However, no recovery has been affected from the petitioner after he was taken into custody. Criminal Petition No. 172-P/2021 -: 3 :- Perusal of the crime report clearly reflects that the complainant has not mentioned any overt act towards the opposite party whereas it is clear stance of the petitioner that in-fact the complainant party had shown aggression and initiated the occurrence. In this regard, separate FIR bearing No. 733/2012 under Sections 302/34 PPC has been registered on the same day and time. There is no denial to this fact that the occurrence described in the other crime report was not outcome of the same occurrence, which clearly reflects that the complainant has concealed the real facts while lodging the crime report in which the petitioner is seeking the relief of bail. It is established principle of law that when there are two versions of the occurrence, it squarely invites the provisions of Section 497(2) Cr.P.C. calling for further probe into the occurrence, which is apparent in this case. So far as the argument of learned Law Officer that the petitioner remained absconder for a period of nine years is concerned, we are of the view that mere absconsion cannot be a ground to discard the relief sought for as it is established principle of law that disappearance of a person after the occurrence is but natural if he is involved in a murder case rightly or wrongly. Reliance is placed on Rasool Muhammad Vs. Asal Muhammad (PLJ 1995 SC 477). Another judgment wherein the petitioner remained absconder for considerable time and was involved in many other criminal cases but despite that he was given bail on merits is Moundar and others Vs. The State (PLD 1990 SC 934). Reliance is also placed on Muhammad Tasaweer Vs. Hafiz Zulkarnain (PLD 2009 SC 53). This Court in various judgments has held that mere absconsion is not a proof of guilt, hence, cannot be made sole ground to discard the relief sought for. Even otherwise, it is most cardinal principle of law that each criminal case has its own facts and circumstances and that have to be weighed accordingly. Learned Law Officer has relied upon a judgment of this Court wherein mere registration of counter version was not considered as a ground for grant of bail. However, this principle is not absolute in any manner as in the instant case both the sides have lost a life and are placed on equal proportion regarding culpability and the factum of aggression would be resolved by the learned Trial Court after recording of evidence. As a consequence, we convert this petition Criminal Petition No. 172-P/2021 -: 4 :- into appeal, allow it and set aside the impugned order dated 15.11.2021. The petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs.500,000/- with one surety in the like amount to the satisfaction of learned Trial Court. JUDGE JUDGE JUDGE Islamabad, the 25th of January, 2022 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MUNIB AKHTAR MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CRIMINAL PETITION NO. 1720 OF 2022 (On appeal against the judgment dated 14.11.2022 passed by the Peshawar High Court, Bannu Bench in BA No. 543B/2022) Noor Kamal and Asad Kamal @ Syed Kamal … Petitioners VERSUS The State and another … Respondents For the Petitioners: Mr. Ahmad Ali, ASC Mr. Anis Muhammad Shahzad, AOR For the State: Sardar Ali Raza, Addl. A.G. Mr. Amir Khan, SHO Mr. Waheed Ullah, I.O. For the Complainant: In jail Date of Hearing: 30.03.2023 ORDER SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through the instant petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have assailed the judgment dated 14.11.2022 passed by the learned Single Judge of the Peshawar High Court, Bannu Bench, with a prayer to grant post-arrest bail on statutory ground in case registered vide FIR No. 515 dated 13.05.2021 under Sections 324/34 PPC at Police Station Naurang, Lakki Marwat, in the interest of safe administration of criminal justice. 2. Briefly stated the allegation against the petitioners is that they while armed with firearms launched a murderous attack on the complainant party and made fire shots, which hit the complainant and the witness Mashal Khan on left rib and left knee respectively. After their CRIMINAL PETITION NO. 1720 OF 2022 2 arrest, the petitioners approached the learned Trial Court for grant of post-arrest bail but the learned Trial Court dismissed their bail petition vide order dated 21.06.2021, which was upheld by the learned High Court vide judgment dated 27.08.2021. Thereafter, the petitioners filed fresh bail petitions before the learned Trial Court on statutory ground, but the same were dismissed vide order dated 20.07.2022. This order was upheld by the learned High Court vide impugned judgment dated 14.11.2022. Hence, this petition seeking leave to appeal. 3. At the very outset, it has been argued by learned counsel for the petitioners that the petitioners have been falsely roped in this case against the actual facts and circumstances of the case. Contends that the petitioners are behind the bars for the last more than 22 months and the conclusion of trial is not in sight in near future, therefore, they are entitled for the grant of post-arrest bail on statutory ground. Contends that the delay in conclusion of the trial is not attributable to the petitioners rather the same occasioned due to the prosecution. Contends that the co- accused of the petitioners has been granted post-arrest bail by this Court, therefore, the petitioners also deserve the same treatment to be meted out. Contends that in-fact the complainant party was aggressor and two persons from the petitioners’ side have been done to death by the complainant party and a crime report in this regard was promptly lodged. Contends that the instant crime report is an attempt to pressurize the petitioners’ side to gain ulterior motives. 4. On the other hand, learned Law Officer defended the impugned order by contending that the petitioners have been specifically nominated in the crime report with a specific allegation of attempting to take life of the complainant, therefore, they do no deserve any leniency from this Court. 5. We have heard learned counsel for the parties at some length and have perused the record with their assistance. CRIMINAL PETITION NO. 1720 OF 2022 3 As per the contents of the crime report, the allegation against the petitioners is that they while armed with firearms launched a murderous assault on the complainant party and made fire shots, which hit the complainant and the witness Mashal Khan on left rib and left knee respectively. However, it is stance of the petitioners that in-fact the complainant party was aggressor and committed murder of two persons from petitioners’ side. The petitioner Noor Kamal has also got registered FIR bearing No. 514 dated 13.05.2021 under Sections 302/324/34 PPC at Police Station Naurang, Lakki Marwat against the complainant party. We have noted that in the instant case only a general role has been ascribed to the petitioners and co-accused and no details have been given as to which accused fired at which injured. Admittedly, the petitioners did not repeat the fire, which prima facie shows that they had no intention to kill the victims. The petitioners are behind the bars since 14.05.2021 and despite lapse of more than 22 months, the conclusion of trial is not insight in near future. Learned counsel for the petitioners informed us that the delay is not attributable to the petitioners. On our specific query, learned Law Officer admitted the stance of the petitioners. A plain language of proviso 3 to sub-Section (1) of Section 497 Cr.P.C. clearly reveals that in cases of non-bailable offences, which are not punishable with death where the accused has been detained for a continuous period exceeding one year and it is found that the delay in the trial has not been occasioned due to any act or omission of the accused, the Court shall direct that the accused be released on bail. This Court has time and again held that liberty of a person is a precious right, which cannot be taken away without exceptional foundations. The co-accused of the petitioners namely Usman, who was ascribed the similar role, has been granted post-arrest bail by this Court, therefore, the petitioners are entitled for the concession of post- arrest bail on this score alone. Taking into consideration all the facts and circumstances stated above, we are of the view that the case of the petitioners squarely falls within the ambit of Section 497(2) Cr.P.C. entitling for further inquiry into their guilt. CRIMINAL PETITION NO. 1720 OF 2022 4 6. For what has been discussed above, we convert this petition into appeal, allow it and set aside the impugned judgment. The petitioners are admitted to bail subject to their furnishing bail bonds in the sum of Rs.100,000/- each with one surety each in the like amount to the satisfaction of learned Trial Court. JUDGE JUDGE Islamabad, the 30th of March, 2023 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mushir Alam Mr. Justice Yahya Afridi Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition Nos.172 of 2020 & 140 of 2021 (Against the judgment dated 23.1.2020 passed by the High Court of Sindh, Sukkur Bench in Crl. Revision No.D-28/2013 – and against the judgment dated 01.02.2021 passed by the High Court of Sindh Sukkur Bench in Crl. Jail Appeal No.S-30/2013) Abdul Sattar Mahar (in both cases) …Petitioner(s) Versus The State & another (in both cases) …Respondent(s) For the Petitioner(s): Mr. Aftab Alam Yasir, ASC Syed Rifaqat Hussain Shah, AOR For the State: Mr. Hussain Bux Baloch, Addl. Prosecutor General, Sindh Date of hearing: 30.03.2021. JUDGMENT Qazi Muhammad Amin Ahmed, J.- Dodo son of Muhammad Azeem, indicted by a learned Additional Sessions Judge at Ubaro on the complaint of Abdul Sattar Mahar, no other than his nephew, for committing Qatl-i-Amd of his sister, 19; Rais Kouro (PW-1) survived the assault with a gunshot wound, statedly, on his chest, in the backdrop of a dispute over immovable property; convicted on both counts, he was sentenced to imprisonment for life and 10-years R.I. respectively with a direction to pay compensation as well as fine vide judgment dated 23.04.2013, assailed before the High Court of Sindh. The High Court despite noting “sufficient discrepancies” and while taking into account the period of incarceration underwent by the convict, proceeded to reduce the sentence to the period already undergone and disposed of the appeal vide impugned judgment dated 01.02.2021, vires whereof, are being assailed by the complainant through two separate petitions i.e. Cr.P. No.172 of 2021 and Cr. P. No.140 of 2021. Criminal Petition Nos.172 of 2020 & 140 of 2021 2 2. Learned counsel for the petitioner contends that notwithstanding certain observations apparently favouring the respondent, there was no occasion for the learned Judge-in-Chamber to reduce respondent’s sentence to the period already undergone by him while maintaining his conviction under clause (b) of section 302 of the Pakistan Penal Code, 1860, that mandatorily provides penalty of death or life imprisonment. It is lastly argued that the prosecution had successfully driven home the charge on the strength of natural witnesses, i.e. inmates of the house of occurrence that included an injured as well in the face of motive clearly establishing a breach between the relations in the first degree. Send for the respondent through bailable warrants in the sum of Rs.100,000/- with one surety in the like amount, returnable to the Deputy Registrar (Judicial) of this Court. District Police Officer Ghotki shall ensure execution of warrant within 30 days of receipt of this order. Judge Judge Judge Islamabad, the 30th March, 2021 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE IJAZ UL AHSAN MR, JUSTICE MUNIB AKHTAR MR. JUSTICE SAWED MAZAHAR ALl AKBAR NAQVI CRIMINAL PETITION NO. 1802-1 OF 2017 (On appeal against the judgment dated 3110.2017 passed by the Lahore High Court, Lahore in Murder Reference No. 406/2015 & Criminal Appeal No. 2129/2015) Sajjad Hussain Petitioner VERSUS The State etc Respondents For the Petitioner: Sardar Muhammad Latif Khan Khosa, Sr. ASC For the State: Mirza Muhammad Usman, DPG Date of Hearing: 21.04.2022 JUDGMENT SAYYED MAZAHAR All AKBAR NAQVI. J.- Petitioner Sajjad Hussain along with five co-accused was tried by the learned Additional Sessions Judge, Khushab pursuant to a private complaint under Sections 302/324/148/149/109 PPC in FIR No. 89 dated 21.05.2012 under Sections 302/324/148/149 PPC at Police Station Katha Saghral, District Khushab for committing murder of Noor Hussain and Chulam Abbas, brother and cousin of the complainant and for causing injuries to one Sabir Hussain. The learned Trial Court vide its judgment dated 29.10.2015 convicted the petitioner under Section 302(b) PPC and sentenced him to death on two counts. He was also directed to pay Rs.10,00,000/- as compensation to the legal heirs of each deceased or in default whereof to further undergo SI for six months. The co-accused Rab Nawaz was acquitted of the charge. However, the remaining co-accused were convicted under Section 302(b) PPC and were sentenced to imprisonment for life. In appeal, the learned High Court while acquitting the co-accused and while maintaining the CRIMINAL PETITION NO, 1802-1 OF 2017 2 conviction of the petitioner under Section 302(b) PPC, altered the sentence of death into imprisonment for life on two counts. The amount of compensation and the sentence in default whereof was maintained. Both the sentences were ordered to run concurrently with benefit of Section 382-B Cr.P.C. 2. The prosecution story as narrated by the complainant in the private complaint and as given in the judgment of the learned Trial Court reads as under:- "4. Being dis-satisfied from the Investigation, the complainant filed the instant private complaint Ex.PM on 17.06,2013, wherein he stated that he is resident of Katha Saghral. Ghulam Abbas deceased is his real brother and Noor Hussain deceased is his cousin/Khala Zad. The accused lmdad Hussain and Sajjad Hussain are real brothers inter Se and are real nephew/Bhatija of accused Muhammad All who is also father-in-law of accused lmdad Hussain. The accused Muhammad Saleem and Muhammad Karim are real brothers inter se and are real uncles of accused lmdad Hussain and Sajjad Hussain. The accused Muhammad Munir, Saleem and Karim are uncles and cousins/Phophi zad inter se. Accused Muhammad Naeem is nephew/Shanja of accused Karim and Saleem who is also cousin / Khala Zad of accused Imdad Hussain and Sajjad, in this way all the accused are close relatives inter se. On 225.2012 when the complainant alongwith his brother Khadim Hussain, Ghaus Muhammad 5/0 Mian Muhammad caste Jangla, Muhammad Sarfraz s/o Fateh Sher caste Chadhar resident of Katha Saghral were present on Katha Adda and at about 5.00 p.m his brother Noor Hussain, Ghulam Abbas s/o Allah Ditta cousin/Khala Zad came on car No. 1165/BDIK Model 1982 driven by Rab Nawaz s/o Cost Muhammad caste Ohool resident of Katha Saghral who was driver of the car came on Adda and remained stopped with them for some time. At 5.30 p.m. Noor Hussain and Ghulam Abbas took the vehicle and moved towards their house. When they reached a few paces ahead towards north in front of Hassan Iron Store, suddenly accused lmdad Hussain (since P0), Sajjad Hussain both sons of Wali Muhammad, Muhammad Au s/o Sher Muhammad caste Snadha, Muhammad Naeem s/c Muhammad Munir caste Chadhar r/o Katha Saghral, all armed with Kalashnikovs came from left side of the vehicle. lmdad Hussain (since P0) discharged a burst of his Kalashnikov which shot hit on front side of neck, chest and face of Ghulam Abbas deceased. The second burst was discharged by Sajjad Hussain accused which shots hit Noor Hussain on front of his chest and both the arms. Muhammad Ali and Muhammad Naeem made indiscriminate firing which shots hit on left side door and pillar of vehicle. In the meanwhile accused Muhammad Karim, Muhammad Saleem sons of Malook Khan, Muhammad Munir son of Mureed Hussain caste Chadhar residents of Katha Saghral armed with Kalashnikovs came from right side of the vehicle. They also made straight firing on Noor Hussain and Ghulam Abbas which shots hit on different parts of the CRIMINAL PETITION NO. 1802-L OF 2017 3 deceased persons while passing through the body of the vehicle. Due to the firing of accused, one Sabir Hussain 5/0 Wall Muhammad caste Dhool resident of Katha Saghral had sustained injuries from the hands of the accused. The marks of fire shots are also present on the shutter of adjacent shop to that of "Hassan Iron Store". The driver Rab Nawaz remained safe luckily. Noor Hussain and Ghulam Abbas succumbed to the injuries in the vehicle. 5. Motive behind the occurrence is that about 02 years before, Ghulam Abbas deceased had committed murder of Wali Muhammad, the father of lmdad Hussain accused (since P.0) but subsequently a compromise was effected. The accused lmdad Hussain etc kept the grudge in their heart and due to that grudge, they committed Qatl-e-Amd of Noor Hussain and Ghulam Abbas and they also attempted on the life of Sabir Hussain, who sustained injuries in the occurrence." 3. After completion of investigation, report under Section 173 Cr.P.C. was submitted before the Trial Court. In order to prove its case the prosecution produced as many as 11 witnesses and 8 CWs. In his statement recorded under Section 342 Cr.P.C, the petitioner pleaded his innocence and refuted all the allegations leveled against him. However, he did not make his statement on oath under Section 340(2) Cr.P.0 in disproof of allegations leveled against him. He also did not produce any evidence in his defence. 4. At the very outset, learned counsel for the petitioner argued that there are glaring contradictions and dishonest improvements in the statements of the prosecution witnesses of the ocular account, which have escaped notice of the courts below. Contends that the prosecution witnesses of ocular account are chance/related witnesses and they were also inimical towards the petitioner. Contends that on the same set of evidence, the co-accused of the petitioner, who were ascribed the similar role, have been acquitted of the charge whereas the petitioner has been convicted. Contends that the petitioner was declared innocent by the police in the report under Section 173 Cr.P.0 to the extent of any overt act during occurrence, however, he was ascribed the role of abetment but the same has also not been proved. Contends that no recovery has been affected from the petitioner and there is no incriminating evidence against CRIMINAL PETITION NO. 1802-L OF 2017 4 the petitioner to distinguish his case from that of the acquitted co- accused. Contends that the prosecution has miserably failed to prove its case against the petitioner beyond reasonable doubt, therefore, there was no justification to convict the petitioner. Lastly contends that the impugned judgment is based upon contradictory and discrepant evidence and the same cannot be made basis to sustain conviction as per law and as such the same requires interference to set aside in the interest of justice. S. On the other hand, learned Law Officer has supported the impugned judgment. He contended that the evidence led by the prosecution in the shape of ocular version duly supported by medical evidence is sufficient to sustain the conviction of the petitioner, therefore, he does not deserve any leniency by this Court. 6. We have heard learned counsel for the parties at some length and have perused the evidence available on record. As per the prosecution story, when both the deceased Ghulam Abbas and Noor Hussain were moving towards their house via car No. 1165-BDIK, suddenly petitioner along with co-accused lmdad Hussain, Muhammad Ali, Muhammad Naeem, all armed with Kalashnikovs came from left side of the vehicle. The petitioner fired a burst shot which hit Noor Hussain deceased on front of his chest and both the arms. Co- accused lmdad Hussain, who has reportedly been murdered in Police encounter, also fired a burst with Kalashnikov, which hit on front side of neck, chest and face of Ghulam Abbas deceased. In the meanwhile accused Muhammad Karim, Muhammad Saleem & Muhammad Munir armed with Kalashnikovs came from right side of the vehicle and made straight firing on Noor Hussain and Ghulam Abbas, which shots hit on different parts of the deceased persons while passing through the body of the vehicle. Although the petitioner has been assigned a specific role of firing at the chest and arms of the deceased Noor Hussain, however, the perusal of evidence suggests that the other co-accused namely Muhammad Karim, Muhammad Sateem and Muhammad Munir had also made straight fires on the deceased from right side of the car, which shots CRIMINAL PETITION NO. 1802-L OF 2017 5 hit on different parts of the body of deceased persons. However, the locale of the injuries sustained by the deceased due to the firing made by these three co-accused has not been described. We have noted that according to postmortem report, the deceased Noor Hussain sustained as many as 14 injuries on his body whereas S were on his chest. There is every possibility that the fire shots made by the above-named three co- accused would have also hit the chest of the deceased. However, these co- accused along with all other co-accused have been acquitted of the charge either by the learned Trial Court through a separate trial or by the High Court through the impugned judgment. There is also no denying the fact that the Police in the report under Section 173 Cr.P.C. had not found the petitioner involved in the occurrence and he was only found involved to the extent of communication with co-accused lmdad Hussain via mobile phone, who happens to be real brother of the petitioner. However, neither the mobile phone nor Call Data Record was placed on record. Furthermore, no memo of recovery of mobile phone was ever made. So far as the allegation of abetment against the petitioner is concerned, perusal of Section 107 PPC reveals that three ingredients are essential to establish/charge any person as conspirator i.e. (i) instigation, (ii) engagement with co-accused, and (iii) intentional aid qua the act or omission for the purpose of completion of said abetment. However, all these three ingredients of Section 107 PPC are squarely missing from the record. The weapon of offence i.e. Kalashnikove has also not been recovered from the petitioner. A bare perusal of the evidence available on record shows that there is no incriminating evidence against the petitioner to distinguish his case from that of the co-accused since acquitted. In these circumstances, a shadow of doubt in the prosecution case has been created, benefit of which must be given to the petitioner. It is settled law that a single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefits, not as a matter of grace and concession but as a matter of right. The conviction must be based on unimpeachable, trustworthy and reliable evidence. Any doubt arising in prosecution case is to be resolved in favour of the CRIMINAL PETITION NO. 18021. OF 2017 accused. However, as discussed above, in the present case the prosecution has failed to prove its case beyond any reasonable shadow of doubt. 7. for what has been discussed above, this petition is converted into appeal and allowed and the impugned judgment to the extent of the petitioner is set aside. The petitioner is ordered to be acquitted of the charge He shall be released from jail forthwith unless detained in any other case. The above are the detailed reasons of our short order of even date. Islamabad, the 21st of April, 2022 Approved For Reporting - IT

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mushir Alam Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.1806-L of 2017 (Against the judgment dated 8-11-2017 passed by the Lahore High Court Lahore in Crl. AppealNo.338-J/2014) Shabbir Hussain …Petitioner(s) Versus The State …Respondent(s) For the Petitioner(s): Mr.Mazhar Iqbal Sidhu, ASC For the State: Raja Inam Ameen Minhas, Special Prosecutor, ANF Date of hearing: 09.09.2020. ORDER Qazi Muhammad Amin Ahmed, J.- On a tip off, Shabbir Hussain, petitioner, accompanied by his wife Sakina Bibi and two minor daughters was surprised by a contingent of Anti Narcotic Force Faisalabad on 29.4.2013 in service area of Adda Johal. Upon search, the couple was found in possession of 15.600 kg, separately held by each in the bags carried by them; they claimed trial that resulted into their convictions under section 9(c) of the Control of Narcotic Substances, Act 1997; each was sentenced to imprisonment for life vide judgment dated 18.6.2014. The High Court maintained the convictions, however, substantially reduced the fine imposed by the trial Court; sentence awarded to Sakina Bibi co-accused was also reduced to the period already undergone by her vide impugned judgment dated 8.11.2017, vires whereof are being assailed on the grounds that it is extremely improbable that the petitioner accompanied by his better half and two minor daughters would carry Criminal Petition No.1806-L of 2017 2 such a huge cache of contraband; that despite availability none from amongst the public came forward to attest the recovery, otherwise suspect in view of discrepant statements of the witnesses; forensic report, on samples belatedly dispatched, inherently deficient in protocol details, was the last nail in the coffin, concluded the learned counsel. The learned Law Officer, contrarily, faithfully defended the judgment. 2. Heard. Record perused. 3. Recovered contraband is quite a cache, in the absence of any apparent reason to falsely implicate the petitioner, by itself negates, hypothesis of fake imposition, that too, on a person travelling alongside his family, arrested at a place far away from his abode. Presence of a lady constable who frisked and arrested the co-accused goes a long way to support the prosecution case, suggestive of a methodology not unusual in drug trafficking; purported semblance of a family travelling together in routine appears to have been foiled by receipt of timely information, a scenario seemingly probable in circumstances. Mehmood-ul-Hassan Inspector (PW-3) joined by Mumtaz Bibi Lady Constable (PW-4) in the witness box furnished details of the arrest and recovery. We have gone through their statements to find them in a comfortable and confident unison on all the salient aspects of the raid as well as details collateral therewith. Learned counsel for the petitioner has not been able to point out any substantial or major variation or contradiction in their statements that may possibly justify to exclude their testimony from consideration. On the contrary, it sounds straightforward and confidence inspiring without a slightest tremor. Absence of a witness from the public, despite possible availability is not a new story; it is reminiscent of a long drawn apathy depicting public reluctance to come forward in assistance of law, exasperating legal procedures and lack of witness protection being the prime reasons. Against the above backdrop, evidence of official witnesses is the only available option to combat the menace of drug trafficking with the assistance of functionaries of the State tasked with the responsibility; their evidence, if found confidence inspiring, may implicitly be relied upon without a demur unhesitatingly; without a blemish, they are second to none in status. Similarly, forensic report is sufficiently detailed to conclusively establish narcotic character of the Criminal Petition No.1806-L of 2017 3 contraband. The argument is otherwise not available to the petitioner as he never disputed the nature of substance being attributed to him nor attempted to summon the chemical analyst to vindicate his position. A challenge illusory as well as hyper-technical is beside the mark in the face of “proof beyond doubt” sufficient to prove the charge to the hilt. Petition fails. Leave declined. Judge Judge Islamabad, the 9th September, 2020 Not approved for reporting Azmat/- Criminal Petition No.1806-L of 2017 4

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.18 of 2019 (Against the impugned judgment dated 11.12.2018 passed by the Peshawar High Court Peshawar in Crl. Appeal No.687-P/2018) Matti Ullah …Petitioner(s) Versus The State …Respondent(s) For the Petitioner(s): Malik Nasrum Minallah, ASC Syed Rifaqat Hussain Shah, AOR For the State: Shah Faisal Date of hearing: 01.07.2020. ORDER Qazi Muhammad Amin Ahmed, J.- Indicted by a Special Court (CNS) at Peshawar for possessing cannabis, weighed as 7200 grams, the petitioner was returned a guilty verdict; convicted under section 9(c) of the Control of Narcotic Substances Act, 1997, vide judgment dated 21.7.2018, he was sentenced to 6-years rigorous imprisonment with a direction to pay fine in the sum of Rs.100,000/- or to undergo 6-months SI in default thereof, pre-trial period inclusive, upheld by the High Court vide impugned judgment dated 11.12.2018, vires whereof, are being assailed through the captioned petition. 2. It is argued that the petitioner, a Frontier Constabulary personnel, had been substituted as a scapegoat to let off the real offender and this according to the learned counsel can be safely gathered from discrepant statements of the recovery witnesses, spelling out a story incompatible with the case set up in the crime report. Criminal Petition No.18 of 2019 2 Forensic report has been assailed for being based upon a deficient ‘protocol’ lagging to conclusively confirm the narcotic character of the contraband. Absence of a witness from the public, in a busy neighbourhood, has been cited as a last straw for prosecution’s faialure to drive home the charge beyond doubt. 3. Heard. 4. Prosecution case is primarily structured upon the statements of Muhammad Ayub, SI (PW-2) and Abdul Hannan (PW-3); they are attached with Anti Narcotic Force in the metropolis and had statedly acted on a tip off to confront the petitioner at the designated point; they subdued the petitioner with contraband and a motorbike, both secured vide inventory of even date; cache weighing 7200 grams cannot be viewed as an insignificant quantity. The witnesses comfortably responded the cross-examination and the learned counsel has not been able to point out any flaw or discrepancy in their narratives either on salient features of the case or matters collateral therewith; they are in a unison that inspires confidence and, thus, absence of support from the public does not diminish value of their testimony, fortified by a ring to truth. Reluctance by the public to stand in aid of law is symptomatic of abysmal civic apathy which cannot be allowed to be used as an escape route from justice. Being functionaries of the Republic, both of them are second to none in status; their official acts and declarations are statutorily presumed as intra vires and unless proved contrarily and in the absence of any flaw or discrepancy in their depositions, their testimony cannot be conditioned by additional riders. Forensic report sufficiently details tests applied for determination of narcotic character of the contraband, carried out on the samples transmitted from safe custody and as such is not violative of ‘protocol’ directed by the rules. Story of substitution may not find a buyer as well inasmuch as, admittedly, a Frontier Constabulary official, the petitioner could not be conceivably saddled with a fake imposition without a backlash. Even otherwise, there appears no earthly reason for the officials to hound the petitioner with no axe to grind in a crowded metropolis with a cache substantial enough in volume as well as cost. Conclusions unanimously drawn by the Courts below are squarely founded on proper appraisal of prosecution evidence and on our own independent analysis, we have not been able to find space to Criminal Petition No.18 of 2019 3 entertain any hypothesis other than petitioner’s guilt. Petition fails. Leave declined. Judge Judge Islamabad, the 1st July, 2020 Not approved for reporting Azmat/-

1 CRIMINAL PETITIONs NO.197-K to 204-K, 211-K to 221-K AND 230-K OF 2019 IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE MUSHIR ALAM MR. JUSTICE FAISAL ARAB MR. JUSTICE QAZI MUHAMMAD AMIN AHMED CRIMINAL PETITIONs NO.197-K to 204-K, 211-K to 221-K AND 230-K OF 2019 (Against order dated 10.10.2019 passed by High Court of Sindh, Hyderabad Bench, in Crl.B.A.S-582 to S-587, S-589, S-590, S-537 to S-543, S-591, S-593, S-598, S-599 and S- 577/2019) Gulshan Ali Solangi (in Cr.Ps.197-K to 203-K/19) Ali Asghar Panhwar (in Cr.P.204-K/19) Muhammad Hussain Khokhar and another (in Cr.Ps.211-K to 217-K/19) Allah Bachio Panhwar (in Cr.P.218-K/19) Inam Hussain Abro (in Cr.P.219-K /19) Muzafar Ali Jaiser (in Cr.P.220-K /19) Ghulam Muhammad Kakepoto (in Cr.P.221-K/19) Ghulam Murtaza Butt (in Cr.P.230-K/19) …Petitioner(s) VERSUS The State thr. P.G. Sindh …Respondent(s) For the Petitioner(s): (in Cr.Ps.197-K to 203-K/19) (in Cr.P.204-K/19) (in Cr.Ps.211-K to 221-K/19) (in Cr.P.230-K/19) Mr. Ahmed Ali Ghumro, ASC Mr. Bashir Ahmed Almani, ASC Mr. Abdul Mujeeb Pirzada, Sr. ASC Syed Shafqat Ali Shah Masoomi, ASC along with petitioners. For the State: Ms. Rahat Ahsan, Addl. PG Sindh. (in all cases) Date of Hearing: 05.12.2019 O R D E R QAZI MUHAMMAD AMIN AHMED. Petitioners, though nominated in different crime reports, nonetheless, are identically placed inasmuch as they have been declined judicial protection of anticipatory bail by the High Court of Sindh through various 2 CRIMINAL PETITIONs NO.197-K to 204-K, 211-K to 221-K AND 230-K OF 2019 orders of even date i.e. 10.10.2019. Controversy arises out of a scam detected in Dadu District when thousands of bags alongwith wheat were found missing/displaced from designated places. Inquiries conducted by Anti Corruption Establishment, found the petitioners, having been systematically involved in the misappropriation, resulting into a colossal loss to the public exchequer. 2. Gulshan Ali Solangi, Head Clerk in the Department is arrayed in as many as seven crime reports; alongside him, Muhammad Hussain Khokhar and Mahram Pechuhu, private individuals, being beneficiaries are on board in all the cases. Ali Asghar Panhwar, Ghulam Murtaza Butt, Ghulam Hussain Kakepoto, Muzaffar Ali Jaiser, Inam Hussain Abro, Food Inspectors and Allah Bachio, Food Supervisor have been distinctly accused in the above cases. In this common backdrop, these petitions are being decided through this single order. 3. In the face of findings recorded by the Investigation Officers, on the basis of preliminary inquiry held on the strength of various statements, learned counsel for the petitioners, nonetheless, in a unison and with vehemence, controverted the accusation. It is argued that in order to avoid possible damage to the stock due to poor storage conditions, it was shifted to different places without an axe to grind and as such being blameless, petitioners are being hounded on a trump up charge for purposes far from being bonafide, a position contested faithfully by the learned Law Officer. 4. Heard. Record perused. 3 CRIMINAL PETITIONs NO.197-K to 204-K, 211-K to 221-K AND 230-K OF 2019 5. Except for the two, all the petitioners are in the service of the Food Department, posted in positions at the places, wherefrom huge wheat stock vanished, subsequently spotted at outlets being run and managed by private entrepreneur; explanation offered by the accused being preposterous merits outright rejection. Grant of pre-arrest bail is a remedy rooted into equity; at a cost to hamper the investigation, this judicial protection is extended, solely to save the innocent from the horrors of abuse of process of law with a view to protect his dignity and honour. It cannot be granted in every run of the mill criminal case, particularly to the accused confronting prima facie charges structured upon material/evidence, warranting custody, that too, on the basis of positions/ pleas, verification whereof, is consequent upon recording of evidence. Being in line with the law declared by this Court, view taken by the High Court, does not calls for interference. Petitions fail, leave refused. JUDGE JUDGE ISLAMABAD 5th December, 2019 Azmat/ “Not approved for reporting” JUDGE 4 CRIMINAL PETITIONs NO.197-K to 204-K, 211-K to 221-K AND 230-K OF 2019

1 Crl. P. No. 198 of 2016.docx SUPREME COURT OF PAKISTAN ( Appellate jurisdiction ) PRESENT: Mr. Justice Dost Muhammad Khan Mr. Justice Sardar Tariq Masood CRIMINAL PETITION NO. 198OF 2016 (On appeal against the order dated09.02.2016 passed by Peshawar High Court, Bannu Bench in Cr. M./Q.P. No. 58-B of 2015) Asfandyar & another Petitioners Versus Kamran & another Respondents For the petitioners: Mr. Liaqat Ali Shah, ASC Mr. Mehr Khan Malik, AOR (Absent) Respondents: Not represented Date of hearing: 29.08.2016 ORDER SARDAR TARIQ MASOOD, J. Crl. M.A. No. 540 of 2016 For the reason mentioned in this Crl. M.A., same is allowed and the additional documents are taken on record. CRIMINAL PETITION NO. 198 OF 2016 Petitioner Asfandyar, through this petition, has sought leave to appeal against the judgment dated 09.02.2016 passed by a learned Judge in Chamber of the Peshawar High Court, Bannu Bench, through which Crl. M./Q.P. No. 58-B of 2015, filed by complainant Kamran was allowed and order of the learned Additional Sessions Judge, Takht-e-Nasrati, Karak dated 20.11.2015 was set aside. 2. Brief facts of the case are that the petitioner along with another was involved in case FIR No. 278 registered on 11.09.2014 at Police Station Yaqoob Khan Shaheed, District Karak in respect of offences under Sections 302/324/34 P.P.C. in respect of the murder of Abdul Razzaq and Wali Jan and attempt at the life of complainant and his uncle Muhammad Arif. Learned Additional Sessions Judge (trial Court) during the trial on the request of 2 Crl. P. No. 198 of 2016.docx petitioner/accused, vide order dated 20.11.2015 under Section 539-B Cr.P.C., appointed a Commission to visit the spot in order to ascertain the authenticity of the site plan in respect of a wall shown as close end. Vide the same order, the trial Court also allowed the accused person to place documents on record. 3. The learned counsel argued that actually the Commission was appointed when defence requested the trial Court to proceed against the investigating officer for committing perjury and the Commission was appointed in the said inquiry but conceded that no separate file for such inquiry was prepared in this regard. It was further argued that the documents obtained through modern devise are per se admissible hence Article 79 of the Qanun-e-Shahadat Order, 1984 (hereinafter referred to as “the Order, 1984”) has no concern, for proving the said documents which were prepared from theC.C.T.V. Lastly,it was contended that the order of the learned Additional Sessions Judge was revisable hence petition under Section 561-A Cr.P.C. was not maintainable. 4. We have heard the learned counsel for the petitioners and also perused the record appended with the petition. 5. During cross-examination upon the investigating officer, in order to rebut the site plan, the learned trial Court on a request by the defence side, under Section 539-B Cr.P.C. appointed a Magistrate as a Commission to visit the place of occurrence in order to ascertain the authenticity of the site plan regarding the close end of the market. While doing so, the learned trial judge assumed the jurisdiction of an investigating officer and such order would amount to favour one party and prejudice the case of other party. Such power under Section 539-B Cr. P.C. cannot be a substitute for collection of evidence. Such inspection cannot be interchanged for investigation. Learned counsel for the petitioner although tried to satisfy us that the said Order was in respect of an inquiry regarding alleged perjury committed by the investigating officer but admittedly no separate file has been prepared to that extent nor, in the order dated 20.11.2015,the learned trial Court has mentioned that he had appointed a Commission in an inquiry whereas learned trial Court specifically 3 Crl. P. No. 198 of 2016.docx mentioned that the Magistrate as a Commission was appointed under Section 539-B Cr. P.C.. Section 539-B Cr.P.C. gives power to a Judge or a Magistrate to visit and inspect the place of occurrence or any other place after due notice to the parties, if necessary in the opinion of the trial Court, for properly appreciating the evidence given during the trial. He was also required to record a memorandum without unnecessary delay regarding his observation at such inspection but this power cannot be delegated by the trial judge to any other subordinate or even a subordinate judicial officer. Under Section 539-B Cr.P.C, the trial Judge had no power to appoint another person to visit the place of occurrence as a Commission because the report submitted by a local Commission cannot be equated with the memorandum mentioned in sub- section-I of Section 539-B Cr.P.C.. The trial Judge can inspect the place of occurrence but alone and he cannot delegate his powers under Section 539-B Cr.P.C. and it is exclusive domain of trial Court under said section. Judicial power has its own sanctity and the same cannot be entrusted to anyone. The act of the trial Court is not curable under Section 537 Cr.P.C. as it is not an irregularity rather was an illegality. It is quite astonishing that the learned trial Judge, while appointing a Commission under Section 539-B Cr.P.C, did not go through the said provision and acted mechanically upon the request of defence. The High Court has rightly observed that such an act of the trial Court was not only prejudicial to the other party but also detrimental to the fairness of the procedure provided under the Code, apart from being without jurisdiction. The record reveals that during investigation the petitioner tried to produce the footage of some C.C.T.V. which were produced by the petitioner/accused before the investigating officer. No doubt the trial Court,under Section 164 of the Order, 1984,may allow to produce the said footage of C.C.T.V. but it is incumbent upon the defence to prove the same in accordance with the provisions of the Order, 1984. The defence had ample opportunity to produce in his defence, the concerned person who had prepared the said footage from the C.C.T.V. system in order to prove the same. In that eventuality, the adverse party would be given an opportunity to cross- 4 Crl. P. No. 198 of 2016.docx examine the said witness regarding the genuineness or otherwise of the said document. Any document brought on record could not be treated as proved until the same is proved strictly in accordance with the provisions contained in the Order, 1984. While discussing these aspects of the case, the High Court restricted the admissibility only to the extent of Article 79 of the Order, 1984 whereas there are certain other provisions/articles in the Order, 1984 for proving the documents which are procured through the modern devices and techniques. Mere producing any footage of C.C.T.V. as a piece of evidence in the Court is not sufficient to be relied upon unless and until the same is proved to be genuine. In order to prove the genuiness of such footage it is incumbent upon the defence or prosecution to examine the person who prepared such footage from the C.C.T.V. system. So we modify the impugned judgment to the extent that the accused is at liberty to produce evidence and prove the same strictly in accordance with the provisions of the Order, 1984 and it will not confine only to the Article 79 of the Order, 1984. Admittedly, the order of the learned Additional Sessions Judge was revisable and the learned Judge in Chamber of the Peshawar High Court, Bannu Bench was required to decide the same under his revisional powers. The remedy under Section 561-A Cr. P.C. is not an alternate or substitute for an express remedy as provided under the law in terms of Sections 435 to 439 Cr.P.C..Jurisdiction under Section 561-A Cr.P.C. is neither alternative nor additional in its nature and is to be rarely invoked only to secure the end of justice so as to seek redress of grievance for which no other procedure is available. Although learned Judge in Chamber did not mention any reason as to why he made a departure from the normal course prescribed by law but this omission on the part of learned judge in Chamber is not fatal at this stage because the judgment passed by the High Court is well reasoned and was passed after going through the record of the lower Court. The High Court might have overlooked this aspect of the case, hence, we, in the peculiar circumstances of the case, hold that the impugned judgment, passed by the High Court, be deem to have been passed in revisional jurisdiction. The trial in this case is pending in the trial Court and almost prosecution evidence has 5 Crl. P. No. 198 of 2016.docx already been recorded, hence instead of remanding the case to the High Court, we observe that the impugned judgment is well reasoned and there is no perversity or infirmity warranting interference of this Court. Consequently, this petition is dismissed and leave to appeal is declined. Judge Judge Islamabad, the 29thAugust, 2016 Atif*/ APPROVED FOR REPORTING

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mian Saqib Nisar Mr. Justice Asif Saeed Khan Khosa Criminal Petition No. 203-L of 2014 (Against the order dated 04.02.2014 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No. 158-B of 2014) Muhammad Shakeel …Petitioner versus The State, etc. … Respondents For the petitioner: Rana Shakeel Ahmad Khan, ASC For the State: Ch. Zubair Ahmad Farooq, Additional Prosecutor-General, Punjab For respondent No. 2: Mr. Adnan Shuja Butt, ASC Date of hearing: 20.03.2014 ORDER Asif Saeed Khan Khosa, J.: Cricket and judicial decision making may not have much in common except that there is an umpire in the game of cricket deciding ‘appeals’ and judging various issues arising during the progress of the game and there may be some judges sitting in their courtrooms who may sometimes be tempted to hit the ball over the boundary rope. Likeness of a judge to an umpire in a game of cricket has already been alluded to by none other than Lord Denning in his judgment delivered in the case of Jones v. National Coal Board [(1957) 2 Q.B. 55]. His lordship had observed that “Even in England, however, a Judge is not a mere umpire to answer the question “How’s that?”. His object, above all, is to find out the truth, and to do justice according to law; -------”. Another common factor between the two Criminal Petition No. 203-L of 2014 2 is that both cricket and judicial decision making are played/ practised by gentlemen, and now by noble ladies as well. All of us know that cricket has moulded itself over time and has adapted to the requirements of the changing times but judges, being conservative by nature and tradition, have so far been slow in such transformation or adaptation. Keeping pace with the requirements of the modern times as well as constraints of time concomitant thereto a five-day test match in cricket is giving way to a one-day match and even to a blitz called T20 and although Garry Sobers, Hanif Muhammad and Sunil Gavaskar are still idolized for their marathon efforts and long hauls in batting yet the present day heroes are the likes of Shahid Afridi who, notwithstanding the shots they play or the techniques they employ, are applauded for their obsessive, if not neurotic, hitting and for scoring as many runs as possible within the shortest possible time. As against that the judges are generally still sticking to their old and archaic styles of writing their orders and judgments which is causing a disconnect between the judiciary and the litigant public because the decision making is slow, long and out of pace with the influx of cases asking for decision, if not out of sync with the expectations of majority of the stakeholders. We have found the present case to be a classic example of such a disconnect as despite about one hundred and eighty thousand cases pending and clamouring for decision before the Lahore High Court, Lahore the learned Judge- in-Chamber of the said Court had indulged in the luxury of writing as many as twelve pages for dismissing the petitioner’s application for bail which matter was merely an interim matter pertaining only to regulating custody of the petitioner during his trial. We feel that the matter could have been decided by the learned Judge-in- Chamber through a much shorter order saving the Court’s precious time for attending to other similar matters of urgency. 2. In the background of this Court’s accumulated experience over a long period of time and the wisdom gathered through the same we feel that time has come for breaking away from the attitudes and approaches of the past and for out of the box solutions to situations which apparently have no traditional Criminal Petition No. 203-L of 2014 3 remedies. In short, we feel that time has come for a game changer and the present petition may be utilized as the watershed. It has appeared to us to be safer to start the proposed judicial repositioning with decisions of applications for bail and then to build on the same on the basis of the experience gathered. With this object and motivation in mind we propose that in future, unless the necessities of the case warrant otherwise, the following shorter format for deciding an application for bail may be adopted by all the courts below: (i) Without reproducing the particulars and contents of the FIR in detail an order should state directly and briefly the allegation levelled by the prosecution against the accused-petitioner. The details and particulars of the FIR would already be available in the application for bail itself or the same can be gathered from a copy of the FIR attached with such application. (ii) The details of the arguments addressed by the learned counsel for the parties may not be recorded in the order. It is to be presumed that the court concerned must have heard and attended to all the arguments addressed and the submissions made before it and if one is to look for such arguments the same may be found mentioned in the application for bail. It may be well to remember that an order granting or refusing bail is merely an interim order and the same is not to be equated with a judgment. (iii) The order should state the reasons for granting or refusing bail to the accused-petitioner as briefly and clearly as possible in the following format: (a) ------- (b) ------- (c) ------- (d) ------- It may not be lost sight of that brevity is the soul of wit. (iv) The order should record the terms of bail, if applicable. Adopting the said format we now proceed to decide the present petition. Criminal Petition No. 203-L of 2014 4 3. Through this petition Muhammad Shakeel petitioner has sought leave to appeal against the order dated 04.02.2014 passed by a learned Judge-in-Chamber of the Lahore High Court, Lahore in Criminal Miscellaneous No. 158-B of 2014 whereby post-arrest bail was refused to him in case FIR No. 274 registered at Police Station Hanjarwal, District Lahore on 20.04.2012 in respect of offences under sections 148, 302 and 149, PPC. 4. After hearing the learned counsel for the parties and going through the record we have observed as follows: (a) The allegation leveled against the petitioner in the FIR was that at the stated date, time and place he and his co-accused had resorted to firing at the deceased but the petitioner had not been attributed any specific injury and the allegation leveled against him in the FIR was couched in generalized and collective terms. (b) Admittedly nothing had been recovered from the petitioner’s custody during the investigation so as to confirm the allegation of firing leveled against him. (c) The investigating officer had concluded that the allegation leveled by the complainant party against the petitioner did not stand established during the investigation and as a consequence of such conclusion the petitioner had been opined to be innocent. (d) According to the FIR the complainant and the other eyewitnesses mentioned therein were available at the relevant time just outside the complainant's house but a bare look at the site-plan of the place of occurrence shows that the complainant and the eyewitnesses could not have seen the incident in issue while standing outside the house of the complainant, particularly when it had never been claimed by them in the FIR and in the statements made before the police under section 161, Cr.P.C. that they had followed the deceased and the accused party to the place of occurrence. (e) The investigation of this case has already been finalized and a Challan has been submitted and, thus, physical custody of the petitioner is not required at this stage for the purposes of investigation. Criminal Petition No. 203-L of 2014 5 5. For what has been observed above we have found the case against the petitioner to be a case calling for further inquiry into his guilt within the purview of subsection (2) of section 497, Cr.P.C. This petition is, therefore, converted into an appeal and the same is allowed and consequently the petitioner is admitted to bail subject to furnishing bail bond in the sum of Rs. 1,00,000/- (Rupees one hundred thousand only) with two sureties each in the like amount to the satisfaction of the learned trial court. Judge Judge Lahore 20.03.2014 Approved for reporting. Yasin

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MUNIB AKHTAR MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CRIMINAL PETITION NO. 203 OF 2021 (On appeal against the order dated 12.01.2021 passed by the Peshawar High Court, Bannu Bench in Cr.Misc.BA No. 651-B/2020) Jahanzeb Khan … Petitioner VERSUS Umer Zahid and another … Respondents For the Petitioner: Sh. Muhammad Sulman, ASC Syed Rifaqat Hussain Shah, AOR For the Respondent (1): Mr. Sher Afzal Khan Marwat, ASC Mr. Shahid Qayyum, ASC a/w respondent No. 1 For the State: Mr. Anis Muhammad Shahzad, State Counsel Mr. Yar Muhammad, ASI Date of Hearing: 30.11.2021 ORDER SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through this petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner seeks cancellation of bail granted to the respondent Umer Zahid by the learned Peshawar High Court, Bannu Bench vide order dated 12.01.2021 in case registered vide FIR No. 430 dated 28.06.2020 under Sections 302/324 PPC at Police Station Karak, District Karak in the interest of safe administration of criminal justice. 2. As per the contents of the crime report, on the fateful day and time, the respondent while armed with firearm fired at the complainant and his brother Shahzeb Khan and due to the firing, Criminal Petition No. 203/2021 2 the brother of the complainant got hit and lost his life whereas the complainant remained unhurt. 3. At the very outset, it has been argued by learned counsel for the petitioner that the respondent was the single accused, who was directly charged for the murder of brother of the complainant in the promptly lodged crime report. Contends that there was previous blood feud between the parties, which led to the commission of the crime. Contends that the occurrence took place in broad daylight and the parties were known to each other, therefore, there is no chance of mis-identification. Contends that the Call Data Record (CDR) of the respondent also shows that he was present at the scene of occurrence at the relevant time. Contends that the respondent remained absconder for a period of six months, which shows his involvement in the crime. Contends that the offence with which the respondent is charged with falls within the prohibitory clause of Section 497 Cr.P.C. and the normal penalty provided under the statute is death. Lastly contends that the learned High Court did not take into consideration these aspects of the matter and has granted bail to the respondent on surmises and conjectures, therefore, the grant of bail on assumptions may be cancelled. 4. On the other hand, learned counsel for the respondent has defended the impugned order whereby post-arrest bail was granted to the respondent. He contended that the considerations for grant of bail and cancellation whereof are entirely on different footings and once bail has been granted to an accused on the basis of tentative assessment of evidence available on record then for its cancellation exceptional strong reasons are required. He contended that keeping in view the nature and locale of the injury on the body of the deceased, the same could not have been sustained because the deceased was in a bunker at the time of occurrence. Contends that the complainant was not present at the time of occurrence and to cover this lapse, he got tampered the postmortem report and changed the time of postmortem examination. 5. We have heard learned counsel for the parties at some length and have perused the available record. Criminal Petition No. 203/2021 3 There is no denial to this fact that the respondent is nominated in the crime report, which is promptly lodged against him wherein a specific accusation of causing firearm injury to the brother of the complainant which resulted into his death. Admittedly, the occurrence has taken place on the rooftop of the house of the complainant and the matter was reported to the Police after lapse of 1 hour and 45 minutes whereas the inter se distance between the place of occurrence and the Police Station was 18-19 kilometers. This aspect lends support to the fact that the matter was reported to the Police without any inordinate delay. Previous enmity between the parties is not denied. The instant occurrence has taken place in broad daylight whereas the parties are known to each other, therefore, there is no chance of any mis-identification, which further gives strength to the prosecution case. The locale of injury ascribed to the respondent is fully supported by medical evidence. We have noticed that the reasoning advanced by the learned High Court while granting bail to the respondent is artificial in nature, which does not imprint any second thought in the mind of a prudent man that the occurrence has taken place in another manner not disclosed while lodging the crime report. The argument of the learned counsel for the respondent that the considerations for the grant of bail and cancellation whereof are entirely on different footings has no second thought. However, we are under obligation to attend to the facts and circumstances of the lis, which is brought before us and to evaluate the same in the manner so that no injustice is done to either of the party. In the instant case, the learned High Court has not given any justiciable reasoning to bring the case of the respondent within the ambit of Section 497(2) Cr.P.C calling for further probe into his guilt rather based its order upon assessment of the facts, which does not have any nexus with the guidelines enunciated by the superior courts from time to time with reference to grant of bail. In our opinion, in the instant case the learned High Court while granting bail to the respondent has erred in law and fact and has passed an order which is based upon conjectures and surmises, therefore, the same is not sustainable in the eyes of law. As a consequence, we convert this petition into appeal, allow it, set aside the impugned order and cancel the bail granted to the respondent by the learned Criminal Petition No. 203/2021 4 High Court vide impugned order dated 12.01.2021. The above are the detailed reasons of our short order of even date. JUDGE JUDGE Islamabad, the 30th of November, 2021 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Sardar Tariq Masood Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Amin-ud-Din Khan (,q4)(D 5) CRIMINAL PETITION NO.209 OF 2018 AND CRL. MISC. APPLICATION No.392 OF 2018 (On appeal against the judgment dated 07.12.2017 by the Is]ariiabad High Court, Islarnalpul, in Cr1. Appeal No. 152/2017) Model Customs Collccwrate, Islamabad Versus Aamir Mumtaz Qureshi Petitioner Respondent For the petitioner For respondent Date of hearing Mrs. Misbah Gulnar Shari[, ASO Sycd Rifaqat Hussain Shah, AOR Qazi Shehryar lqbal, ASC a/w respondent in person. I R.05.2022 JUDGMENT SAROAR TAmQJ!SOOD, J.- CH. Misc. Application No.392/2018 For reasons set out in the instant application for condonation of delay, the same is allowed and the delay in filing of the pelition is condoned because the trial court judgment and the impugned judgment are patently illegal and against the record. 2. The petitioner department has impugned the judgment dated 0712.2017 of the Islamabad high Court whereby it uphold the order dated 28.04.2017 of ticcRlittal of respondent, passed by the Special Court (Customs, Taxation & Anti-Smuggling), Rawalpindi/Islamahad Capital Territory under section 265-K Cr.P.C., in case FIR No.49/2016, zegisteicd on 29.07.2016 at Police Station I&P Branch, MCC Islamabad under sections 2(s), 156(1), 8, 70 and 157 of the Customs Act 1969, read with section 8 of the Foreign Exchange Pegulation Am 1947 (1V1 ACT). Cr!. l 20912018 2 3. We have heard the learned counsel for the petitioner as well as the learned counsel for the respondent and perused the available record alongwith the impugned judgment with their assistance. 4. Admittedly, the respondent Aamir Mumtaz Qureshi was apprehended at Benazir Bhutto International Airport, Islamabad when he was taking away heavy currency of about 400,000 (four hundred thousand) Saudi Riyals to Saudi Arabia and the said foreign currency was recovered from his exclusive possession which he was smuggling abroad and this fact is not denied but he was acquitted by the trial court under section 265-K, Cr.P.C. and appeal filed against his acquittal was dismissed by the High Court through the impugned judgment, hence this petition for leave to appeal. On 24.02.2018 notice was issued to the respondent. 5. As respondent was acquitted by the trial court under section 265-K Cr.P.C. hence section 265-K Cr.P.C. and allies section 249-A Cr.P.C. are reproduced as below: - 249-A. Power of Magistrate to acquit accused at any stage: Nothing in this Chapter shall be deemed to prevent a Magistrate front acquitting an accused at any stage of the case if after hearing the prosecutor and the accused and for reasons to he recorded, he considers that the charqJ groundless or i/ia! (here is no nrobabilitu of the accused being convicted c] any offence. 265-K. Power of Court to acquit accused at any stage: Nothing in this Chapter shall be deemed to prevent a Court from acquitting an accused at any stage of the case, if after nearing the prosecutor and the accused and for reasons to be recorded, it considers that there is no probabilif of the accused being convicted of any offence." Under section 249-A, the Magistrate is empowered to acquit any accused on two grounds i.e. charge is groundless and there is no probability of conviction, whereas under section 265-K Cr.P.C., the court during the trial is empowered to acquit an accused, when there is no probability of conviction indicating that when there is no evidence on the record and even there is no remote probability of conviction and if thcre is remote probability of conviction then the court is required to record the evidence and then decide the case on evidence bought on record during the trial. From the above sections, it is also clear that application under sections 249-A and 265-K Cr.P.C. can be filed or taken up for adjudication at any stage of proceeding of trial i.e. cvcrI before recording of prosecution evidence or during recording of evidence or when recording of evidence is over. CrL,°.20912018 3 Although there is no bar for an accused to file application under the said sections at any stage of proceeding of the trial, yet the fact and circumstance, the prosecution case will have to be kept in mind and if there is slight probability of conviction then off course, instead of deciding the said application should record the evidence and allowed the case to decide on its merit after appraising the evidence available on recorded. 6. Although learned counsel for respondent contended that respondent himself delivered the said currency to the authorities while travelling to Saudi Arabia but this fact has not been established by the learned counsel for the petitioner through documents except the statement of the respondent himself but this fact further confirms that he was apprehended at the Airport and huge currency, which he was trying to smuggle to the Saudi Arabia, was recovered from him. The argument of the learned counsel that respondent had filed application before the State Bank of Pakistan for permission to take away the currency to Saudi Arabia, has no force because mere filing of an application for permission by itself is not sufficient to allow him to smuggle the currency out side the country, until the permission was granted and in this case admittedly, no permission was ever granted by the State Bank of Pakistan. At this juncture learned counsel for the respondent took a summersault and contended that the respondent was not aware of the fact that foreign currency amounting to more than US$ 10,000 (US dollars ten thousand) cannot be taken awa y, from the country. This assertion is also not getting support form any corner, because on one hand the respondent claimed that he had filed all application for permission to take the huge foreign currency out of the country and on the other hand he was not aware of the fact that he could not take huge foreign currency outside the country. 7. The argument of the learned counsel for the respondent that he was a Hajj Tour Operator and has not committed any offence of taking away! smuggling foreign currency from the country, has no force because being a HaJ Tour Operator he has no license to smuggle the foreign currency outside the country. There was sufficient material available on record connecting the respondent with the commission of 1.1he alleged crime and it was incumbent upon Cr1. P.209/2018 4 the trial Court to record the evidence but instead of recording the evidence to prove the guilt or otherwise of the respondent, the trial Court in a slipshod manner, acquitted him under section 265-K Cr.P.C.. The trial Court acquitted the respondent for the reason that there is no probability of conviction, whereas, from the material available on record, it is quite clear that he was apprehended at the airport while leaving for Saudi Arabia with the above said huge foreign currency. 8. There is no cavil to the proposition that by enacting sections 249-A and 265-K, CrI'C., the Legislature provided power to acquit an accused at any stage of the case if, after hearing the prosecutor and the accused and for reasons to be recorded, it considers that the charge is groundless or that there is no probability of the accused being convicted of any offence. But acquittal, under the said sections, could be made only if there was no probability of conviction of the accused. However, each case must be judged on its own special facts and circumstances and the reasons are to be recorded in support of conclusion that charge is groundless or that there is no probability of accused being convicted. If there is remote probability of conviction then of course courts are not empowered to invoke the said provisions i.e. 249-A and 265-K Cr.P.C.. Reliance in this regard may be placed on the case of The State through Advocate-General, Sindh High Court of Karachi a Rafa Abdul Rehman (2005 SCMR 1544) wherein it was held that though there is no bar for an accused person to file application under section 249-A, Cr.P.C. at any stage of the proceedings of the case yet the facts and circumstances of the prosecution case will have to be kept in mind and considered in deciding the viability or feasibility of filing an application at any particular stage. The special or peculiar facts and circumstances of a prosecution case may not warrant filing of an application at a stage. This Court in the case oF Bashir Ahmad V. Zafar ul Islam (PLD 2004 SC 298) did not approve decision of criminal cases on an application under section 249-A, Cr.P.C. or such allied or similar provisions of law, namely, section 265-K or section 561-A Cr.P.C. and observed that usually a criminal case should be allowed to be disposed of on merits after recording of the prosecution evidence, atement of the accused under section 342, Cr.P.C., recording of statement of accused under section 340(2), Cr.P.C. if so desired by Cr1. P.209/2018 5 the accused persons and hearing the arguments of the counsel of the parties and that the provisions of section 249-A, section 265-K and section 561-A of the Cr,P.0 should not normally be pressed into action for decision of fate of a criminal case especially when apparently there is probability of conviction after recording evidence. In the present case, trial court disrupted the normal course of law against the mandate of supra judgment i.e. Bashir Ahmad Vs. Zafar- ui-Islam and others (PLD 2004 SC 298). In the case of The State through Collector Customs and Excise, Quetta v. Azam Malik and others (PLO 2005 SC 686) this Court held as under:- 22. This brings us to the third question i.e. whether the prosecution had sufficient material/evidence to warrant the prosecution of the respondents or there was no probability of accused being convicted of any offence. We have gone through the FIR registered against the respondents and the absconding co-accused as also the evidence led before the Court. There were serious allegations that there was tampering/overwriting/ culling of the relevant register of bills of entry, the matter was inquired into at the departmental level and (he allegations were found to be correct. Ex fade there was documentary, oral and circumstantial evidence to prove the charges. In the face of this material the Thai Court could not have invoked section 265-K, Cr.P.C. and acquit the respondents. Reliance may also be placed on the cases of Muhammad Sharif v. the State (PLO 1999 SC 1063), Ghulam Faroog Tarar a Rizwan Ahmad and others (2008 SCMR 383), 9. Further, in appellate or revisional proceedings, the same sanctity cannot be accorded to acquittals at intermediary stages such as under, sections 249-A or 265-K Cr.P.C., as available for those recorded and based on full-fledged trial after recording of evidence. In appeal or revision proceedings, the order of acquittal of the accused under section 249-A or section 265-K of the Ct-P.C. would not have the same sanctity as orders of acquittal on merits. Consequently, the principles which are to he observed and applied in setting aside concurrent findings of acquittal or the principle relating to the presumption of double innocence when an accused is acquitted after a full-fledged inquiry and trial, would not he applicable to the acquittals under section 249-A, Cr.P.C. or section 265-K, Cr.P.C.. 10. In the instant ease, if the allegations levelled in the FIR supported by the preliminary evidence are admitted to be true, it could not he said at that stage by the trial Court that there was no probability of conviction of the respondent-accused. In order to U CrLP.211912018 6 ascertain the genuineness of the allegations, the trial Court ought to have allowed the prosecution to lead evidence. In the circumstances, we are of the view that the learned trial Court acted in haste in passing the order of acquittal which is, therefore, notsustainable. The learned High Court was also not justified in upholding the order of the trial Court when it is settled that without permission from the State Bank of Pakistan, foreign currency more than ten thousand dollars is not allowed to take away from this country. 11. For the foregoing, this petition is converted into an appeal and allowed. The orders of the trial Court and High Court are set aside and the matter is remanded to the trial Court to record the evidence and decide the case upon the evidence produce before it, without being influenced by the observations mentioned above because the material collected by the prosecution, during trial, will be subject to cross-examination to unearth the truth. The parties, by way of short order of even number passed on 1805.2022, were directed to appear before the trial Court on 6.6.2022, which order reads as under: 'or reasons to be recorded later on, this petition is converted into an appeal and allowed, The orders of the trial Court and High Court are set aside and the matter is remanded to the trial Court to record the evidence and decide the case upon the evidence produced before it. The parties are directed to appear before the trial Cowl on 06.06.2022.' Islamabad 13.07.2022 * s.t Approved for reporting.

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Gulzar Ahmed, HCJ Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.21-P of 2020 Against the judgment dated 28.02.2020 passed by the Peshawar High Court Peshawar in Cr.MBA. Bi,57-P/2020) Zahoor Khan …Petitioner(s) Versus Akhter Muhammad & another …Respondent(s) For the Petitioner(s): Mr. Akhter Ali Khan, ASC For the Complainant: Mr. Anis Muhammad Shahzad, ASC For the State: Miss Aisha Tasneem, State Counsel with Iqbal Mashwair, I.O/S.I. Date of hearing: 21.05.2020. ORDER Qazi Muhammad Amin Ahmed, J.- Declined downstairs throughout, Zahoor Khan, petitioner herein, seeks admission to bail; alongside co-accused, he is alleged to have fatally targeted Yaheer Shah on 25.10.2014 at 18:00 hours within the remit of Police Station Katling District Mardan in the backdrop of a motive that hovered over a piece of land; away from law, he was arrested after a period exceeding half a decade. Autopsy report confirmed receipt of as many as six entry wounds. 2. Heard. Record perused. 3. Argument regarding conflict between ocular account and medical evidence, seemingly otherwise beside the mark, cannot be attended within the barriers of tentative assessment, particularly in the face of reflections of inordinate absence from law. Ocular account, Criminal Petition No.21-P of 2020 2 accompanied by medical evidence as well as investigative conclusions, constitute “reasonable grounds” within the contemplation of Section 497 of the Code of Criminal Procedure 1898, standing in impediment to petitioner’s release in the absence of any consideration calling for further probe. Impugned views being well within the bounds of law need no interference. Petition fails. Leave declined. Chief Justice Judge Islamabad, the 21st May, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Iftikhar Muhammad Chaudhry, CJ Mr. Justice Ijaz Ahmed Chaudhry Mr. Justice Gulzar Ahmed Criminal Petition No.213 of 2013 [On appeal against the order dated 17.05.2013, passed by the Lahore High Court, Lahore, in Crl.Misc.No.701-H/2013] Mst. Rasoolan Petitioner(s) VERSUS SHO, Head Marala, Sialkot etc Respondent(s) Petitioner : In person For Respondents No.1,3 & 5 : Mr. Jawwad Hassan, Addl.A.G. Mr. Muhammad Gohar Nafees, DPO, Sialkot. Mr. Muhammad Shahbaz, DSP (L) Mr. Safdar Hussain, Inspector/SHO, P.S. Head Marala, Sialkot. Mr. Muhamad Zubair, SI, PS Head Marala. Ms. Nazia, Lady Constable with the detenues Muhammad Ashraf, Muhammad Akram, Aman Ullah, Asma Bibi, Uzma Rani, Rafia Rani, Azhra Rani and Sufian. For Respondents No.2 & 4 : NR Date of Hearing : 03.07.2013 ORDER IFTIKHAR MUHAMMAD CHAUDHRY, CJ.—In response to our order dated 27.06.2013, Mr. Gohar Nafees, DPO, Sialkot, appeared and produced the alleged abductees namely Aman Ullah, Muhammad Akram, Rafia Rani and Azhra Rani (minors) aged about 4-5 years. According to him, they were available on the brick Killen of Naveed Elahi Gujjar at Kotli Sattian, Sialkot, Crl.P.No.213 of 2013 - 2 - where they were living of their free will. However, when we inquired from Aman Ullah, the alleged abductee, as to how he has reached at the brick killen of Naveed Elahi Gujjar, he explained that he had received an advance ( ) of Rs.200,000/- from one Muhammad Asghar the owner of brick killen at Head Marala, Sialkot, who sent him to Gujranwala on the brick killen of Rana Mehmood ul Hassan and he paid an amount of Rs.400,000/- to Muhamad Asghar. Subsequent thereto Rana Mehmood ul Hassan sent him, his brother and two minors again to Sialkot on the brick killen of Naveed Elahi Gujjar, who had paid an amount of Rs.400,000/- to Rana Mehmood ul Hassan. As far as the minors are concerned, according to him they were also living with him on the same brick killen. Both the minors have been produced in the Court, they seem to be children of 4-5 years old. Therefore, we inquired from a lady namely Mst.Asma, who has also been produced in the Court, she stated that she was also living on the same brick killen but after some time she changed her statement and deposed that she along with her son namely Sufian aged about 5-6 years and a suckling daughter namely Uzma as well as Muhammad Ashraf, who is brother of Aman Ullah, were recovered from Minar-e-Pakistan. In the report which has been submitted by the DPO, there are two contradictions, one of them has been mentioned herein above relating to the confinement and abduction against payment of paishgi by Aman Ullah and others Crl.P.No.213 of 2013 - 3 - and second is in respect of the recovery of Muhammad Ashraf and Mst. Asma from the jurisdiction of Police Station Lorry Adda, Lahore, where according to the report of the DPO, they were found near gate No.1 of Minar-e-Pakistan, Lahore. 2. Prima-facie, false statement has been placed on record under the signatures of the DPO, as the contents of the report are not supported by the facts noted herein above including the one that how it was possible for him to effect the recovery from gate No.1, Minar-e-Pakistan, Lahore, when he himself is saying that they are resident of village chharar, Ghazi Road, Lahore Cantt. Such statement cannot be accepted which has been filed without any basis and apparently is far away from the truth which is now coming on record. On our query, he has placed on record extract of report No.36, Police Station Lorry Adda, Lahore, where Safdar Hussain, Inspector/SHO Police Station Head Marala, Sialkot visited the said Police Station for the purpose of effecting recovery of Mst.Asma and others. The relationships in this report have also been written incorrectly. We inquired from Muhammad Akram, who was stated to be with them that how he is happened to be at gate No.1 of Minar-e-Pakistan, he stated that he is resident of village chharar from where he came along with rickshaw driver and Mst. Asma also accompanied them along with her suckling child Uzma and Sufian aged about 4/5 years. Similarly, he has also placed on record another report compiled Crl.P.No.213 of 2013 - 4 - by Safdar Hussain, Inspector/SHO, for effecting recovery of Muhammad Ashraf, Mst. Asma, Sufian and Uzma from gate No.1 of Minar-e-Pakistan, Lahore. The same may be kept on record. Apparently contradictory and false statement has been filed without conducting thorough inquiry by the DPO, under his signatures. 3. In such view of the matter, we direct the Inspector General of Police, Punjab, to take cognizance of this matter and submit a comprehensive report by appearing in person on 8th July, 2013. A copy of this order along with the reports and annexures which have been placed on record be sent to him. 4. The DPO is also directed to place on record the report of departure of Safdar Hussain from his Police Station to Police Station Lorry Adda, Lahore, on 29.06.2013. 5. As the detenues mentioned hereinabove have been recovered, therefore, to their extent no further proceedings are called for. 6. Adjourned to 08.07.2013. Chief Justice Islamabad Judge 03.07.2013 *Hashmi* Judge Crl.P.No.213 of 2013 - 5 -

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mushir Alam Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.224 of 2017 (against impugned judgment dated 11.1.2017 passed by the Lahore High Court Rawalpindi Bench in Crl. Appeal No.63 of 2016). Rifat Hussain …Petitioner(s) VERSUS The State …Respondent(s) For the Petitioner(s) : Mr. Muhammad Munir Paracha, ASC For the State : Mr. Muhammad Jaffar D.P.G. Punjab. Date of Hearing : 12.09.2019. O R D E R Qazi Muhammad Amin Ahmed, J.- Indicted for homicide, Riffat Hussain, petitioner herein, was returned a guilty verdict by the trial Court; convicted under Clause (b) of Section 302 of the Pakistan Penal Code, 1860 he was sentenced to imprisonment for life with a direction to pay compensation alongside benefit of section 382-B of the Code of Criminal Procedure 1898; his appeal met with no better fate. 2. Habib is deceased of the case; he was allegedly done to death on the fateful day at 6:30 p.m. with multiple shots, fired by the petitioner as well as Ghulam Abbas co-accused, since killed in a police encounter, in the backdrop of a motive relating to the murder of petitioner’s brother at his hands, way back in the year 1997. Incident was reported at 3:00 a.m. after mid night whereas autopsy was conducted at 9:00 a.m. Delay in recourse to law as well as autopsy is pressed into service to argue that the witnesses were staged managed as the Criminal Petition No.224 of 2017 2 incident went un-witnessed; to substantiate further, it is next argued that it was for this reason that the dead body was shifted from the alleged venue wherefrom no casing was recovered despite allegation of multiple fire shots as confirmed by the autopsy report, rendering recovery of weapon as inconsequential as considered by the learned High Court itself. Elimination of co-accused in a police ‘encounter’ has been pointed out to suggest that all was not well with the prosecution; non- appearance of the Investigating Officer without any valid cause, according to the learned counsel, cause serious prejudice to the petitioner in his quest to vindicate his position, circumstances that escaped notice downstairs. It would be expedient to re- appraise prosecution evidence with a view to ensure safe administration of criminal justice, leave is granted. JUDGE Islamabad, the 12th of September, 2019 Azmat/* JUDGE

                                                                                                                                                                1 Crl.P.L.A. No. 230/2016                       (SNGPL)         (FIA)                                                                                                                                                                                                                                                                      2 Crl.P.L.A. No. 230/2016              (SNGPL)         (FIA)                                                                                                                                                                                            3 Crl.P.L.A. No. 230/2016

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Maqbool Baqar Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.231-K of 2019 (Against order dated 21.10.2019 passed by High Court of Sindh Circuit Court Hyderabad in Cr. Bail Application. No.S- 988 of 2019) Abdul Aziz Memon …Petitioner(s) Versus The State …Respondent(s) For the Petitioner(s): Mr. Bashir A. Almani, ASC For the State: Mr. Hussain Bux, Additional Prosecutor General Sindh Date of hearing: 26.12.2019 ORDER Qazi Muhammad Amin Ahmed, J.- Apprehending arrest, Abdul Aziz Memon, petitioner herein, seeks bail in anticipation thereto; he is accused in Crime No.109, registered with Police Station Matyari, on the complaint of Hakim Ali, allegedly duped for appointment as a Naib Qasid in the Education Department, in lieu of payment of Rs.500,000. An appointment letter, received by the complainant, turned out a fake instrument after two years service without pay. Before the Courts below, the petitioner pleaded innocence, citing a dispute over a transaction involving wheat crop for a consideration of Rs.200,000 paid through different bank cheques issued in complainant’s favour, followed by a default; the same story is reiterated, nonetheless, in the absence of any proof or investigative support. 2. Heard. Record perused. 3. Complainant’s futile service as a Naib Qasid at a school for a period of two years, abruptly terminated when the appointment letter Cr.P. No. 231-k OF 2019 2 provided by the petitioner, upon verification, was found as a forged instrument; two years of service and a fake appointment letter are circumstances, resting upon incriminatory statements, singularly pointed upon petitioner’s culpability that he cannot ward off by clamouring a bald plea of mala fide, structured upon denial and a parallel story. Grant of pre-arrest bail is an extraordinary remedy, rooted into equity, to protect the honour and freedom of the innocent in criminal cases actuated by abuse of process of law for oblique motives and purposes; this protection cannot be extended in every run of the mill criminal case without grievously hindering the investigative process. View taken by the High Court, being well within the remit of law, does not call for interference. Petition fails. Leave refused. Judge Judge Karachi, the 26th December, 2019 Not approved for reporting Azmat*

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE SAJJAD ALI SHAH MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CRIMINAL PETITION NO.231 OF 2020 (Against the order of the Peshawar High Court, Peshawar dated 14.02.2020 passed in Cr. MBCA No.45-M/2019 and Cr. MBCA No.46-M/2019) Sami Ullah and another … Petitioners Versus Laiq Zada and another … Respondents For the Petitioner For the Complainant : Mr. Abdul Latif Afridi, ASC Barrister Sarwar, Advocate Mr. Muhammad Saeed Khan ASC Syed Rafaqat Hussain Shah AOR For the State : Zia Ullah ASI Date of Hearing : 08.05.2020 ORDER SAYYED MAZAHAR ALI AKBAR NAQVI, J:- Petitioners have sought leave to appeal under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 against the order impugned passed by learned Peshawar High Court, Mingora Bench (Dar-ul-Qabza), Swat dated 14.02.2020 in Cr.MBCA No.45/ 46-M/2019 with the prayer to set-aside the order impugned in the interest of safe administration of criminal justice. 2. The petitioners were booked in case bearing FIR No.62/2019 dated 08.06.2019 under Section 316/452/337-A(ii), 337 F(iv)/34 PPC registered with Police Station Sheringal, District Dir Upper. Criminal Petition No. 231 of 2020. -:2:- As per allegation contained in the crime report, it is alleged that the complainant was present alongwith other women- folk when the petitioners duly armed with sticks and stones entered in the house of petitioner and caused injuries to Mst. Shabina Bibi, Mst. Prona Bibi, Enam and Khan Zada which landed on the different parts of the injured PWs, however Khan Zada succumbed to the injuries at a belated stage. The motive behind the occurrence was dispute over the agricultural land. The petitioners were taken into custody in pursuance of the aforesaid crime report. The petitioners applied for their post arrest bail which was allowed by learned Addl: Sessions Judge-II, Dir Upper vide order dated 01.07.2019. The complainant being aggrieved by the order of the learned Addl: Sessions Judge-II, filed two petitions (Cr.MBCA No.45-M/Cr. MBCA No.46-M/2019) for cancellation of bail, both these petitions were decided vide consolidated order dated 14.02.2020. Hence, the instant petition. 3. At the very outset, it has been argued by the learned counsel for the petitioners that in fact, the learned High Court has grossly erred in recalling the order of learned trial court and the same has been passed without any legal justification. Contends that the petitioners were enjoying the concession of bail since seven months, however, this aspect was totally ignored while passing the order. Further contends that it is established principle of law that the considerations for grant of bail and cancellation whereof are entirely on different footings. It has been argued that considerations laid down to entertain such like petitions enunciated by the superior courts escaped notice by the learned High Court while passing the order. It is vehemently conceded that Criminal Petition No. 231 of 2020. -:3:- no doubt learned High Court can adjudicate and recall the order if the same is prima facie illegal, perverse, fanciful and passed while ignoring the actual record, hence the order impugned is altogether in defiance of principles laid down to pass such orders. It is further argued that there is nothing on the record which suggests that the order passed by learned trial court was falling in such category. Lastly contended that injury caused to the deceased on scrotum was made basis for recalling the order, although the same is not spelled out either from the contents of crime report or is mentioned in MLR, hence, the order of learned High Court is untenable, passed beyond the record. 4. On the other hand, learned counsel for the complainant has stated that injury to the deceased was on vital part of the body. While elaborating his arguments, he argued that whole body sustained injures by the hands of the petitioners which means that even the injury if not mentioned specifically in the medical report it can be assumed “cause of death” if surfaced subsequently hence could be taken into consideration, while basing findings of the court on it even in isolation. 5. We have heard the learned counsel for the parties and gone through the record with their able assistance. The crux of the grievance invoked under section 497(5) Cr.P.C. by the complainant before learned High Court Peshawar was that the order passed by the learned trial court was in defiance of the material available on the record, hence, the same was not sustainable in the eye of law. Bare perusal of provision of section 497(5) Cr.P.C. it do not demonstrate any specific ground to press Criminal Petition No. 231 of 2020. -:4:- into the pretense of said provision of law, however, superior courts of the country from time to time have enunciated certain principles governing cancellation of bail and those are in field with unanimous concurrence since considerable time. Those are enumerated as under:- i) If the bail granting order is patently illegal, erroneous, factually incorrect and has resulted into miscarriage of justice. ii) That the accused has misused the concession of bail in any manner. iii) That accused has tried to hamper prosecution evidence by persuading/pressurizing prosecution witnesses. iv) That there is likelihood of absconsion of the accused beyond the jurisdiction of court. v) That the accused has attempted to interfere with the smooth course of investigation. vi) That accused misused his liberty while indulging into similar offence. vii) That some fresh facts and material has been collected during the course of investigation which tends to establish guilt of the accused. 6. Ordinarily the superior courts are reluctant to interfere into the order extending concession of bail; rather they have shown reluctance to intervene in such like matters. The rationale behind is that once concession of bail is granted by a court of competent jurisdiction then very strong and exceptional grounds would be required to hamper with the concession extended to a person who is otherwise clothed with free life, any contrary action of the court would be synonymous to curtailing the liberty of such person, which otherwise is a precious right guaranteed under the Criminal Petition No. 231 of 2020. -:5:- Constitution of the country. Our judicial system has evolved beside others the concept of “benefit of reasonable doubt” for the sake of safe administration of criminal justice which cannot only be extended at the time of adjudication before the trial court or court of appeal rather if it is satisfying all legal contours, then it can be extended even at bail stage which is a sin-qua-non of a judicial pronouncement, hence, any unjustified action by the court of law intruding into the affairs would certainly frustrate the free life of an accused person after availing the concession of bail. It is not beyond the legitimate expectations that in our society mere levelling of accusation basing upon trumped-up charges is not something beyond imagination. Therefore, false implication/exploitation which has become epidemic in our society has to be safeguarded by the majesty of the courts. Unfortunately, our judicial system does not effectively provide appropriate speedy remedy for the rescue of innocent person rather it seldom helps those who are victim of such wrong doing rightly or wrongly, hence it is ensuing serious consequences in the fabric of society. This Court is fully conscious of this aspect. It is now established that every conviction/incarceration suffered by a person involved in a criminal case due to any possible reason can repair the wrong caused by a mistaken involvement but it cannot compensate him for the period he suffered by any means which further demonstrate undue frustration in the society at large. This concern of the society further casts duty upon the courts of law to adhere the dictum of reasonable doubt whenever it is surfaced to resolve it in favour of an entity which deserves it judiciously. Criminal Petition No. 231 of 2020. -:6:- 7. We have observed that the learned High Court has exercised the jurisdiction on the basis of material which is not substantiated from the record; hence, the order passed by the learned High Court seems to be in defiance of law laid down by this Court in the case of Tariq Bashir and 5 others versus The State (PLD 1995 SC 34). 8. Another aspect of instant matter is that it has been established by this Court in various judgments that courts are reluctant to interfere as far as cancellation of bail is concerned even if the court is satisfied that the order passed by the court below is not sustainable in the eye of law, however, when material available on the record was evaluated it do not support misuse of concession by the accused in any manner. Hence, the cancellation of bail was declined; however, the matter was remanded back to the High Court if subsequently it comes on the record any material qua misuse of privilege at any stage. Reliance has been placed on the case SHAHID ARSHAD versus MUHAMMAD NAQI BUTT AND 2 others (1976 SCMR 360). 9. In view of the facts and circumstances narrated above, we are of considered view that the recalling of order granting bail to petitioners by the learned trial court was squarely unjustified, hence we are persuaded to grant leave to appeal in the instant petition while converting it into appeal and the same is allowed. The petitioners shall be released on bail subject to their furnishing bail bonds in the sum of Rs.5,00,000/- each with one surety each in the like amount to the satisfaction of the learned trial court/Duty Judge. Criminal Petition No. 231 of 2020. -:7:- 10. Before parting with the order, it has been made clear that the observations made hereinabove are tentative in nature and it has no bearing during the course of proceedings before the learned trial court. 11. These are the reasons of our short order dated 08.05.2020 which is reproduced below:- “For the reasons to be recorded separately, this petition is converted into appeal and is allowed. The petitioners are enlarged on bail subject to furnishing surety bonds in the sum of Rs.500,000/- each with PR bonds each in the like amount to the satisfaction of the trial court” Judge Judge Islamabad, 08.05.2020 Approved for reporting Athar

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Umar Ata Bandial Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.234 of 2020 (Against order dated 3.2.2020 passed by the Peshawar High Court Peshawar in Crl. Misc. No.3759-P/2019) Asfand Yar Khan & another …Petitioner(s) Versus The State & another …Respondent(s) For the Petitioner(s): Mr. Basharatullah Khan, ASC Syed Rifaqat Hussain Shah, AOR For the State(s): Mr. Arshad Yousafzai, ASC with Durran Shah, Inspector Date of hearing: 02.04.2020. ORDER Qazi Muhammad Amin Ahmed, J.- Asfand Yar Khan and Salman Khan, real brothers inter se, seek admission to bail; they have been arrayed as accused through supplementary statement dated 4.9.2019, in a case of homicide, registered on 17.8.2019 at Police Station Paharipura Peshawar on the statement of Nadim Safdar, acclaimed witness of the incident; he had blamed Asad, Farhan, Imran, Amjad and Aamir as the culprits for committing murder of his sister Sumera Safdar and driver Inaam Lag, who drove the entourage to attend proceedings in a case of murderous assault in District Courts Peshawar. Motive for the crime is bad blood over property with a string of cases raging between the parties. Sumera Safdar’s daughter through supplementary statement joined the petitioners with the co-accused, initially omitted by the complainant as well as the witnesses who claimed to have survived the assault. 2. Heard. Record perused. 3. Be that as it may, the petitioners were not named in the crime report as being alongside the accused who gunned down the Criminal Petition No.234 of 2020 2 deceased; all the witnesses are unanimous on the number of accused as five; the omission is intriguing and by itself brings petitioners’ case within the remit of subsection 2 of section 497 of the Code of Criminal Procedure 1898. Criminal Petition is converted into appeal and same is allowed; the petitioners shall be released upon furnishing bonds in the sum of Rs.500,000/- with one surety each in the like to the satisfaction of the learned trial Court/Duty Judge. Judge Judge Islamabad, the 2nd April, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: MR. JUSTICE JAWWAD S. KHAWAJA MR. JUSTICE GULZAR AHMED MR. JUSTICE MUHAMMAD ATHER SAEED CRIMINAL PETITION NO.240 OF 2012 (Against the order dated 07.06.2012 of the Lahore High Court, Lahore passed in Crl.Misc.No. 1496-B-2012) Salamat Ali alias Chaama … Petitioner VERSUS The state and another. … Respondents For the Petitioner: Mr. Maqbool Elahi Malik, ASC For Respondent No.1: Mr. Asjad Javed Ghural, Addl.PG.Pb. For Respondent No.2: Mr. Munir Ahmed Bhatti, ASC Date of Hearing: 31.08.2012 ORDER Jawwad S. Khawaja, J. The petitioner seeks bail in the case FIR No.417 dated 20.06.2011 under Sections 324, 427, 148, 149, 337-F(vi) PPC registered at Police Station city Muridkaey, District Sheikhupura. The order which has been passed by the learned trial court on 21.07.2012 is reproduced below in extenso:- 2. It is obvious that the learned trial Court exercised extreme patience and restraint but counsel retained by the petitioner adopted an attitude which has hindered the administration of justice. Mr. Maqbool Elahi Malik learned Sr. ASC candidly stated that the attitude of counsel for the petitioner before the learned trail Court was most improper and should not be countenanced. Upon being questioned we have been informed that Malik haider Zaman, Advocate Continues to be the counsel of the petitioner even to date. Learned counsel for the petitioner has argued that the testimony of even one witness has not been recorded in the case so far. This contention is of little relevance considering the attitude of the contention is of little relevance considering the attitude of the petitioner’s counsel noted in the order reproduced above. Learned counsel for the petitioner states that consequences of such attitude should not be visited on the petitioner, who according to him, had acquired a statutory right to bail under Section 497 CR.P.C. 3. In support of his contention, he referred to the cases titled Rahim Bux and others versus The State (PLD 1986 Karachi 224) & Zahid Hussain Shah versus The State (PLD 1995 SC 49). We have gone through the cited precedents and note that the same do not apply in the circumstances of the present case because the same are clearly distinguishable on facts. In the present case the petitioner acting through and represented by his counsel has actually obstructed the progress of the case. This was not the situation in the precedents cited by learned counsel for the petitioner. The petitioner by retaining the same counsel has, in effect, adopted and condoned the attitude of his counsel. The contention of the learned counsel for the petitioner is, therefore, misconceived as the present petition has itself demonstrated that the concession of bail or the discretionary exercise of our jurisdiction under Article 185 of the Constitution should not be exercised in view of what has been stated above and in the order of the learned trail Court dated 21.07.2012. 4. A competent, diligent and ethical Bar is an indispensable component of our judicial system. This system cannot function properly if Members of the Bar do not adhere to the code of conduct prescribed under the Legal Practitioners and Bar Councils Act, 1973. 5. This petition is, therefore, dismissed. A copy of the order shall be sent to the Punjab Bar Council for disciplinary proceedings against Malik Haider Zaman. A copy of the order shall also be sent to Hon’ble the Chief Justice of the Lahore High Court. We would like to express our appreciation for the dignified and firm approach taken by the learned trail Court in the face of provocation and trying circumstances. The office shall send a copy of this order to the learned trail Judge who was the Presiding Officer at the trail on 21.7.2012. Judge Judge Judge Islamabad, the: 31st August, 2012.       (Appellate Jurisdiction)                  Criminal Petition No. 240 of 2012 Crl. Misc. No. 1496-B-2012    07.06.2012                                            1            2     2012   31         324, 427, 148, 149,   20.06.11  FIR No. 417          21.07.12           PPC337-F(vi)                             03-04-12             presiding court     apprise            assume      press                                                                                                                                                       26.07.12      27                                                                                                                       2      ASC                                                                                             497            (PLD 1986 Karachi         3          PLD 1995 SC 49      224                                                                         185             21.07.12                           4       1973                      5                                   21.07.12         2012   31

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE YAHYA AFRIDI MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CRIMINAL PETITION NO. 245 OF 2023 (On appeal against the judgment dated 20.02.2023 passed by the Peshawar High Court, D.I.Khan in Crl. MBC No. 123-D/2022) Saeed Ullah, Yar Muhammad, Inayat Ullah … Petitioners Versus The State and another … Respondents For the Petitioners: Mr. Aftab Alam Yasir, ASC For the State: Mr. Sultan Mazhar Sher Khan, Addl. A.G. For the Complainant: Raja Muhammad Farooq, ASC Date of Hearing: 04.05.2023 ORDER SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through the instant petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have assailed the judgment dated 20.02.2023 passed by the learned Single Judge of the learned Peshawar High Court, D.I. Khan Bench, with a prayer to grant post-arrest bail in case registered vide FIR No. 300 dated 17.11.2021 under Sections 324/34 PPC at Police Station SNK, District D.I. Khan, in the interest of safe administration of criminal justice. 2. Briefly stated the allegation against the petitioners is that they along with co-accused while armed with Kalashnikovs launched a murderous assault on the complainant party and due to the firing made by them, the complainant sustained injuries on his body. After their arrest, the petitioners applied for post-arrest bail before the learned Trial Court and succeeded in getting the relief sought for. Being aggrieved, the complainant filed cancellation of bail petition before the learned High Criminal Petition No. 245/2023 2 Court, which has been allowed vide impugned judgment. Hence, this petition seeking leave to appeal. 3. At the very outset, it has been argued by learned counsel for the petitioners that the petitioners have been falsely roped in this case against the actual facts and circumstances. Contends that the allegations leveled against the petitioners are false, frivolous, baseless, concocted and the prosecution story is not worthy of credit. Contends that in the crime report no specific role has been attributed to the petitioners and the same is general in nature, therefore, the case of the petitioners is one of further inquiry. Contends that injuries sustained by the complainant are on non- vital parts of the body, as such, the provision of Section 324 PPC is not attracted in the case. Contends that the learned High Court while recalling the bail granted to the petitioners has not followed the guidelines issued by this Court for the safe administration of criminal justice, therefore, the same may be set at naught and the petitioners may be released on bail. 4. On the other hand, learned Law Officer assisted by learned counsel for the complainant opposed the petition by contending that the petitioners have specifically been nominated in the crime report with a specific role of firing at the complainant, therefore, they do not deserve any leniency from this Court 5. We have heard learned counsel for the parties at some length and have perused the available record with their able assistance. 6. As per the contents of the crime report, the allegation against the petitioners is that they along with co-accused while armed with Kalashnikovs launched a murderous assault on the complainant party and due to the firing made by them, the complainant sustained injuries on his body. There is no denial to this fact that it’s a case of promptly lodged FIR as the matter was reported to the Police within an hour of the occurrence. However, we have noted that only a general role has been ascribed to the petitioners and no details have been given as to which petitioner fired at which part of the body of the complainant. The Criminal Petition No. 245/2023 3 complainant received injuries on the non-vital parts of the body. A bare perusal of the medico legal report reveals that at the one hand the medical officer declared the injuries as “simple” and on the other hand he held the same to be “grievous”. On court query, learned Law Officer admitted that none of the injuries exposed the bone. It is now well settled principle of law that if two views are possible from the evidence adduced in the case then the view favourable to the accused is to be adopted. Reliance is placed on Saghir Ahmed Vs. State (2023 SCMR 241) and Sahib Ullah Vs. The State (2022 SCMR 1806). As stated above, the complainant sustained injuries on non-vital parts of the body whereas more than 37 empties have been recovered from the place of occurrence, which prima facie shows that the accused had no intention to kill the complainant despite having ample opportunity to do so. In this view of the matter, the question whether Section 324 PPC would be applicable in the case or not would be determined by the learned Trial Court after recording of evidence. In the case reported as Samiullah Vs. Laiq Zada (2020 SCMR 1115), this Court has framed following seven guidelines for the purpose of cancellation of bail: - “i) If the bail granting order is patently illegal, erroneous, factually incorrect and has resulted into miscarriage of justice. ii) That the accused has misused the concession of bail in any manner. iii) That accused has tried to hamper prosecution evidence by persuading/pressurizing prosecution witnesses. iv) That there is likelihood of absconsion of the accused beyond the jurisdiction of court. v) That the accused has attempted to interfere with the smooth course of investigation. vi) That accused misused his liberty while indulging into similar offence. vii) That some fresh facts and material has been collected during the course of investigation which tends to establish guilt of the accused.” 7. On our specific query, learned counsel for the complainant admitted that none of the above-said principles have been violated, which could be made basis to cancel the bail granted to the petitioners by the Criminal Petition No. 245/2023 4 learned Trial Court. In the Samiullah supra case this Court in categorical terms has held that where material available on the record does not support a finding of misuse of concession of bail by the accused in any manner, the court can decline cancellation of bail even if it is satisfied that the bail granting order passed by the court below is not sustainable in the eye of law. However, we are of the view that the learned High Court did not take into consideration the above aspect of the matter. Even this Court has shown magnanimity where although the order granting bail to the accused by the court was found to be perverse but showed reluctance to recall the order. Reliance is placed on Shahid Arshad Vs. Muhammad Naqi Butt (1976 SCMR 360). This court in a number of cases has held that liberty of a person is a precious right, which has been guaranteed under the Constitution of Islamic Republic of Pakistan, 1973, and the same cannot be taken away merely on bald and vague allegations. Taking into consideration all the facts and circumstances stated above, we are of the view that the case of the petitioners squarely falls within the ambit of Section 497(2) Cr.P.C. entitling for further inquiry into their guilt. 8. For what has been discussed above, we convert this petition into appeal, allow it and set aside the impugned judgment. The petitioners are admitted to bail subject to their furnishing bail bonds in the sum of Rs.200,000/- each with one surety each in the like amount to the satisfaction of learned Trial Court. JUDGE JUDGE Islamabad, the 4th of May, 2023 Not Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Umar Ata Bandial Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.251 of 2020 (Against order dated 6.2.2020 passed by the Lahore High Court Lahore in Crl. Misc. No.2091-B/2020) Alamgir Khan …Petitioner(s) Versus The State & another …Respondent(s) For the Petitioner(s): Mr. Abdul Latif Afridi, ASC For the State: Mr. Ahmed Raza Gillani, Additional P.G. Punjab with M. Nawaz SHO and M. Sarwar, SI, P.S. Civil Lines, Lahore. Date of hearing: 30.03.2020. ORDER Qazi Muhammad Amin Ahmed, J.- Behind bars since 01.12.2019, Alamgir Khan alias Alamgir Wazir, petitioner, seeks admission to bail; it is alleged that on 29.11.2019, at about 4:30 p.m, he delivered an incendiary speech, on a loud speaker, to a rally comprising 250/300 participants on the Mall Road Lahore; speakers incited the participants through inflammatory addresses against the State institutions, video streamed by the officials deployed at the scene captured the incident; a case vide FIR No.990 of 2019 under Sections 124-A, 290, 291 of the Pakistan Penal Code, 1860 read with Section 16 of the Maintenance of Public Order 1960 and Section 6 of the Punjab Sound Systems (Regulations) Act 2015 was registered on the complaint of Muhammad Nawaz SI with Police Station Civil Lines Lahore on 01.12.2019. 2. Learned counsel for the petitioner contends that the petitioner, hailing from the District South Wazirastan, is an errant youth, emotionally devastated by colossal loss of lives of his clan including that of his father at the hands of Taliban in the aftermaths of Criminal Petition No.251 of 2020 2 war against terror and as such his outburst cannot be viewed as seditious within the contemplation of section 124-A of the Code ibid; it is next argued that offence of sedition though possibly punishable with imprisonment for life, nonetheless, carries the possibility of shorter sentence extending to three years while the coordinate charges do not attract the “prohibition”. Referring to clean antecedents, Mr. Abdul Latif Afridi, ASC, under instructions, emphatically pledged petitioner’s discreet and cautious future conduct. Learned Law Officer contested the plea by relying upon the transcript of the impugned speech to argue that the petitioner not only disrupted the public life on a thoroughfare in the metropolis but also incited sedition to the public at large and, thus, his release would be prejudicial to peace, security and tranquility. 3. Heard. Record perused. 4. Freedom of speech is a most cherished right, guaranteed under the Constitution; it is certainly subject to “reasonable restrictions” within the contemplation of Article 19 thereof; whether in his outburst, mentioned in the transcript, the petitioner contravened the stipulated restrictions, is a question to be best settled by the trial Court, having regard to the totality of the impugned discourse, after conclusion of evidence. State must be benign upon dissent and criticism of its citizens, no matter how crudely articulated or misplaced, on the issues of desecration of the right to life during war through opinions, though subjective, nonetheless, actuated by personal anguish; it must stand on surer foundations. Petitioner is a student, his days of incarceration are serving no useful purpose to the prosecution. Criminal Petition is converted into appeal and same is allowed; the petitioner shall be released upon furnishing bond in the sum of Rs.100,000/- with one surety in the like to the satisfaction of the learned trial Court/Duty Magistrate. Judge Judge Islamabad, the 30th March, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE SAJJAD ALI SHAH MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CRIMINAL PETITION NO.252 OF 2020 (Against the order of the Lahore High Court, Bahawalpur Bench, Bahawalpur dated 22.01.2020 passed in Crl.Misc. (No. 3350-B/2019) Babar Hussain … Petitioner Versus The State and another … Respondents For the Petitioner : Mr. Qadeer Ahmad Rana, ASC For the State : Mirza Usman, DPG Punjab with Shafqat SHO, police station Manchanabad. Date of Hearing : 13.04.2020 ORDER SAYYED MAZAHAR ALI AKBAR NAQVI:- Petitioner Babar Hussain has sought leave to appeal under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 against the order of learned Lahore High Court, Bahawalpur Bench, Bahawalpur dated 22.01.2020 by which the petition for post arrest bail was declined in case FIR No.106/2018 dated 07.03.2018, registered with police station Manchanabad, District Bahawalnagar. 2. As per allegations, contained in the crime report, it is alleged that the petitioner and his co-accused committed theft of dry batteries from Ufone Tower and during the occurrence, his co- accused Attaullah was murdered. The petitioner was saddled with responsibility of alleged crime. In response to the crime report, the petitioner was taken into custody by local police. He applied for post arrest bail before learned trial court which was declined vide order Criminal Petition No. 252 of 2020. -: 2 :- dated 12.11.2019; the same was assailed before learned High Court through Crl. Misc. No. 3350-B of 2019 which too met the same fate, hence, this petition. 3. The crux of the arguments advanced by the learned counsel for the petitioner is that there is allegation of generalized nature of resorting to indiscriminate firing against all the accused persons nominated in the crime report. They indulged in such an act when they were confronted by the security staff deployed over there after hearing voice of safety alarm installed there. The accused persons escaped from the scene of occurrence while resorting to indiscriminate firing which as per prosecution case ultimately had hit Attaullah who succumbed to the injuries after five to seven days. There is no denial to this fact that allegation of firing is ascribed to all the accused while escaping from the scene of occurrence. The statement of Attaullah deceased coupled with the application moved by widow of deceased to District Police Officer alleged that the firing was made by the petitioner before this Court. As far as the culpability of deceased as alleged in the crime report is taken into consideration, whereas the veracity of other story advanced by the deceased while making dying declaration couple with the application moved by widow of the deceased to the District Police Officer, it cannot be adjudicated at this juncture of time rather it would be decided by learned trial court after recording of evidence during the course of trial. 4. As far as the contention of learned Law Officer that the petitioner is involved in six other criminal cases would not disentitle him from the relief sought for as learned Law Officer frankly Criminal Petition No. 252 of 2020. -: 3 :- conceded that petitioner has not been convicted in any case, hence, mere involvement in criminal cases could not be a ground to withhold the concession of bail in the given circumstances. Reliance in this regard is placed upon cases titled as “Moundar and others vs. The State” (PLD 1990 S.C. 934) and “Muhammad Rafique Vs. The State” (1997 SCMR 412). As the allegation against the petitioner is of two versions, one advanced in the crime report, the other brought on the record in the shape of statement of Attaullah deceased as well as mentioned in the application filed by the widow of the deceased, it would squarely bring the case of the petitioner within the ambit of further inquiry falling under section 497(2) Cr.P.C. entitling him for the relief sought for. Otherwise liberty of a person is a precious right which has been guaranteed in the Constitution of Islamic Republic of Pakistan, 1973. Keeping in view the facts and circumstances brought on the record, we are persuaded to grant leave in this case. As a consequence, Criminal Petition is converted into appeal, same is allowed; the petitioner shall be released on bail subject to furnishing of bail bonds in the sum of Rs.5,00,000/- with one surety in the like amount to the satisfaction of the learned trial Court/Duty Judge. Judge Judge Islamabad, 13.04.2020 Approved for reporting Athar

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Umar Ata Bandial Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.258 of 2020 (Against judgment dated 06.02.2020 passed by the Lahore High Court Lahore in Crl. Misc. No.4879- B/2020) Muhammad Jahangir Afzal …Petitioner(s) Versus The State through P.G. Punjab & another …Respondent(s) For the Petitioner(s): Mr. Shamim-ur-Rehman Malik, ASC Syed Rifaqat Hussain Shah, AOR For the State: Mr. Ahmed Raza Gillani Addl. Prosecutor General Punjab with Abdul Ghani, SI For the Complainant: In person Date of hearing: 28.04.2020. ORDER Qazi Muhammad Amin Ahmed, J.- Adnan Ahmed, 26, was shot dead at 8:30 p.m. on 22.8.2019 within the remit of Police Station Ferozwala, District Sheikhupura; Muhammad Tariq PW survived the assault; incident was reported by deceased’s mother Talat Gulzar through written application wherein Rohail son of Gulzar accompanied by an unknown assailant was blamed for the assault without reference to motive for the crime; she inducted the petitioner as accused through supplementary statement purportedly recorded on 23.08.2019, in line with even dated statements of her brother Shafqat and daughter Sobia, acclaimed witnesses of the incident. Muhammad Tariq, injured PW, through statement dated 26.8.2019 took the petitioner on board as well, though in a manner, diametrically different. According to Muhammad Tariq PW, he alongside the deceased was surprised by the petitioner and Rohail co-accused, riding a motorbike, while they were present in the lane during load shedding; complainant as well as the witnesses named in the crime report are conspicuous by their absence; they are substituted by Tariq’s sister Criminal Petition No.258 of 2020 2 Shamim Akhtar; retracting therefrom, he ditched the prosecution on 08.11.2019 by substituting the petitioner with an unknown assailant who accompanied the nominated co-accused. 2. Heard. Record perused. 3. Seemingly there is no consensus between the complainant and the injured on the identity of the petitioner; even subsequently assigned role to the petitioner is not shared by the Investigating Officer who merely depicted his presence at the crime scene in a manner incompatible with witnesses’ narrative. Evidential value of supplementary statements with the possibility of a space to reconcile differences between the witnesses is an exercise that can be best undertaken after recording of evidence and as such petitioner’s culpability for the present is squarely covered by subsection 2 of section 497 of the Code of Criminal Procedure 1898; a case for grant of bail stands made out. Criminal Petition is converted into appeal and allowed; petitioner shall be released on bail subject to his furnishing bond in the sum of Rs.500,000/- with one surety in the like amount to the satisfaction of the learned trial Court/duty Judge. Judge Judge Islamabad, the 28th April, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition Nos.26-P & 27-P of 2020 (Against the order dated 14.11.2019 passed by the Peshawar High Court Peshawar passed in Cr.A. No.104-P/2019) State through Director ANF (in both cases_ …Petitioner(s) Versus Aurangzeb (in Cr.P..26-P/2020) Malook (in Cr.P.27-P/2020) …Respondent(s) For the Petitioner(s): Mr. Muhammad Tariq, Special Prosecutor, ANF (in both cases) For the Respondent(s): N.R. (in both cases) Date of hearing: 28.07.2021 ORDER Qazi Muhammad Amin Ahmed, J.- Commonality of the issue binding Cr. P.26-P of 2020 with Cr. P.27-P of 2020, directed against Aurangzeb and Malook, respondents, respectively, necessitates a joint consideration. The respondents were hauled up, on 28.11.2017, by a contingent of Anti-Narcotic Force Peshawar with 18.600 kilograms of methamphetamine, a synthetic psychoactive drug, designated as a contraband within the contemplation of section 8 of the Control of Narcotic Substances Act, 1997; it comprised of 34000 tablets, wrapped in packets, comprising two lots, separately secured from different points; 34 tablets from each lot were sent for forensic analysis that confirmed their narcotic character as “Metamfetamine, Benzodiazepine, Phencyclindine And Morphine”. 2. Indicted under clause (c) of Section 9 of the Act ibid, respondents claimed trial that resulted into their conviction thereunder; vide judgment dated 29.01.2019, they were sentenced to imprisonment for life with a direction to pay fine in the sum of rupees one million each; the High Court, however, considering the samples for forensic Criminal Petition No.26 & 27-P/2020 2 analysis as deficient in terms of law declared by this Court in Ameer Zaib case (PLD 2012 SC 383) altered their conviction in appeals, separately filed by the convicts, into clause (a) of the section ibid and reduced their sentences to the periods already undergone by them with a substantial reduction in the fine vide impugned judgment dated 14.11.2019, vires whereof, are being assailed on the grounds that there was no occasion for the High Court after maintaining the convictions to reduce convicts’ sentences on a premise hardly sustainable in law. The learned counsel elaborated his point of view by arguing that the High Court had misdirected itself to apply the principle laid down in the supra case in disregard to the nature, shape and format of the contraband, uniquely integrated into small tablet form, incapable of traditional sampling suggested in the case; he next argued that the Control of Narcotic Substances Act covered a wide range of “narcotic drugs, psychotropic substances or controlled substances” manufactured, marketed and administered through various mediums other than usual chunks of shaped pieces and, thus, in the peculiar circumstances of case, dispatch of 34 tablets, from each lot, squarely constituted representative samples, leaving no space for a contra hypothesis. Any other interpretation or approach would defeat the legislative intent and purpose, concluded the learned Law Officer. Leave is granted to examine the validity of above position. Send for the respondents through bailable warrants in the sum of Rs.200,000/- each, returnable to the Assistant Registrar of this Court at Peshawar. Station House Officer shall execute the warrants within a fortnight. Judge Judge Peshawar, the 28th July, 2021 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmad Malik Mr. Justice Syed Mansoor Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.263-L of 2015 and Jail Petition No.407 of 2018 (Against the judgment dated 16.01.2015 passed by the Lahore High Court Lahore in Criminal Appeal No. 1626/2010 with M.R. No.413/2010) Ibrar Hussain (in Cr.P. 263-L/2015) Riaz Hussain (in J.P. 407/2018) …Petitioner(s) Versus The State (in both cases) …Respondent(s) For the Petitioner(s): Mrs. Nighat Saeed Mughal, ASC (in Cr.P. 263-L/2015) N.R. (in J.P.407/2018) For the State: Rana Abdul Majeed, Additional Prosecutor General Punjab Date of hearing: 16.07.2020. JUDGMENT Qazi Muhammad Amin Ahmed, J.- Ibrar Hussain son of Zawar Hussain and Riaz Hussain son of Ashiq Hussain, petitioners herein, were tried by the learned Sessions Judge Mianwali for committing Qatl-i-Amd of Abdul Aleem, 35/36, on 14.10.2008 at 7:45 p.m, inside his home, located within the remit of Police Station Wan Bhachran, District Mianwali; they were returned a guilty verdict vide judgment dated 15.06.2010; convicted under clause (b) of section 302 of the Pakistan Penal Code, 1860, both were sentenced to death, altered into imprisonment for life by the High Court vide impugned judgment dated 16.01.2015, vires whereof are being Criminal Petition No.263-L of 2015 and Jail Petition No.407 of 2018 2 separately assailed through Criminal Petition No.263-L of 2015 and Jail Petition No.407 of 2018; the latter barred by 1189 days; financial incapacity appears to have impeded Riaz Hussain’s approach to this Court in time, in view whereof delay of 1189 days in filing of the petition is condoned in the interest of justice, additionally justifiable on account of con-convict’s petition within the period of limitation; bound by a common thread, these are being decided through this single judgment. 2. Incident was reported by deceased’s father Abdul Raheem, since dead, through statement Ex.PK, recorded by Muhammad Iqbal, Inspector (PW-12) at the police station situating 9-k.m. from the venue at 10:15 p.m. According to the complainant, deceased, a Hakeem by profession, was running a shop for last 12/13 years where he used to stay, off and on, and the complainant occasionally visited him as well. On the fateful night at 7:45 p.m, the deceased along with the complainant, Gul Muhammad and Haji Khalid Masood (PW-11) was sitting in the courtyard when the petitioners, armed with .12 caliber shotguns entered the home. Ibrar Hussain raised Lalkara and targeted the deceased on the left side of his chest followed by Riaz Hussain with a shot that landed on the pelvis; Ibrar Hussain repeated a shot hitting his left shin; upon hue and cry, they took to the heels. Witnesses claimed to have seen the incident in the bulb light. It is alleged that the deceased also attended his patients, including the females, at the residence and he objected over the petitioners’ presence outside his dwelling that resulted into exchange of hot words, a rancor that prompted the petitioners to assault the deceased. Autopsy was conducted following day at 7:00 a.m. Five entry wounds with multiple apertures surrounded by blackened margins, riddled mainly frontal parts of deceased’s body. During inspection though blood, forensically opined as that of human origin, was secured, however, surprisingly no casing is shown or secured at the spot, nonetheless, the petitioners after their arrest on 6.3.2009, pursuant to disclosures, got recovered guns P-1 and P-3 on 11.03.2009. 3. Learned counsel for the petitioners contends that occurrence did not take place within the view of the witnesses nor at a point of time stated in the crime report; that the High Court disbelieved the motive and viewed recovery of guns as inconsequential and, thus, there was no occasion to maintain conviction on the statement of solitary chance witness; that autopsy was conducted with considerable delay and findings thereof were not in line with the details narrated in the First Information Criminal Petition No.263-L of 2015 and Jail Petition No.407 of 2018 3 Report; the conviction on such deficient evidence was not sustainable, concluded the learned counsel. Learned Law Officer has faithfully defended the impugned judgment. 4. Heard. Record perused. 5. Death intervened the complainant and Gul Muhammad PWs to enter the witness box, leaving behind Khalid Masood (PW-11), the sole narrator of the crime; fate of the case is inexorably linked with his deposition. Though, somehow related with the deceased, the witness, a fertilizer dealer running a shop nearby his house, located at a distance of 9 kilometer from the venue, his presence at the spot sans any purpose or justification on a Tuesday apparently after close of the day; argument that he was a chance witness cannot be summarily dismissed and in retrospect warrants a more cautious scrutiny of his statement. Similarly the position that occurrence took place much later in point of time than mentioned in the crime report merits serious consideration in view of observations recorded by the Medical Officer, who found that “Stomach was perforated and damaged and it was full of partially digested food” as it does not synchronize with the hypothesis of last intake to tally with the stated time of occurrence. Five entry wounds on different sides of chest, abdominal and pubic area, inner aspect of right thigh and back of right leg with multiple apertures also prima facie negate the story of three fire shots. Absence of any casing is yet another intriguing aspect of the case compounded by blackening that encircled the each wound. Source of light to establish identification of the assailants beyond doubt is yet another predicament confronting the prosecution. The prosecution has relied upon an electric bulb as the sole source of light to identify the petitioners, however, Khalid Masood (PW-11) admitted in his cross-examination that there was load shedding at the time of occurrence; he has tried to introduce a UPS (Uninterrupted Power Supply), an apparatus that does not figure anywhere on the record. In a sizzling hot season, presence of witnesses in the courtyard without any apparent purpose makes their presence all the more doubtful. With prosecution’s multiple failures on motive, consequential recoveries, aggravated by a suspect source of light and delayed postmortem, solitary statement of a chance witness, may not be relied without potential risk of error as the circumstances cumulatively suggest a scenario other than what meets the eye. It would be unsafe to maintain the convictions, thus, Criminal Petition No.263-L of 2015 and Jail Petition No.407 of 2018 are converted into appeals and allowed; Criminal Petition No.263-L of 2015 and Jail Petition No.407 of 2018 4 impugned judgment dated 16.01.2015 is set aside; petitioners/appellants are acquitted of the charge and shall be released forthwith, if not required to be detained in any other case. Judge Judge Judge Lahore, the 16th July, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MUNIB AKHTAR MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI MR. JUSTICE ATHAR MINALLAH CRIMINAL PETITION NO. 263 OF 2023 (On appeal against the order dated 22.02.2023 passed by the High Court of Sindh, Karachi in Crl. Bail Application No. 2107/2022) Salman Zahid … Petitioner Versus The State through P.G. Sindh … Respondent For the Petitioner: Mr. Aamir Mansoob Qureshi, ASC (via video link from Karachi) For the State: Mr. Hussain Bux Baloch, Addl. P.G. Mr. Imtiaz Ali, Inspector Mr. Rizwan Shah, Inspector (Via video link from Karachi) For the Complainant: Mr. Saalim Salam Ansari, ASC (Via video link from Karachi) Date of Hearing: 27.04.2023 ORDER SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through the instant petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed the order dated 22.02.2023 passed by the learned Single Judge of the learned High Court of Sindh, Karachi, with a prayer to grant post- arrest bail in case registered vide FIR No. 808 dated 29.06.2021 under Sections 302/337-J/109/34 PPC at Police Station Gulshan-e-Iqbal, District East, Karachi, in the interest of safe administration of criminal justice. 2. Briefly stated the prosecution story as narrated in the crime report is that on 27.06.2021, the son of the complainant namely Yusha Rizwan along with his wife Areen Jannat, went to three places namely (i) Greeno Juice Centre, (ii) KFC and (iii) a medical store and from these three places, he had some intoxicated thing, which ultimately caused his death. On 29.06.2021, the complainant got lodged the FIR against the unknown persons, who were present at these three places at the relevant time. On 30.06.2021, the Criminal Petition No. 263/2023 2 complainant got recorded his statement under Section 161 Cr.P.C. wherein he did not nominate anyone as an accused. On 09.07.2021, after 12 days of the lodging of the FIR, the complainant recorded his further statement under Section 161 Cr.P.C. in which he suspected the petitioner and others to be murderer of his son. On 28.12.2021, after lapse of more than six months, the complainant got recorded yet another further statement under Sections 161 Cr.P.C. wherein he nominated the petitioner to be the real culprit. The petitioner was arrested on 17.02.2022 whereafter he applied for post-arrest bail before the learned Trial Court as also before the learned High Court but could not get the relief sought for. Hence, this petition. 3. At the very outset, it has been argued by learned counsel for the petitioner that the petitioner has been falsely roped in this case against the actual facts and circumstances. Contends that the allegations leveled against the petitioner are false, frivolous, baseless, concocted and the prosecution story is not worthy of credit. Contends that the complainant nominated the petitioner in his statement recorded under Section 161 Cr.P.C. after a period of six months, therefore, it looses its sanctity. Contends that the USB allegedly containing audio recording of conversation between the petitioner and the star witness Nawaz was never sent for forensic examination. Contends that the entire case of the prosecution is based upon circumstantial evidence and the same is not sufficient to connect the petitioner with the commission of the crime. Lastly contends that the learned High Court while declining bail to the petitioner has not followed the guidelines issued by this Court for the safe administration of criminal justice, therefore, the same may be set at naught and the petitioner may be released on bail. 4. On the other hand, learned Law Officer assisted by learned counsel for the complainant opposed the petition by contending that the petitioner has specifically been nominated by the complainant while recording his supplementary statement and he was found involved during police investigation, therefore, he does not deserve any leniency from this Court. 5. We have heard learned counsel for the parties at some length and have perused the available record with their able assistance. Criminal Petition No. 263/2023 3 As per the contends of the crime report, on 27.06.2021 the son of the complainant namely Yusha Rizwan along with his wife Areen Jannat, went to three places namely (i) Greeno Juice Centre, (ii) KFC and (iii) a medical store and from these three places, he had some intoxicated thing, which ultimately caused his death. On 29.06.2021, the complainant got lodged the FIR against the unknown persons, who were present at the above-said three places at the relevant time. On 30.06.2021, the complainant got recorded his statement under Section 161 Cr.P.C. wherein he did not name anyone as an accused. However, on 09.07.2021, after 12 days of the lodging of the FIR, the complainant recorded his further statement under Section 161 Cr.P.C. in which he suspected the petitioner and others to be murderer of his son. He further got recorded his statement on 28.12.2021 i.e. after lapse of more than six months wherein he nominated the petitioner to be the real culprit. A bare look of the crime report and the subsequent statements of the complainant under Section 161 Cr.P.C. shows that the complainant remained changing his stance. In his statement dated 28.12.2021, it was stated that one Nawaz Mehmood was contacted by the petitioner for the murder of the deceased but instead of arraying the said Nawaz Mehmood as an accused, he was made a witness. This is now a well settled proposition of law that any statement of the prosecution witnesses if recorded at a belated stage, it looses its sanctity. Reliance is placed on the judgments reported as Abdul Khaliq Vs. The State (1996 SCMR 1553) and Noor Muhammad Vs. The State (2020 SCMR 1049). We have been informed that the USB allegedly containing audio recording of conversation between the petitioner and the star witness Nawaz Mehmood has not been sent for forensic examination, therefore, in view of the law laid down by this Court in Ishtiaq Ahmed Mirza Vs. Federation of Pakistan (PLD 2019 SC 675) it is unsafe to rely upon the same as a piece of evidence in a court of law. The prosecution case hinges upon the circumstantial evidence. The fundamental principle of universal application in cases dependent on circumstantial evidence is that in order to justify the inference of guilt of an accused, the incriminating fact must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt. The cumulative effect of all these aspects creates a doubt in the genuineness of prosecution version. It is settled principle of law that benefit of doubt can be even extended Criminal Petition No. 263/2023 4 at bail stage. Reliance is placed on Muhammad Ejaz Vs. The State (2022 SCMR 1271), Muhammad Arshad Vs. The State (2022 SCMR 1555) & Fahad Hussain Vs. The State (2023 SCMR 364). Although the petitioner was found involved during Police investigation but it is settled law that ipsi dixit of the Police regarding the guilt or innocence of an accused could not be depended upon as the same would be determined by Trial Court on the basis of evidence available on record. The petitioner is a young boy of 18/19 years of age and reportedly a heart patient. He is behind the bars for the last more than 14 months. This court in a number of cases has held that liberty of a person is a precious right, which has been guaranteed under the Constitution of Islamic Republic of Pakistan, 1973, and the same cannot be taken away merely on bald and vague allegations. Taking into consideration all the facts and circumstances stated above, we are of the view that the case of the petitioner squarely falls within the ambit of Section 497(2) Cr.P.C. entitling for further inquiry into his guilt. 6. For what has been discussed above, we convert this petition into appeal, allow it and set aside the impugned order. The petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs.200,000/- with one surety in the like amount to the satisfaction of learned Trial Court. Before parting with the order, we may observe that the observations made in this order are tentative in nature and would not prejudice the proceedings before the Trial Court. JUDGE JUDGE JUDGE Islamabad, the 27th of April, 2023 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL MR. JUSTICE QAZI MUHAMMAD AMIN AHMED Criminal Petition No.27-P of 2014 (Against the judgment dated 05.03.2014 passed by the Peshawar High Court Peshawar in Cr. A. No.100/2011) Gul Zarin and other …Petitioner Versus Fazal Khaliq and another ..Respondent For the Petitioner(s): Haji Muhammad Zahir Shah, ASC For the Respondent(s): N.R. For the State: Mr. Muhammad Nisar, Addl. Advocate General KPK Date of hearing: 06.7.2021 ORDER Qazi Muhammad Amin Ahmed, J-. Respondent was tried for murderous assault as well as on two counts of homicide by a learned Additional Sessions Judge at Wari, District Dir Upper; convicted on all counts, he was sentenced to imprisonment for life and ten years rigorous imprisonment respectively vide judgment dated 10.10.2011, overturned by a Division Bench of Peshawar High Court, Mingora Bench vide impugned judgment dated 03.05.2014, vires whereof, are being assailed on the grounds that in the face of overwhelming evidence comprising of witnesses that included an injured to support a dying declaration, there was no occasion for the High Court to acquit the respondent, blamed alongside the absconding co-accused for the crime in the backdrop of a motive over immovable property, resulting into the loss of two lives; he has referred to respondent’s return after absconsion, spreading over a quarter of a century with his accomplices still away from law, to finally earn acquittal. The learned counsel has further argued that non-performance of autopsy on the dead, being a practice in line with Cr.P.27-P/2014 2 local custom did not adversely reflect upon the prosecution case inasmuch as the homicidal deaths of both the deceased remained a common ground throughout; according to him, the impugned view being based upon reasons, artificial and illusory, is untenable at law and, thus, tends to result into miscarriage of justice, clamouring interference by this Court. Though much water has flown under the bridge, nonetheless, the peculiar facts and circumstances of the case, despite flux of time, call for reappraisal of prosecution’s evidence to secure the ends of justice. Leave is granted, inter alia, to consider the above contentions. Send for the respondent through bailable warrant in the sum of Rs.200,000/- with one surety in the like amount, returnable to the Assistant Registrar of this Court at Peshawar, to be executed through the Station House Officer, within a fortnight. Judge Judge Peshawar, 6th July, 2021 Azmat/- ‘Not approved for reporting’

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CRIMINAL PETITION NO. 273-L OF 2021 (On appeal against the order dated 11.02.2021 passed by the Lahore High Court, Lahore in Crl. Misc. No. 65023-B/2020) Major Rehan Zia … Petitioner Versus The State and another …Respondent(s) For the Petitioner: Mr. Muhammad Anes Ghazi, ASC a/w petitioner in person For the State: Mr. Khurram Khan, Addl.P.G. Punjab Mr. Nasir, S.I For the Respondent (2): Ms. Lubna Afzal, in person Date of Hearing: 03.01.2022 ORDER SAYYED MAZAHAR ALI AKBAR NAQVI, J.- The petitioner through this petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, has assailed the order dated 11.02.2021 passed by the learned Single Judge of the Lahore High Court, Lahore, with a prayer to grant pre-arrest bail in case registered vide FIR No. 120/2020 dated 13.03.2020 under Sections 448/380 PPC with Police Station Model Town, Lahore, in the interest of safe administration of criminal justice. 2. Precisely the allegation against the petitioner is that in between the night 17/18-08-2019, he had broken up the locks of the room of the complainant; had stolen the luggage belonging to the complainant and thereafter while misusing his official authority occupied the room and extended threats to dire consequences. 3. The learned counsel for the petitioner at the very outset has argued that the petitioner has been falsely roped in this case Criminal Petition No. 273-L/2021 -: 2 :- against the actual facts and circumstances due to mala fides of the complainant in connivance with local police. Further contends that the occurrence has taken place in the dark hours on 17/18-08-2019, however, the matter was reported with the delay of seven months for which no plausible explanation has been rendered. Contends that even prior to lodging of the instant application, an application was filed on 30.09.2019, which was found false during the course of interrogation by two senior gazetted officers of the Police. Contends that the allegations against the petitioner are bald, which are not substantiated by any material and even the list of articles allegedly stolen was placed on the record after the registration of the crime report, which is sufficient to discard the whole prosecution case. Contends that the petitioner being an Army officer was posted in operational area of Wanna at the time of alleged occurrence and as such the whole prosecution case is smashed to ground on this score alone. Contends that the very registration of this case is nothing but an abuse of process of law. Lastly contends that the petitioner being an Army officer, there is no chance of his absconsion. 4. On the other hand, learned Law Officer contends that the complainant had no malice to falsely involve the petitioner in the present case but admitted that he had expired during the pendency of the case. Further contends that the petitioner is specifically arrayed as an accused, therefore, he does not deserve any leniency by this Court. 5. We have heard learned counsel for the parties at some length and have perused the available record. There is no denial to this fact that the instant prosecution was lodged with inordinate delay of about seven months in which the petitioner has sought extraordinary relief from this Court. The perusal of the record clearly reflects that it was at- least the second attempt made by the complainant to proceed against the petitioner. In earlier round of litigation, the accusation against the petitioner was found baseless and in this regard a detailed inquiry was carried out by SP Model Town, Lahore. After Criminal Petition No. 273-L/2021 -: 3 :- the completion of the inquiry, the Inquiry Officer, a senior police officer was also saddled with the allegation of not conducting the investigation as per law. The same was probed into by SSP (Accountability) and the fate of the allegation against SP Model Town was found to be baseless and without any legal justification. Perusal of the instant petition reveals that there are only bald allegations against the petitioner as time, date and detail of the allegedly stolen articles is not given. Even it is an admitted fact that the petitioner is the sole proprietor of the house and this has been declared by a court of competent jurisdiction after prolonged litigation. It has been brought to the notice of this Court that after the moving of application before the Investigating Officer, the complainant passed away. During the course of proceedings, one lady claiming herself to be sister-in-law of the deceased complainant tried to take charge as complainant. She was in-fact claiming her status on the basis of a power-of-attorney, which does not exist in the eyes of law as the executant of the same has already passed away. As far as criminal law is concerned, the concept of initiation of prosecution lies with the aggrieved person under Section 154 Cr.P.C. and thereafter the same is entrusted to the State whereas under Section 494 Cr.P.C if the proceedings are supposed to be withdrawn, the same is responsibility of the Public Prosecutor. After the promulgation of Qisas and Diyat Ordinance, 1990, the scope of aggrieved person has been extended. However, it was only limited to the cases relating to bodily harm. The instant case only relates to Sections 448/380 PPC, which do not come within the ambit of bodily harm, therefore, the extension of definition of aggrieved person is not available to said lady in the given circumstances. We have also noticed that the petitioner, who is an officer of Pakistan Army has been entangled in this case on the basis of material, which prima facie does not constitute any offence. Even otherwise, he being a member of the services, it seems that there is no chance of his absconsion, which aspect further lends support in his favour as far as the relief sought for is concerned. Unfortunately, the courts below have altogether ignored these aspects, which may intrude the concept of safe administration of criminal justice. Criminal Petition No. 273-L/2021 -: 4 :- 6. In view of the facts and circumstances narrated above and evaluated on the touchstone of criminal justice, we convert this petition into appeal, allow it and set aside the impugned order dated 11.02.2021. The petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs.200,000/- with one surety in the like amount to the satisfaction of learned Trial Court. JUDGE JUDGE Lahore, the 3rd of January, 2022 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Maqbool Baqar Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.275 of 2021 (Against the judgment dated 22.02.2021 passed by the Lahore High Court, Multan Bench in Crl. Misc. No.1185-CB/2021) Muhammad Ismail …Petitioner(s) Versus The State & others …Respondent(s) For the Petitioner(s): Mr. Ejaz Ahmed Toor, ASC For the Respondent(s): Mr. Muhammad Bilal Butt, ASC along with accused For the State: Mirza Abid Majeed, Deputy Prosecutor General with Hammad, DSP and M. Hanif, I.O. Date of hearing: 17.11.2021. ORDER Qazi Muhammad Amin Ahmed, J.- Having left home the preceding night, Muhammad Waseem, 24/25, was spotted dead with multiple gun wounds within the precincts of Police Station Saddar Multan at 8:40 a.m. on 26.10.2019; crime report lodged by his father Muhammad Ismail sans the names of culprits as well as motive, suspected for the crime, however, through a supplementary statement he nominated besides the respondents Muhammad Attique Khan, Muhammad Ismail and Muhammad Zain-ul-Abideen as the suspects. Deceased’s carnal designs on Muhammad Attique’s son Haris are alleged to have cost him his life. As the investigation progressed, the Investigation Officer recorded statements of as many as four witnesses, pointing their fingers upon the respondents as well as Muhammad Attique; latter assigned the fatal shots. The respondents, statedly, made separate confessions before the witnesses wherein they admitted, not only to have conspired the crime with the principal accused but also flanked him during his fatal encounter with the deceased. A learned Additional Sessions Judge at Multan, however, admitted both the respondents to anticipatory bail vide order dated 10.12.2020, upheld by Criminal Petition No. 275 of 2021 2 a learned Judge-in-Chamber vide impugned order dated 22.2.2021, being assailed on the grounds that in the face of overwhelming evidence, unambiguously pointed upon the culpability of the respondents being comrades in the crime, there was no occasion for the learned Addl. Sessions Judge to extend them judicial protection merely for the reason that some other co-accused were granted post arrest bail by the High Court; the bottom line is that protection of pre-arrest bail is an entirely different regime, governed by considerations hardly applicable at post arrest stage; he has been joined in his opposition by the learned Law Officer. Learned counsel for the respondents, contrarily, defended the impugned order on the grounds that the respondents were not named in the crime report and their implication on the basis of a belatedly recorded supplementary statement is structured on a misplaced and misconceived suspicion; it is next argued that the respondents had no earthly reason to tread on red coals particularly when there existed no incriminatory evidence that could even obliquely connect them with the crime and as such the entire edifice appears to have been raised on foundations tainted with mala fide on the basis of statements, stage- managed subsequent to the incident and, thus, judicial protection extended to them is an arrangement, most conscionable in circumstances. 2. Heard. Record perused. 3. What weighed with the learned Additional Sessions Judge to grant extraordinary relief of pre-arrest bail to the respondents are certain observations by a learned Judge-in-Chamber of the Lahore High Court Multan Bench whereby two from amongst the accused were released on post arrest bail and it is in this backdrop he seemingly opted to suspend the usual course of law by invoking principle of requirement of consistency. It goes without saying that an accused of a cognizable offence scheduled as non-bailable can only claim protection of anticipatory bail by reasonably demonstrating his intended arrest being contemplated by considerations mala fide and sinister, designed to abuse process of law. It is a judicial protection rooted into equity; whereas an accused in custody after completion of investigation can be released on bail on the touchstone of consideration statutorily enumerated in subsection 2 of section 497 of the Code of Criminal Procedure, 1898, these two have no parallels. For effective administration of criminal justice, it is most important that prosecution is allowed a meaningful opportunity to carry Criminal Petition No. 275 of 2021 3 out and conclude the investigative process as apart from readily available evidence in the aftermaths of an incident it may lay hands upon incriminatory material that may possibly become available pursuant to disclosures in custody; this has been grievously ignored. Similarly, an anticipated failure of prosecution, no matter how loudly clamoured, cannot be received to set its case at naught even before it is taken off. Failure by the learned Additional Sessions Judge as well as learned Judge-in-Chamber of the Lahore High Court to give due weight to the statements of the witnesses and misconceived invocation of principle of consistency fails to commend our approval. It has been held in the case of Mst. Qudrat Bibi (2003 SCMR 68) “…….we are of the opinion that at a stage of admitting to an accused on the bail the Court should not stamp the prosecution witnesses who have recorded their statements promptly to be false witnesses….”. Similarly, pre-arrest bail is not to be used as a substitute or as an alternative for post arrest bail. See Rana Muhammad Arshad Vs. Muhammad Rafique and another (PLD 2009 S.C. 427). Admission to pre-arrest bail is a huge concession to an accused, required to be arrested in a cognizable offence as it exempts him from remission into custody, irreversibly foreclosing avenues for the prosecution to possibly secure further evidence, consequent upon disclosures, therefore, such a relief must only be extended in the face of considerations proportionately compelling; these are conspicuously lacking; it is most imperative to keep the scales in balance. Petition is converted into appeal and allowed. Consequently, order dated 10.12.2020 passed by the Additional Sessions Judge Multan and upheld by a learned Judge-in-Chamber of the Lahore High Court at Multan Bench on 22.02.2021 are set aside; pre-arrest bail granted to the respondents is cancelled. Judge Judge Islamabad, the 17th November, 2021 Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Umar Ata Bandial Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.277 of 2020 (Against order dated 18.02.2020 passed by the Islamabad High Court Islamabad in Crl. Misc. No. 60-B/2020) Dr. Atif Muhammad Khan …Petitioner(s) Versus The State through D.A.G. & another …Respondent(s) For the Petitioner(s): Mr. Sajeel Sheryar Swati, ASC Syed Rifaqat Hussain Shah, AOR For the State: Mr. Aamir-ur-Rehman, Additional Attorney General for Pakistan along with Qaiser Masood Addl. Director FIA, M. Salman Deputy Director FIA Maqsood Ahmed, Forensic Officer, Humaira Aslam SI, FIA For the Complainant: Mr. M. Junaid Akhtar, ASC Date of hearing: 16.04.2020. ORDER Qazi Muhammad Amin Ahmed, J.- Behind bars since 01.01.2020, Dr. Atif Mehmood Khan, petitioner, seeks admission to bail; member of academia, he is blamed by his former wife Ms. Fozia Anwar for disseminating her explicit photographs through a WhatsApp profile, transmitted from a cell phone number issued by a United Kingdome Service Provider; the pictures accompanied threatening/ abusive messages, circulated among the family members with an obvious motive to humiliate and embarrass the lady. During investigation, petitioner led to the recovery of a number of articles, secured vide inventory dated 02.01.2020 that included a mobile phone handset along with four SIMs (Subscriber Identity Modules) as well as a Criminal Petition No.277 of 2020 2 memory card with different IMEI numbers, dispatched to National Response Center for Cyber Crimes (NR3C), Federation Investigation Agency Islamabad for digital forensic examination. As per report dated 31.02.2020, paraphernalia recovered during the investigation did not indicate to have generated the impugned material, on the basis whereof, the Investigating Officer, vide case diary No.10 dated 12.2.2020, exonerated the petitioner and accordingly placed him in Column 2 of the report under Section 173 of the Code of Criminal Procedure 1898. 2. Heard. Record perused. 3. Bad blood between the erstwhile spouses though a possible motive to target the complainant, nonetheless, requires independent evidence to prima facie frame the petitioner with the charge; forensic evidence, the only tool to sustain the charge, for the present, is faltering as the findings recorded by the Federal Investigation Agency are in the negative. Ch. Aamir-ur-Rehman, learned Additional Attorney General for Pakistan has very fairly conceded the point. Argument by the learned counsel for the complainant that the petitioner alone had an axe to grind, a circumstance by itself sufficient to drive home the charge, is beside the mark. Petitioner’s culpability, after prosecution’s failure on forensic side, can best be settled after recording of evidence and, thus, his incarceration till conclusion thereof, would be inexpedient. A case for grant of bail stands made out. Criminal Petition is converted into appeal and allowed; the petitioner shall be released on bail upon furnishing a bond in the sum of Rs.500,000/- with one surety in the like amount to the satisfaction of the learned trial Court/Duty Magistrate. Judge Judge Islamabad, the 16th April, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Maqbool Baqar Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.280 of 2021 (Against the judgment dated 18.02.2021 passed by the Peshawar High Court Bannu Bench in B.A. No.49-B/2021) Muhammad Aurangzeb …Petitioner(s) Versus Karim Khan alias Abdul Karim Khan and others …Respondent(s) For the Petitioner(s): Mr. Rahman Ullah, ASC Syed Rifaqat Hussain Shah, AOR For the State: Ms. Aisha Tasneem, ASC For the Respondent(s): Malik Nouman Khalid, ASC with respondent No.2 Date of Hearing: 02.12.2021. ORDER Qazi Muhammad Amin Ahmed, J.- Karim Khan alias Abdul Karim Khan and Sabir Jan along with co-accused were arrayed as accused by the petitioner for committing Qatl-i-Amd of his brother Nematullah at 4:10 p.m. on 17.10.2020 within the precincts of Police Station Lakki Marwat; armed with Kalashnikovs, the assailants targeted the deceased in the backdrop of an ongoing blood feud. Autopsy report confirmed receipt of three entry wounds on different parts of body with corresponding exit. 46 casings of . 7.62 mm secured from the spot were forensically opined to have been fired from different weapons. The Investigating Officer held the respondents as participants in the crime; their request for bail was declined by the Court of Sessions, however, a learned Judge-in-Chamber of the Peshawar High Court Bannu Bench vide impugned order dated 18.02.2021 allowed them bail on the ground premised as under:- “There is no denial to the fact that the deceased lost his life owing to the firearm injuries, which led to a charge against Criminal Petition No.280 of 2021 2 the petitioners and two others. Record tells that all the petitioners i.e. four in number are real brothers and that the complainant stated of having previous blood feud. True that the petitioners are directly charged but equally true that two real brothers from one and the same family have been charged for murder of the deceased and the deceased received four firearm injuries on his body where two of the entry wounds are caused on the vital part of his body, whereas two on non-vital parts. This court is to see as to whether it was the doing of one or more than one person; and that despite blood feud enmity the complainant escaped unhurt when he too was at mercy of the assailants. True that while seized of bail matter the court is to tentatively assess the material brought before it and deeper appreciation of evidence is not warranted, but equally true that bail applications cannot be heard and decided in vacuum.” Vires of the above findings have been assailed as being factually incorrect as well as self-destructive, as according to the learned counsel, there existed reasonable grounds within the contemplation of section 497 of the Code of Criminal Procedure, 1898 to prima facie frame the respondents with the crime complained, punishable with death, thus, in the absence of any consideration calling for further probe, there was no occasion for the High Court to release them on bail for reasons imaginatively articulated. The learned counsel for the respondents defended the impugned order being well within the discretion of the Court. It is next argued that the courts are slow in the absence of strong and compelling reasons to recall freedom once granted by a competent tribunal. 2. Heard. Record perused. 3. No doubt, grant of bail is a discretionary relief, however, it is most essential that exercise of discretion is structured upon sound judicial principles, in conformity with statutory parameters. Prima facie, prosecution evidence comprising statements of the complainant, eye- witnesses and autopsy report, squarely constitute “reasonable grounds” insurmountably barricading respondents’ admission to bail in the absence of any consideration calling for further probe. We have also noted different parentage of the accused mentioned in the crime report to contradict the theory of all brothers in the dock. A conclusion based upon a wavering analysis with reference to judicial opinions hardly relevant in circumstances fails to commend our approval. Criminal Petition No.280 of 2021 3 Grant of bail in disregard to the settled principles of law or on a premise factually incorrect, by itself, presents a conscionable justification to recall the concession; it does not require hypothetical or euphemistic strong grounds as an undue concession grievously militates against the fundamental principle of equal treatment to the people placed in identical situations with expectations consistent in their judicial pursuits. Petition is converted into appeal and allowed; impugned order dated 18.02.2021 is set aside; bail granted thereunder is cancelled. Respondents be taken into custody so as to confront their indictment before the trial Court. Judge Judge Judge Islamabad, the 2nd December, 2021 Azmat/-

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CRIMINAL PETITION NO. 287 OF 2022 (On appeal against the order dated 22.02.2022 passed by the Lahore High Court, Rawalpindi Bench in Crl. Misc. No. 322-B/2022) Malik Muhammad Tahir … Petitioner VERSUS The State and another … Respondents For the Petitioner: Mr. Talat Mehmood Zaidi, ASC For the Respondent (2): Malik Jawwad Khalid, ASC For the State: Mr. Muhammad Jaffer, Addl. P.G. Punjab Ms. Kainat Azhar, ASP Mr. Muhammad Asif, I.O. Date of Hearing: 22.09.2022 ORDER SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through the instant petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed the order dated 22.02.2022 passed by the learned Single Judge of the Lahore High Court, Rawalpindi Bench with a prayer to grant post-arrest bail in case registered vide FIR No. 1314 dated 03.09.2021 under Sections 420/468/471/406/489-F PPC at Police Station Airport, Rawalpindi, in the interest of safe administration of criminal justice. 2. The prosecution story as unveiled in the crime report is that the complainant, an overseas Pakistani, wanted to purchase agricultural land. The petitioner offered him his land and ultimately an agreement to sell was executed between the parties. The complainant paid an amount of Rs. 4.40 million through cheque and bank draft to the petitioner. The remaining price of the land was to be paid through two residential and one commercial plot situated in Behria Enclave, Islamabad, which were in the name of the complainant. The complainant got transferred both the residential plots in the name of the persons suggested by the petitioner. At the time of the said transfer, the petitioner presented title documents of the agricultural land but Criminal Petition No. 287/2022 2 eventually took them back. After the complainant got transferred his plots, the petitioner started using delaying tactics and did not transfer the land in the name of the complainant. Subsequently, it was disclosed that the agricultural land is not in the name of the petitioner. The cheque amounting to Rs.2.60 million issued by the petitioner towards transfer fee was also dishonoured due to insufficient funds. 3. At the very outset, it has been contended by the learned counsel for the petitioner that the petitioner has been falsely roped in this case against the actual facts and circumstances. Contends that the whole prosecution case is based on surmises and conjectures. Contends that the offence does not fall within the prohibitory clause, therefore, the petitioner is entitled for the concession of bail. Contends that the impugned order is based on misreading and non-reading of evidence and the learned High Court misinterpreted the law on the subject. Lastly contends that the accusation against the petitioner requires further probe, as such, the case against him squarely falls within the purview of Section 497(2) Cr.P.C. entitling for further inquiry into his guilt. 4. On the other hand, learned Law Officer assisted by learned counsel for the complainant has defended the impugned order declining bail to the petitioner. It has been contended that the petitioner has deprived the complainant not only of huge amount but also of two valuable residential plots, therefore, he does not deserve any leniency from this Court. 5. We have heard learned counsel for the parties at some length and have perused the available record. Precisely stated the allegation against the petitioner is that he entered into an agreement to sell his immovable agricultural land with the complainant. The complainant not only paid an amount of Rs.4.40 million to him but as per the agreed terms, he got transferred two residential plots situated in Behria Enclave, Islamabad, in the name of the persons suggested by the petitioner. However, the petitioner did not mutate the land in favour of the complainant on account of deficiency in title and issued him a cheque amounting to Rs.2.60 million towards transfer fee but the same could not be Criminal Petition No. 287/2022 3 encashed and got dishonoured. It has come on the record that during investigation, it was found that the petitioner did not have any land, which could be transferred in the name of the complainant. It also transpired that the petitioner sold two residential plots of the complainant to Masood and Junaid and received the sale consideration. The evidence also reflects that the amount of Rs.4.40 million was received by the petitioner in his bank account. On the previous dates of hearing, the petitioner showed his willingness to refund the money that he owes to the complainant. Learned counsel for the petitioner was directed to seek instructions of the petitioner as to how and when he would refund the money. Ms. Kainat Azhar, ASP, was also directed to facilitate the settlement. We have been informed that although the petitioner had promised that as a part payment he would return Rs.2.0/- million to the complainant but now he is not inclined to return back the money to the complainant. Although the offences under Section 406/468/489-F PPC do not fall within the prohibitory clause of Section 497 Cr.P.C but this principle is not absolute, rather it depends upon the facts and circumstances of each case. Admittedly the complainant is an overseas Pakistani national, who has been deprived of his wealth, hence, it casts a heavy duty upon the courts to provide him safeguard within the limits of law. There is sufficient material oral & documentary available on the record to establish that the case of the petitioner does not fall within the purview of Section 497(2) Cr.P.C. entitling for further inquiry into his guilt. The learned High Court has passed a well reasoned order to which no exception can be taken. 6. For what has been discussed above, this petition having no merit is accordingly dismissed and leave to appeal is refused. JUDGE JUDGE Islamabad, the 22nd of September, 2022 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mushir Alam Mr. Justice Sardar Tariq Masood Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition Nos.29-Q & 56-Q of 2015 and Jail Petition No.306/2015 and Cr. P. 30-Q & J.P. No.305 of 2015 (Against judgment dated 25.05.2015 passed by High Court of Balochistan, Quetta passed in Cr. Appeal Nos.368, 370 & 371/2013) Abdul Haq & Muhammad Yousaf (in Cr.P.No.29-Q/2015) Abdul Ghani (in Cr.P.No.56-Q/2015) Wali Muhammad (in J.P. No.306/2015) Abdul Haq (in Cr. P. No.30-Q/2015) Wali Muhammad (in J.P. No.305/2015) …Petitioner(s) Versus The State (in all cases) …Respondent(s) For the Petitioner(s): Mr. Ahsan Rafique Rana, ASC Mr. Mehmood A. Sheikh, AOR (in Cr.P.No.29-Q & 30-Q/2015) Nemo. (in Cr.P.No.56-Q/2015) Mr. Abdul Rauf Lahri, ASC (in J.P. Nos.305 & 305/2015) For the State Mr. Baqar Shah, Addl. Prosecutor General Balochistan Date of hearing: 07.11.2019 JUDGMENT Qazi Muhammad Amin Ahmed, J. Criminal Petition No.29-Q & Jail Petition No.306/2015: Petitioners were indicted by the learned Special Judge Anti-Terrorism Court-I, Quetta for abduction of Abdul Rahim (PW-3) to extort ransom on 1.9.2012 from the precincts of Police Station Satellite Town Quetta; the Criminal Petition Nos.29-Q & 56-Q of 2015 and Jail Petition No.306/2015 and Cr. P. 30-Q & J.P. No.305 of 2015 2 incident was reported by abductee’s brother Muhammad Ismail (PW-1) against the unknown culprits. The abductee surfaced on his own after 2/3 days of the occurrence, he implicated the petitioners for the first time on 8-10-2012 alongside four unknown co-accused, he blamed the petitioners to have abducted him for the ransom; according to him, he was enchained at an unspecified place and let off after the captors snatched Rs.20,000/- along with a cell phone handset and some revenue papers. Pursuant to the disclosure, the petitioners were arrested on different dates; nothing incriminatory was recovered during the course of investigation. Till date prosecution is clueless about the four unknown accomplices as well as the venue where the abductee was held under restraint. Petitioners alongside the demised Abdul Ghani co-accused claimed trial wherein the prosecution produced as many as 12 witnesses, Abdul Rahim (PW-3) being most prominent amongst them; the learned trial Judge vide judgment dated 11.12.2013 returned a guilty verdict; convicted under Section 365-A of the Pakistan Penal Code, 1860 read with section 6(2)(e) of the Anti Terrorism Act, 1997, the accused were sentenced to imprisonment for life along with fine; their appeals failed in the High Court vide impugned judgment dated 25.5.2015, vires whereof, are being assailed, primarily on the admitted previous acquaintance as well as animosity between the petitioners and the abductee; inherent improbability of the story is another argument addressed at the bar. 2. Heard. Record perused. 3. Abdul Rahim (PW-3), returned home on his own though with some marks of violence on his wrist and ankle joints, noted when medically examined as late as on 7-10-2012; in his statement under section 161 Cr.P.C. recorded on the following day, he disclosed to the Investigating Officer that he was let off 3/4 days before his return; in his statement before a Magistrate on 9-10-2012, he is conspicuous by his omission on the date of his return. In this background, prosecution’s reliance on the injuries endured by the abductee, allegedly during his captivity fades into insignificance, particularly in the absence of duration thereof in the medico legal certificate. Complainant (PW-1) in the witness-box did not point his finger on the petitioners; being a real brother of the abductee, he was expected to bring on record the information subsequently shared with him by his brother. The abductee massively improved upon his previous Criminal Petition Nos.29-Q & 56-Q of 2015 and Jail Petition No.306/2015 and Cr. P. 30-Q & J.P. No.305 of 2015 3 statements; he was duly confronted with his deviations; he also admitted his acquaintance with Abdul Haq petitioner, his co-villager while evasively avoiding a query regarding pendency of different civil and criminal cases instituted by Abdul Ghani petitioner against him as well as his brother. Similarly, in his examination-in-chief, the abductee did not name Muhammad Yousaf petitioner as being one of the culprits; while denying litigation between the two families, he however, admitted that both the petitioners, real brothers inter se, lived in the same neighbourhood. In this backdrop, no importance can be attached to the identification parade, conducted under magisterial supervision. In the totality of circumstances, the prosecution case is not free from doubt, doubts deducible from stated prosecution positions, otherwise inherently improbable. Petitioners’ convictions and life time sentences consequent thereupon cannot be sustained merely on the basis of some superficial healed wounds, genesis whereof is also shrouded in the mystery of time and space. Petitions are converted into appeals; allowed; impugned judgment is set aside. The petitioners/appellants are acquitted of the charge; they shall be released forthwith, if not required in any other case. Criminal Petition No.56-Q of 2015: With the death of Abdul Ghani petitioner, his petition stands fructified, leaving in field no adverse consequences to the detriment of his legal heirs. Dismissed accordingly. Criminal Petition 30-Q & Jail Petition No.305 of 2015: The petitions arisen out of a different criminal case, clubbed inadvertently with Cr. P. No.29-Q & J.P. No.306 of 2015 are de-clubbed for the re-list. Judge Judge Judge Islamabad 7th November, 2019 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mushir Alam Mr. Justice Qazi Muhammad Amin Ahmed Mr. Justice Amin-ud-Din Khan Criminal Petition No.290 of 2020 (Against the judgment dated 28.2.2020 of the Peshawar High Court, Peshawar passed in Cr. Revision No.200-P of 2019) Muhammad Uzair Jamal …Petitioner(s) Versus The State and another Respondent(s) For the Petitioner(s): Syed Asghar Hussain Shah Sabzwari Mr. Mehmood A. Sheikh, AOR For the State: Mr. Arshad Hussain Yousafzai, ASC Date of hearing: 22.07.2020. ORDER Qai Muhammad Amin Ahmed, J.- Ms. Gulalay, 27/28, a student of M.Phil, was shot dead inside the safety of her home located within the precincts of Police Station Cantt. Nowshera at 3:45 p.m. on 2.2.2019 in a family function, scheduled to fix her marriage date; incident was reported by Ashfaq Ahmed Khan who accused the petitioner for the crime. According to the complainant, the petitioner aspired to marry the deceased, already betrothed and it was in this background that he on the fateful day murdered the young lady within the view of the witnesses; he was subdued by the attendants and produced before the police along with the weapon of offence. Autopsy was conducted same day at 4:40 p.m. and the Medical Officer observed no less than seven entry wounds on different parts of the body. The petitioner was sent to face trial before an Additional Sessions Judge at Nowshera; he moved an application on 8.5.2019, purportedly under section 465 of the Code of Criminal Procedure 1898 wherein he took the following grounds: 2. “That, the accused/petitioner is suffering from different mental ailments from the last so many years. Criminal Petition No.290 of 2020 2 3. That the accused/petitioner has remained patient of various doctors and in this connect, also remained admitted in hospitals. 4. That, the accused/petitioner after remanding to the judicial lock up is lodged in the mental hospital at Peshawar Prison, being dangerous for the life of others and is still there. (Copy of doctor prescription and certificate attached. 5. That the accused/petitioner in such circumstances is unable to defend himself within the parameter of the law during the course of trial.” Pursuant to the above pleas, opinion from the Jail Doctor was solicited vide order dated 27.5.2019 whereupon Senior Medical Officer, Central Prisons Peshawar, furnished the opinion dated 11.06.2019, reproduced below: “It is submitted that the above named accused was shifted from Judicial Lockup Nowshera on 23.2.2019 for Psychiatry treatment. He was admitted in Detain Unit/Psychiatry Wards for observation of Psychiatrist on the same day. He was under the observation of Psychiatrist Dr. Muslim District Specialist Psychiatrist w.e.f. 23.2.2019. He was diagnosed as a case of Depressive illness and advised Tab Prothadine 75 mg one at nigh daily. He was examined by concerned Psychiatrist Dr. Muhammad Tariq on 30.5.2019 with the remarks that the accused may please be shifted back to Nowshera Jail as there is no Court Letter regarding his treatment/Standing Medical Board Report.” The learned Additional Sessions Judge declined the motion vide order dated 6.9.2019, impugned before the Peshawar High Court through a revision petition with no better outcome on 28.2.2020, vires whereof, are being assailed primarily on the ground that the petitioner, undergoing psychiatric trauma, was neither cognizant of the consequences of his act nor he can properly defend himself during the trial on account of ongoing terminality of his mental disorder. It was further prayed that in view of inconclusive nature of earlier report, dismissal of petitioner’s plea is likely to result into miscarriage of justice, warranting interference by this Court. The learned Law Officer faithfully defended the impugned judgment. 2. Heard. Record perused. 3. Certainly it is for the trial Court to settle the question of petitioner’s innocence or guilt on the strength of evidence with all available procedural safeguards, nonetheless, for the limited purpose of examination Criminal Petition No.290 of 2020 3 of his plea raised before us, available material irrefutably suggests homicidal death of a young lady in her prime youth, assassinated inside her parental dwelling with repeated fire shots, seven in number, with an offensive/lethal weapon, on an occasion, most important in her life; this unmistakably evinces a design to eliminate her with no chance of survival; given the occasion/gathering, she being the sole target to the exclusion of others, additionally indicates that the assassin had a preconceived/ premeditated target and a purpose that he flawlessly achieved in a short span of time without any bullet left in the chamber. It would be rather naive to expect such a meticulous execution from a person with frail faculties or capacities without inflicting slightest harm to his own person or anyone else present at the venue; he appears to have done it most craftily. It is also a common ground that the petitioner and the deceased studied together in the same university and, thus, former’s inclination for a bond, a suggested motive for the crime, is a possibility that cannot be viewed as being unrealistic; deceased’s engagement standing in impediment thereto. While the petitioner was certainly entitled to his obsessions and ideals; he had no right to enforce his wish through a method, most violent; he fully well knew that he couldn’t tie knot with a corpse and the sole purpose of the deadly assault appears to be chauvinistically motivated to deny the deceased a life of her own choice, a trend unfortunately not uncommon in our society. 5. In the above backdrop, we have examined entire record annexed with the present petition to evaluate petitioner’s acclaimed mental incapacity. According to Psychiatrist report, the petitioner after having been kept under observation from 23.2.2019 onward, was diagnosed as a case of “Depressive Illness” and prescribed “Tab. Prothadine 75 mg” one at night. Depression is a natural concomitance of the crime and one may hardly find a prisoner facing corporal consequences, possibly the gallows to stay unperturbed; it is a state of mind primarily governed by a variety of factors including fear, regret or remorse; such inevitable disequilibriums are not recognized by law to hold the process of justice in abeyance. An offender can claim immunity from prosecution on the basis of unsound mind if at the time of commission thereof, he by reason of unsoundness of mind, was incapable of knowing the nature of the act or lacked knowledge on account thereof about its being wrong or contrary to law (See section 84 of the Pakistan Penal Code, 1860) and in so asserting he has to be clear and categorical in his claim. By raising such a plea, an offender takes Criminal Petition No.290 of 2020 4 upon himself the responsibility to discharge the onus and in the event of his failure, the Court would draw a contra presumption. It has not been petitioner’s plea in his application dated 8.5.2019 before the learned trial Court. Without taking plea of unsound mind and by referring to some unspecified “different mental ailments” asserted that he was unable to defend himself. For determination of such a claim, an accused may be examined “by the Civil Surgeon of the District or such other medical officer as the Provincial Government directs…..”. Part VIII Chapter XXXIV Special Proceedings recognizes only dangerous or incapacitating lunacy to suspend the trial and take measures provided thereunder. “Depressive Illness” is not a disease or incapacity recognized by law as a justification to deny justice to the victims of crimes or their families nor does it allow digging out of acclaimed incapacity by a Physician of offender’s own choice, other than the designated medical officers. View taken by the learned trial Judge, upheld by the learned High Court, being well within the remit of law, calls for no interference. The above observations, being issue specific, shall not cast their shadow upon the outcome of the trial, to be essentially settled under Due Process of Law on the strength of evidence alone. Petition fails. Leave declined. Judge Judge Judge Islamabad, the 22nd July, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI MR. JUSTICE JAMAL KHAN MANDOKHAIL CRIMINAL PETITION NO. 294-L OF 2023 (On appeal against the order dated 01.03.2023 passed by the Lahore High Court, Lahore in Crl. Misc. No. 80579-B/2022) Abdul Rasheed … Petitioner Versus The State and another …Respondent(s) For the Petitioner: Mr. Muhammad Zubair Khalid, ASC a/w petitioner in person (Via video link from Lahore) For the Complainant: Mr. Aftab Alam Yasir, ASC Syed Rifaqat Hussain Shah, AOR For the State: Mirza Abid Majeed, DPG Mr. Murtaza Bilal, SI Date of Hearing: 24.08.2023 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through the instant petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed the order dated 01.03.2023 passed by the learned Lahore High Court, Lahore, with a prayer to grant pre-arrest bail in case registered vide FIR No. 3420/2022 dated 21.10.2022 under Section 489-F PPC at Police Station Shadbagh, District Lahore, in the interest of safe administration of criminal justice. 2. Briefly stated the allegation against the petitioner is that he bought iron worth Rs.47,00,000/- from the complainant for which he gave two cheques amounting to Rs.500,000/- each to the complainant. However, when the cheques were presented to the Bank, they were dishonoured. 3. At the very outset, it has been argued by learned counsel for the petitioner that the petitioner has been falsely roped in this case against the Criminal Petition No. 294-L/2023 -: 2 :- actual facts and circumstances. Contends that the petitioner and the complainant were running a joint business and the cheques were not issued towards repayment of loan or fulfillment of an obligation. Contends that maximum punishment provided under the statute for the offence under Section 489-F PPC is three years and the same does not fall within the prohibitory clause of Section 497 Cr.P.C., therefore, the petitioner deserves to be granted bail. 4. On the other hand, learned Law Officer assisted by learned counsel for the complainant has defended the impugned order declining bail to the petitioner. It has been contended that the petitioner has deprived the complainant of a huge amount and he remained absconder for 02 years, therefore, he does not deserve any leniency from this Court. 5. We have heard learned counsel for the parties at some length and have perused the available record with their assistance. 6. As per the contents of the crime report, the complainant was an iron merchant. The petitioner purchased iron worth Rs.47,00,000/- from the complainant and gave two cheques amounting to Rs.500,000/- each to him. However, when the cheques were presented to the Bank, they were dishonoured. However, it is the stance of the petitioner that the petitioner and the complainant had started a business and the cheques in question were given as a guarantee and the same were not issued towards repayment of loan or fulfillment of an obligation within the meaning of Section 489-F PPC. The petitioner has placed on record a copy of the suit for rendition of accounts filed by him against the defendant before the Civil Court. A bare perusal of the same shows that the parties were probably running a business and the cheques were given as a surety and the same were not meant for enacashment. We have noted that the cheques in question are of the year 2019 and according to the crime report the same were dishnoured in the year 2019. If that be so, we are unable to understand as to why the complainant kept quite for three years and did not lodge the FIR on time. This prima facie supports the stance taken by the petitioner. Even otherwise, even if the complainant wants to recover his money, Section 489-F of PPC is not a Criminal Petition No. 294-L/2023 -: 3 :- provision which is intended by the Legislature to be used for recovery of an alleged amount. In view of the above, the question whether the cheques were issued towards repayment of loan or fulfillment of an obligation within the meaning of Section 489-F PPC is a question, which would be resolved by the learned Trial Court after recording of evidence. The maximum punishment provided under the statute for the offence under Section 489-F PPC is three years and the same does not fall within the prohibitory clause of Section 497 Cr.P.C. It is settled law that grant of bail in the offences not falling within the prohibitory clause is a rule and refusal is an exception. This Court in a number of cases has held that liberty of a person is a precious right which cannot be taken away without exceptional foundations. We have been informed that all the material is in documentary shape; the investigation is complete and the petitioner is no more required for further investigation. So far as the argument of the learned Law Officer about the absconsion of the petitioner is concerned, it is settled law that absconsion cannot be viewed as a proof for the offence and the same alone cannot be made a ground to discard the relief sought for. Reliance is placed on Rasool Muhammad Vs. Asal Muhammad (PLJ 1995 SC 477) & Muhammad Tasaweer Vs. Hafiz Zulkarnain (PLD 2009 SC 53). Taking into consideration all the facts and circumstances stated above, we are of the view that the petitioner has made out a prima facie case for grant of pre-arrest bail. 7. For what has been discussed above, we convert this petition into appeal, allow it, set aside the impugned order and confirm the ad interim pre- arrest bail granted to the petitioner by this Court vide order dated 26.07.2023. JUDGE JUDGE Islamabad, the 24th of August, 2023 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Gulzar Ahmed, HCJ Mr. Justice Umar Ata Bandial Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Sajjad Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.299 of 2020 (Against the order dated 20.3.2020 passed by the Islamabad High Court Islamabad in Cr. Misc. No.214/2020) Raja Muhammad Nadeem …Petitioner(s) Versus The State and another …Respondent(s) For the Petitioner: Syed Nayyab Hassan Gardezi, ASC Syed Rifaqat Hussain Shah, AOR along with petitioner For the Federation: Mr. Khalid Javed Khan, Attorney General for Pakistan Mr. Sohail Mehmood, Deputy Attorney General Ms. Shireen M. Mazari, Minister for Human Rights Dr. Safi Muhammad Mali, D.G. Health M/o N.H.S. Saeed Ullah Khan Niazi, Joint Secretary (Admn.) Asif Suhail, Director Legal Khalid Mehmood, Deputy Secretary, Ministry of Interior Nisar Ahmed, Section Officer For Islamabad Capital Mr. Niaz Ullah Khan Niazi, Advocate Territory General Mr. Amer Ali Ahmed, Chief Commissioner Mr. Hamza Shafqaat, Deputy Commissioner Waseem Ahmed Khan, Assistant Deputy Commissioner Waqar ud Din Syed, D.I.G. (Operations) Azhar Hussain Shah, DSP (Legal) For Government Mr. Salman Talibudin, Advocate General of Sindh (via video link): Mr. Sibtain Mehmood, Addl.A.G. Dr. Fayyaz Ul Hassan Shah, PG Mr. Muhammad Usman Chachar, ACS (Home) Mr. Nusrat Mengan, I.G (Prisons) Mr. Zahid Abbasi, Secretary Health Criminal Petition No.299 of 2020 2 For Government Mr. Shan Gul, Advocate General of Punjab: Ch. Faisal Fareed Additional Advocate General Mr. Ahmed Raza Gillani, Additional Prosecutor General Mirza Shahid Saleem Baig, I.G. (Prisons) Malik Shaukat Feroz, D.I.G. (Prisons), Rawalpindi Region Rana Zeeshan, Additional Secretary (Prisons) Muhammad Zaman, D.S.P. (Prisons) Saqib Nazir, Superintendent Adyala Jail Tahir Siddique, Assistant Superintendent Adyala Jail Amir Bashir, Assistant Superintendent Adyala Jail Majid Iqbal, Additional Secretary Punjab Iqbal Hussain, Special Secretary Home Punjab Adnan Yousaf, Sr. Law Officer Mr. Arif Kamal Noor, Prosecutor General Punjab (via video link from Lahore Branch Registry) For Government of Mr. Shumail Butt, Advocate General K.P.K. (via video link from Peshawar Branch Registry) Khuda Bakhsh, Special Secretary Health Dr. Shaheen Afridi, Additional Director General, Health Masood ur Rehman, Inspector General (Prisons) Ikram Ullah Khan, Home Secretary (all appeared via video link from Peshawar Branch Registry) For Government of Mr. Arbab Muhammad Tahir, Balochistan Advocate General (via video link from Quetta Branch Registry) Mr. Ayaz Khan Swati, Additional Advocate General Punjab Capt. (Retd.)Zafar Tahir Abbasi, Special Secretary Health Malik Yousaf, Inspector General (Prisons) Hameed Ullah Pechi, A.I.G. Prisons Niamat Ullah Khan Battazai, Prosecutor General Mushtaq Qazi, Additional Prosecutor General Abdul Lateef Kakar, Additional Prosecutor General (all appeared via video link from Quetta Branch Registry) Syed Baqar Shah, State Counsel. For Government Mr. Muhammad Iqbal, Advocate General of Gilgit-Baltistan Capt. (R) Ali Asghar, Inspector General (Prisons) Criminal Petition No.299 of 2020 3 For N.A.B. Mr. Muhammad Hassan Akbar, Additional Prosecutor General For A.N.F. Raja Inaam Amin Minhas, Special Prosecutor Amicus Curiae Sh. Zameer Hussain, ASC From S.C.B.A.P. Syed Qalb-e-Hassan, ASC/President From P.B.C. Mr. Zulfiqar Abbas Naqvi, ASC/Member Mr. Muhammad Akram Khaksar, V.C. From P.H.C.B.A. Mr. Abdul Latif Afridi, ASC/President In C.M.A. 399/2020 Mr. Amjad Raza Bhatti, ASC In C.M.A. 406/2020 In person In C.M.A. 414/2020 Mr. Talat Mehmood Zaidi, ASC In C.M.A. 415/2020 Mr. Hashmat Ali Habib, ASC In C.M.A. 417/2020 Khawaja Haris Ahmed, Sr. ASC Mr. Munawar Iqbal Duggal, ASC Date of hearing: 07.04.2020. ORDER Qazi Muhammad Amin Ahmed, J.- A severe/acute respiratory syndrome is modern day reminder of past calamities, endured by the mankind; identified as Corona Virus disease 2019 (Covid-19), erupted in December 2019 in the Chinese City of Wohan, Metropolis of Hubai Province; it took humanity by surprise across the globe through human movement with no available treatment; the World Health Organization swiftly declared the disease as “Pandemic”; highly infectious, it attacks respiratory system with fallouts on vital organs; inbuilt immune system is the only defence against the disease with toll of the vulnerable, even in countries equipped with best health care system has been phenomenally high; no respite is within sight; isolation and dispersions of individuals are the suggested defences. It is in this backdrop that various High Courts in the country, Islamabad High Court being on the top, passed omnibus orders for the release of accused/convicts, lodged in different prisons, an issue taken up by the Court in the captioned petition filed by Raja Muhammad Nadeem, as “Pro bono Publico”. 2. Islamabad High Court Islamabad, assuming jurisdiction in Crl. Misc. No.214/2020 titled as The State Vs. District Administration, vide impugned order dated 20.3.2020 issued the following directions:- a) The under trial prisoners alleged to have committed offences falling within the ambit of the non-prohibitory clause are admitted to bail, subject to furnishing such surety or security as may be deemed appropriate by an Criminal Petition No.299 of 2020 4 officer authorized in this regard by the Deputy Commissioner, Islamabad Capital Territory. The latter in consultation with the concerned incharge of Police Station shall ensure that the release on bail will not pose threat to public safety. They will endeavor to facilitate release of prisoners. It is clarified that this order is confined to those prisoners who’s cases are pending before courts and related to police stations under jurisdiction of the Islamabad High Court. It is further clarified that this order shall also cover those cases in which bail has been refused because the declaration of emergency and the prevention of outbreak of corona virus is definitely a fresh ground. b) Before releasing a prisoner, proper screening shall be conducted by authorized officials nominated by the Ministry of National Health Services and Coordination, Government of Pakistan or the Director General (Health), Government of Pakistan, as the case may be. The officials shall also ensure screening of fresh admittance. c) The learned District and Sessions Judge (West), Islamabad shall nominate learned Judicial Officers to facilitate and guide the Deputy Commissioner in processing the cases pursuant to this order. d) Since time is of essence, therefore, this Court expects that the exercise pursuant to this order shall be completed at the earliest, preferably before 24-03-2020 and report submitted to the Registrar of this Court e) The Inspector General of Police and the Deputy Commissioner, Islamabad Capital Territory shall ensure that unnecessary arrests are not made by the Investigating Officers having regard to the law laid down by the august Supreme Court in the cases titled ‘Muhammad Bashir v. Station House officer, Okara Cantt and others’ (PLD 2007 SC 530) and ‘Mst. Sughran Bibi v. The State’ (PLD 2018 SC 595). f) The Deputy Commissioner, Islamabad Capital Territory shall identify such prisoners who are eligible to be considered for release under the Prison Rules, the Probation of Offenders Ordinance, 1960 and section 410(1) of the Cr.P.C. After identifying the eligible prisoners, their respective cases shall be processed under the relevant laws. Pursuant to the above directions, 292 prisoners were released overnight. 3. Release of 519 prisoners in the Province of Sindh has been far more astounding; pursuant to some verbal direction, genesis whereof is a mystery, except the following press release dated 26.3.2020, issued by the Registrar of the High Court of Sindh:- “It is to inform that considering the present scenario of spreading of pandemic Coronavirus, on the direction of Hon’ble Chief Justice, Mr. Justice Ahmed Ali M. Shaikh, 829 UTPs have been released from the jails of Province of Sindh by the District Courts in the cases of lesser punishment.” In pursuance whereof, Sessions Judges of the Province submitted reports regarding release of prisoners on the basis of lists tabulated by the Magistrates same day. 4. Lahore High Court Lahore followed the suit in W.P. No.1648/2020 titled as Bar Association Bahawalpur Vs. Federation of Criminal Petition No.299 of 2020 5 Pakistan & others, albeit cautiously; it issued the following the direction:- g) As regards, the prisoners confined because of non-payment of amounts of fine, diyat or daman, this court has been informed that all possible steps will be taken for fulfillment of their obligations by generating funds either from Bait-ul- Mall or inviting the financial sound persons to come in aid. So far as the persons undergoing civil prisons are concerned, the authorities shall move applications to the concerned courts, under whose orders they were put behind the bars, and those courts will decide whether their earlier order can be reviewed in prevalent unprecedented circumstances, or not; Injunctive order issued by this Court on 30.3.2020 closed the floodgates; none was released either in the Province of Punjab or Khyber Pakhtunkhwa Province. 5. It is argued that there was no occasion for the High Court to direct wholesale release of the prisoners; no petition seeking bail was posted before the Court; no notice was issued either to the State or to the complainant/victim of crimes and above all no jurisdiction vested in the Court to circumvent normal statutory procedures regulating release of accused/convicts on bail; the entire exercise was alien to law and cannot be countenanced on the fears of an impending calamity to the detriment of principle of trichotomy of power enshrined under the Constitution, concluded the learned counsel. Learned Advocate General, ICT, Islamabad though present before the Islamabad High Court during the hearings has, nonetheless, opted to abandon his support for the impugned order. Syed Qalb-e-Hassan, Sr.ASC, President, Supreme Court Bar Association of Pakistan while expressing concerns for the safety of prisoners has urged the Court to be benign upon the prisoners placed in vulnerable groups; he has requested for issuance of a direction for screening of prisoners, particularly the new entrants with a view to arrest spread of the disease. The learned Attorney General for Pakistan, after highlighting various steps taken by the Government to combat the menace, has suggested following recommendations for release of the prisoners:- U.T.P.’s “Accused persons charged for offences under non-prohibitory clauses or under vagrancy law or offences carrying less than three years sentence may be considered for bail subject to the following:- (a) the benefit shall not extend in cases involving abuse/violent acts against children and women. (b) benefit shall first be extended to persons otherwise suffering from ailments or physical or mental disability. (c) benefit shall be extended to UTPs who are 55 years of age or older and then other male UTPs provided there is no history of past convictions. Criminal Petition No.299 of 2020 6 (d) benefit shall be extended to all women/juvenile UTPs. Bail in the above cases may be extended on personal bond. CONVICTED PERSONS The following categories of convicted persons may be considered for release by the Provincial Governments under Section 401 Cr.P.C.: (a) Convicts who have otherwise completed their sentences but remain in jail on account of non-payment of fine/monetary penalty; (b) Women/juvenile convicts who have completed 75% of their sentence and have no history of past convictions; (c) Convicts whose remaining term in jail is six months or less provided offence was not violence against women or children; (d) Women/juvenile who were sentenced to a term of one year or less.” He surveyed the case law to argue that suo motu jurisdiction under the Constitution was not available to the High Court nor it could press into service the provisions of Section 561-A of the Code of Criminal Procedure 1898 to issue the impugned directions. Advocate Generals of all the Provinces joined the Attorney General for Pakistan to support recommendations laid by him before the Court. 6. Heard. 7. Being part of the global village, we are passing through difficult times, the pandemic is taking its toll on all spheres and walks of life; safe custody of prisoners is also facing challenges hitherto unknown, however, methods and means to manage the crises have to be essentially explored within a legal framework of statutory and judicial dispensation that amicably withstood the test of the times, therefore, the vires of the impugned actions is to be essentially examined and adjudged on legal touchstone. Article 175(2) of the Constitution of the Islamic Republic of Pakistan, 1973 provides as under:- “No court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by under any law.” A High Court may possibly release an accused who is arrested or detained without warrant if he appears or brought before the Court, however, he shall not be so released if there appears reasonable grounds for believing that he has been guilty of an offence punishable with death, imprisonment for life or imprisonment for ten years, provided further that he shall not be released unless the prosecution has been given a notice to show cause as to why he should not be so released; what is unmistakably clear, that High Court would exercise Criminal Petition No.299 of 2020 7 such power after notice to the prosecution, that too, on case to case basis having regard to the facts and circumstances of each. This provision of law has an inbuilt mechanism for release of a woman, underage accused or a sick or infirm person. Similarly, there is a mechanism for release of convicts through suspension of execution of their sentences; there is no concept of en bloc omnibus release of prisoners on the basis of declaration of health emergency issued by the World Health Organization in a context altogether different. Advisory by the international organizations to its member states is to be routed through Foreign Office; no such advisory calling upon the member states to empty their prisons has been issued; the impugned order is structured upon a misdirected premises. Argument that our overcrowded prisons could be a breeding ground for the deadly virus is beside the mark. Barring few countries with low crime rates, most prisons in the world are overcrowded. An overcrowded prison, though an inconvenient abode, nonetheless, without a contaminated inmate is a safe place; instead of releasing them all, it is more expedient to screen the each after plugging the new entrants. Jail Rules laid down procedures to deal with epidemics and contiguous diseases, in particular, section 7 of the Prisoners Act, 1900 provides complete mechanism to deal with a situation like one in hand:- “7. Temporary accommodation for prisoners.—Whenever it appears to the (Director of Prisons) that the number of prisoners in any prison is greater than can conveniently or safely be kept therein, and it is not convenient to transfer the excess number to some other prison, Or whenever from the outbreak of epidemic disease within any prison, or for any other reason, it is desirable to provide for the temporary shelter and safe custody of any prisoners, provision shall be made, by such officer and in such manner as the (Provincial Government) may direct, for the shelter and safe custody in temporary prisons of so many of the prisoners as cannot be conveniently or safely kept in the prison.” 8. There was no juridical basis for the High Court to undertake an extensive exercise in a criminal miscellaneous application to issue directions impinging upon the whole spectrum of social life; 292 prisoners involved in different offences is quite a number; their abrupt release is far from being expedient for maintenance of law and order in their neighborhoods; impact could be graver in the Province of Sindh; the High Court certainly lacked jurisdiction to invoke provisions of section 561-A of the Code ibid, object and scope whereof was clearly laid down way back in the year 1945 by the Privy Council in the case of Criminal Petition No.299 of 2020 8 Emperor Vs. Khawaja Nazeer Ahmed (AIR (32) 1945 Privy Council 18); in the said case, High Court’s interference with an investigative process, purportedly in exercise of powers under section 561-A ibid was held as ultra vires, a view subsequently followed by this Court in the cases of Shahnaz Begum v. The Hon’ble Judges of the High Court of Sind and Balochistan and another (PLD 1971 SC 677) and Nazir Ahmed & others Vs. Muhammad Shafi & another (PLD 1980 SC 6). The law is more vividly expounded in the case of Muhammad Ali Vs. Additional I.G. Faisalabad (PLD 2014 SC 753):- “The law is quite settled by now that the jurisdiction of a High Court under section 561-A, Cr.P.C. can be exercised only in respect of orders or proceedings of a court and that the provisions of section 561-A, Cr.P.C. have no application vis-à-vis executive or administrative orders or proceedings of any non-judicial forum or authority.” The plain language of section 561-A Cr.P.C. and the law declared by this Court unambiguously settles that provisions of the said section cannot be invoked to interfere, interrupt or divert procedural courses provided under the law nor it can be applied as a substitute for remedies otherwise available under the Statute. 9. On the higher plane, High Court had no jurisdiction under the Constitution to take up the issue suo motu. Article 199 of the Constitution envisages an aggrieved person; there was none before the Court besides the bar of alternate remedy. It has been held by this Court in the case of Dr. Imran Khattak and another Vs. Mst. Sofia Waqar Khattak, PSO to the Chief Justice and others (2014 SCMR 122), as follows:- “………..…It be noted that no Judge of a High Court or the supreme Court is robed, crowned and sceptered as a King to do whatever suits his whim and caprice. In all eventualities, he is bound to abide by and adhere to the law and the Constitution .………………..It thus follows that the framers of the Constitution of 1962 and those of 1973, inasmuch as it can be gathered from the words used in Article 98 of the former and Article 199 of the latter, never intended to confer Suo Motu jurisdiction on a High Court. Had they intended, they would have conferred it in clear terms as the framers of the Code of Civil Procedure under its provision contained in section 115 have conferred it on the High Court and the District Judge and the frames of the code of Criminal Procedure under its provisions contained in section 439 and 439-A have conferred it on the High Court and the sessions Judge respectively. Article 175(2) of the Constitution leaves no ambiguity by providing that “no Court shall have jurisdiction, save as is or may be conferred on it by the Constitution or by or under any law”. We would be offending the very words used in the Article by reading exercise of Suo Motu jurisdiction in it which cannot be read even if we stretch them to any extreme. It has been settled as far back as in 1916 in the case of Tricomdas Cooverji Bhoja v. Sri Gopingath Jui Thakur” (AIR 1916 Privy Council (sic)), that where the Criminal Petition No.299 of 2020 9 meanings of a provision are clear, unequivocal and incapable of more than one interpretation, even a long and uniform course of interpretation, if any, may be overruled, if it is contrary to its meanings. We have, therefore, no hesitation to hold that the High Court could not exercise Suo Motu jurisdiction under Article 199 of the Constitution of Pakistan. The more so when we have noticed that such jurisdiction has stridently been used even in the matters which are clearly and squarely outside the jurisdiction of a High Court.” With the exclusion of above powers, nothing is left in the field to sustain the impugned directions. Release of prisoners in the Province of Sindh, pursuant to a verbal direction, is even more disquieting. 10. Concomitant fears, aggravated by fast expanding contagion would susceptibly admit perceptional acceptance of the impugned arrangements but the law must not be a casualty even in most extreme or adversarial situations; it must reign supreme and the Government in the given legal framework must strive hard to combat the menace; the Court would not be swayed by popular themes. “Judges rule on the basis of law, not public opinion, and they should be totally indifferent to the pressures of the times” (Warren Earl Burger, 15th Chief Justice of the United States, 1969-1986). Sheikh Zameer Hussain, learned Sr.ASC, amicus curiae, has rendered us valuable assistance; he opined the impugned directions as ultra vires, referred to Selected Writings of Justice HR Khanna, edited by Dr. Lokendra Malik, a portion whereof is reproduced, hereunder:- “The need to foster a climate of discipline and adherence to democratic values cannot be overemphasized if we want to preserve and given long life to civil liberties and human rights. Freedoms guaranteed by Constitution cannot be absolute. They have to be subject to reasonable restrictions for the sake of their own survival.” 11. In the peculiar facts and circumstances of the case, we consider it expedient to convert this petition into one under Article 184 (3) of the Constitution and in exercise of powers vesting in the Court under Article 187 thereof set aside the impugned directions issued by the Islamabad High Court as well as High Court of Sindh; bails granted to the accused/convicts, thereunder, are re-called; similarly, order dated 24.3.2020 passed by the Islamabad High Court in Crl. Misc. No.238/2020 granting bail to the accused charged under various provisions of the Control of Narcotic Substances Act, 1997 is also set aside and bails granted thereunder are re-called. Likewise, order dated 26.3.2020 passed in W.P. No.985 of 2020 by the said Court, granting Criminal Petition No.299 of 2020 10 bails to the accused involved in NAB cases is set aside and bails granted thereunder are re-called. Steps purportedly taken in exercise of powers under Section 401 of the Code ibid by the Government of Sindh as well as Khyber Pakhtunkhwa are also declared as without lawful authority, without jurisdiction and of no legal effects. Prisoners released in pursuance to the above mentioned orders are directed to be taken into custody except those falling within the categories suggested by the learned Attorney General for Pakistan with the concurrence of Advocate Generals of the Provinces. These categories we approve for conforming the considerations laid down by the law discussed above. Observations made hereinabove shall not cast their shadow on pending or future legal pursuits. Larger issue of combating the Pandemic shall remain pending. Chief Justice Judge Judge Judge Judge Islamabad, the 7th April, 2020 Approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.30-P/2012 (Against the judgment dated 22.2.2012 of the Peshawar High Court Peshawar passed in Cr. A.No.351 of 2011) The State through Director ANF …Petitioner(s) Versus Khurshid Khan …Respondent(s) For the Petitioner(s): Mr. Muhammad Tariq Shah, Special Prosecutor ANF For the Respondent(s): N.R. Date of hearing: 28.6.2021 ORDER Qazi Muhammad Amin Ahmed, J.- Tried by a Special Judge at Peshawar, the respondent was convicted under section 9(b) of the Control of Narcotic Substances Act, 1997 vide judgment dated 1.6.2011; he was sentenced to imprisonment for life with a direction to pay fine. According to the prosecution, the respondent was intercepted by an A.N.F. contingent along with 22.550 kg cannabis, wrapped in 19 packs, on board a cab driven by Hameed Ullah, within the precincts of Police Station A.N.F. Peshawar; considered as an unsuspecting companion, the latter was let off. A learned Division Bench of Peshawar High Court acquitted the respondent of the charge vide impugned judgment dated 22.2.2012 by taking into consideration statements of PW-3 and PW-4 as well as plea of innocence supported by cab driver as a witness in his defence. 2. Mr. Muhammad Tariq Shah, learned Special Prosecutor ANF has vehemently argued that in the face of overwhelming evidence there was no occasion for the High Court to let off the respondent, captured red-handed with a huge cache of the contraband; according to him, the High Court, out of context, misconstrued the statements of the prosecution witnesses to hold that they failed to conclusively blame the Criminal Petition No.30-P of 2012 2 accused with the possession of narcotic lying next to him in the rear of car. Reliance upon statement of Hameed Ullah (DW-1), a witness conveniently manageable in circumstances, was hardly sufficient to preponderate over the prosecution evidence, concluded the learned Law Officer. 3. Heard. Record perused. 4. We have gone through the statements of the witnesses to find that one of them, namely, Mushtaq Ahmed, SI (PW-3), while sticking to his case for a while, did provide a space for exit to the respondent by stating that “it is correct that no paper or chit are recovered from the Gatrhi or from the physical search of the accused facing trial to show that the narcotics belonged to the accused”; in the next breath, he, however, volunteered that “the accused himself admitted the ownership of the said Gatrhi”; by that the damage to the prosecution case had irreparably been done; he dealt another blow to the prosecution by stating that “It is correct that the Gatrhi was not lying in the lap of the accused nor he was holding it in his hand at that time”. Fazal-i-Ameen, HC/PW-4 is an equal partner in the treacherous alliance; he stated with audacity “it is correct that no narcotic was recovered from the accused from his body search”. Arrival of Hameed Ullah in the witness-box to support the respondent is last straw on camel’s back inasmuch, admittedly on the wheel, at the time of interception, he categorically denied, on oath, seizure of any contraband, foreclosing all options for the High Court to maintain the conviction. Petition fails. Leave declined. Office shall transmit a copy of this judgment to the Director General A.N.F. to seriously consider dire necessity of setting his house in order. Judge Judge Peshawar, the 28th June, 2021 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL MR. JUSTICE QAZI MUHAMMAD AMIN AHMED Criminal Petition No.30-P of 2014 (Against the judgment dated 20.02.2014 passed by the Peshawar High Court Peshawar in Cr. A. No.78-P/2013) State through A.G. KP, Peshawar …Petitioner Versus Amanat Khan, etc. ..Respondent For the Petitioner(s): Mr. Muhammad Nisar, Addl. A.G. KP For the Respondent(s): N.R. Date of hearing: 06.7.2021 ORDER Qazi Muhammad Amin Ahmed, J-. In broad daylight, Javed Ali Shah, 40, was shot dead within the precincts of Police Station Lahore District Swabi; First Information Report was lodged by his uncle Syed Sardar Shah (PW-3) wherein he blamed the respondent, a previous convict, as the sole culprit, in the backdrop of a previous altercation. Autopsy conducted at 1:05 p.m. confirmed four entry wounds with corresponding exits. Respondent stayed away from the law and was finally spotted in a prison at Takhat Bhai wherefrom he was transposed as an accused in the present case; pursuant to a disclosure, he led to the recovery of a .30 caliber pistol, however, incompatible with the casings secured from the spot. A learned Additional Sessions Judge vide judgment dated 31.01.2013 convicted him under clause (b) of Section 302 of the Pakistan Penal Code, 1860 with the sentence of death alongside a direction to pay compensation, overturned by a Division Bench of Peshawar High Court Peshawar vide impugned judgment dated 20.02.2014, vires whereof, are being assailed on the grounds that in the face of overwhelming evidence furnished by natural witnesses having no axe to grind, there was no occasion for the High Court to acquit the respondent from the charge, squarely structured on ‘proof beyond doubt’. It is next argued that the impugned view of the High Court, seemingly based upon various circumstances, considered by it as suspect, mostly relate to peripheral or investigative flaws, with no bearing upon the Cr.P.30-P/2014 2 preponderance of ocular account furnished by the witnesses who had satisfactorily explained their presence at the spot; they do not seem to have an axe to grind by substituting an innocent with the guilty. It is lastly argued that in the wake of respondent’s absconsion, a negative forensic report did not adversely effect the prosecution’s case nor non-mentioning of specific caliber of the weapon could destroy the intrinsic value of the testimony that successfully withstood the test of cross-examination, particularly having regard to the formidable past, hounding the respondent. Leave is granted to reappraise the entire evidence with a view to secure the ends of justice. Send for the respondent through bailable warrant of arrest in the sum of Rs.200,000/- with one surety in the like amount, returnable to the Assistant Registrar of this Court at Peshawar, to be executed through Station House Officer, within a fortnight. Judge Judge Peshawar, 6th July, 2021 Azmat/- ‘Not approved for reporting’ Cr.P.30-P/2014 3

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmad Malik Mr. Justice Syed Mansoor Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.303-L of 2018 (On appeal from the judgment dated 29.1.2018 passed by the Lahore High Court, Multan Bench passed in Criminal Appeal No.664/2011) Muhammad Shamoon deceased through legal representatives …Petitioner(s) VERSUS The State and another …Respondent(s) For the Petitioner(s) : Ch. Pervaiz Akhtar Gujjar, ASC For Respondent No.2 : Mr. Sikandar Javed, ASC For the State : Ch. M. Mustafa, Deputy Prosecutor General Date of Hearing : 30.05.2019 JUDGMENT Qazi Muhammad Amin Ahmed, J.- Muhammad Shamoon (since dead) was indicted alongside his son Muhammad Saleem for homicide, by a learned Addl. Sessions Judge at Chichawatni; vide judgment dated 25-8-2011, he was returned a guilty verdict for Qatl Shibhi-i-Amd; sentenced under section 316 of the Pakistan Penal Code 1860, henceforth referred to as "the Code", he was directed to pay Diyat in the sum of Rs.10,94,816/- to the legal heirs of the deceased; co-accused Muhammad Saleem was let off with reduction of sentence, already undergone by him. Aggrieved by the judgment, Muhammad Shamoon filed Crl. Appeal No.664/2011; it was admitted for regular hearing on 13-9-2011, subsequent whereto, he was released on bail vide order dated 23-4-2012, however, passed away before final adjudication and when the appeal came up for hearing on 29-1-2018, a learned Division Bench of Lahore High Court disposed it of as having abated in the wake of his death. It is in this backdrop that one of Criminal Appeal No.303-L of 2018 2 the legal heirs of the deceased, namely, Javed Iqbal made motion dated 29-6-2018 for realization of Diyat amount from deceased's estate; pursuant to the process, the estate was attached and this brings deceased's legal heirs to this Court to question the impugned abatement, seeking decision of appeal on merits; Javed Iqbal, respondent has contested the move. 2. Barring whipping provided under special laws, broadly categorized, there are two types of punishments to which offenders are liable under section 53 of the Code; by nature, these are corporal or monetary. Corporal punishments have to be exacted from the person of the offender either through forfeiture of his freedom or even life; these are inseparably linked with his person and wither away with his departure from this World. Death vindicates the charge. Monetary punishment is to be carried out from the assets held by the offender; his death would not absolve the legacy and it is unambiguously evident by the legislative intent manifested in section 386 of the Code of Criminal Procedure, 1898. Diyat is amongst the punishments provided under the Code and according to clause (e) of section 299 thereof, it is compensation payable to the legal heirs of the victim, value whereof, is equivalent to 30,630 grams of Silver to be determined on yearly basis. Section 331 of the Code provides that an offender burdened with payment of Diyat, in the event of default, shall remain lodged in prison until it is paid in full or through installments settled against security, however, under sub-section (3) thereof, in the event of his death, it shall be recoverable from his estate. A combined reading of section 431 of the Code of Criminal Procedure, 1898 with section 331 of the Code, unambiguously ensure continuation of appeal by an offender liable to payment of Diyat even after his death, thus, there was no occasion for the learned Judges in the High Court to short- circuit the proceedings without adjudication on merit. Consequently, Criminal Petition is converted into appeal; same is allowed, the impugned order is set aside. The appeal shall be deemed to be pending before the High Court for decision on merits, after hearing the parties. Above are the reasons of short order of even date whereby the following order was passed:- Criminal Appeal No.303-L of 2018 3 "For detailed reasons to be recorded later, the instant criminal petition is converted into an appeal and the same is hereby allowed. The order dated 29.01.2018, passed by the learned High Court, Multan Bench, Multan, whereby criminal appeal filed by the convict Muhammad Shamoon (since dead) was consigned to record as having been abated is set aside. The said appeal shall be deemed to be pending before the learned High Court, which shall be decided on merits after hearing the parties." JUDGE JUDGE Lahore, the 30th of May, 2019 Approved for Reporting Azmat Ali/* JUDGE

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE YAHYA AFRIDI MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI MR. JUSTICE MUHAMMAD ALI MAZHAR CRIMINAL PETITION NO. 317-L OF 2023 (On appeal against the order dated 14.02.2023 passed by the Lahore High Court, Lahore in Crl. Misc. No. 48864-B/2022) Naveed Sattar … Petitioner Versus The State etc … Respondents For the Petitioner: Mr. Humayoun Rashid, ASC (Through video link from Lahore) For the State: Mr. Irfan Zia, DPG M/s. Wahid and Iqbal, SI For the Complainant: In person Date of Hearing: 20.09.2023 ORDER SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through the instant petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed the order dated 14.02.2023 passed by the learned Single Judge of the learned Lahore High Court, Lahore, with a prayer to grant post-arrest bail in case registered vide FIR No. 406/2021 dated 17.07.2021 under Sections 302/34/118/120-B/109/506 PPC at Police Station B-Division, District Kasur, in the interest of safe administration of criminal justice. 2. Briefly stated the prosecution story as narrated in the crime report is that in the night of 17.07.2021, three unknown persons entered in the house of the complainant and murdered her son by making fires on his right leg below the abdomen. On the same day, the complainant got lodged the FIR against the unknown persons. On 25.08.2021, 30.10.2021 and 15.11.2021, the complainant got recorded her supplementary statements under Section 164 Cr.P.C. wherein she did not nominate the Criminal Petition No. 317-L/2023 2 petitioner as an accused. However, subsequently she recorded yet another statement on 22.11.2021 wherein she nominated the present petitioner for the first time. The petitioner was arrested on 27.11.2021 whereafter he applied for post-arrest bail before the learned Trial Court as also before the learned High Court but could not get the relief sought for. Hence, this petition. 3. At the very outset, it has been argued by learned counsel for the petitioner that the petitioner has been falsely roped in this case against the actual facts and circumstances. Contends that the allegations leveled against the petitioner are false, frivolous, baseless, concocted and the prosecution story is not worthy of credit. Contends that the complainant nominated the petitioner in her fourth supplementary statement after a period of four months, which shows her mala fides. Contends that the photographs allegedly connecting the petitioner with the commission of the crime were never sent for forensic examination, therefore, they cannot be relied upon to determine the guilt of the petitioner. Lastly contends that the learned High Court while declining bail to the petitioner has not followed the guidelines issued by this Court for the safe administration of criminal justice, therefore, the same may be set at naught and the petitioner may be released on bail. 4. On the other hand, learned Law Officer assisted by the complainant in person opposed the petition by contending that the petitioner has specifically been nominated by the complainant while recording her supplementary statement and he was found involved during police investigation, therefore, he does not deserve any leniency from this Court. 5. We have heard learned counsel for the parties at some length and have perused the available record with their able assistance. As per the contents of the crime report, on 17.07.2021 at 02:50 AM (night), three unknown persons entered in the house of the complainant and murdered her son by making fires on his right leg below Criminal Petition No. 317-L/2023 3 the abdomen. On the same day, the complainant got registered the FIR against the unknown persons. We have noted that subsequently the complainant got recorded three supplementary statements on 25.08.2021, 30.10.2021 and 15.11.2021 wherein she did not nominate the petitioner as an accused. However, on 22.11.2021 she recorded another statement after the lapse of more than four months wherein she nominated the present petitioner for the first time. A bare look of the crime report and the subsequent four supplementary statements got recorded by the complainant shows that the complainant remained changing her stance. The identification parade was conducted after petitioner’s nomination by the complainant and in such circumstances, prima facie the sanctity of such test identification parade is open for determination. So far as the Call Data Record (CDR) is concerned, this Court in a number of cases has held that in absence of any concrete material the CDR is not a conclusive piece of evidence to ascertain the guilt or otherwise of an accused. Similarly, there is nothing on record to show that the photographs allegedly connecting the petitioner with the commission of the crime were ever sent for forensic examination, therefore, in view of the law laid down by this Court in Ishtiaq Ahmed Mirza Vs. Federation of Pakistan (PLD 2019 SC 675) it is unsafe to rely upon the same as a piece of evidence in a court of law. It appears there is no direct evidence against the petitioner and the prosecution case hinges upon the circumstantial evidence. The fundamental principle of universal application in cases dependent on circumstantial evidence is that in order to justify the inference of guilt of an accused, the incriminating fact must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt. The cumulative effect of all these aspects creates a doubt in the genuineness of prosecution version. It is settled principle of law that benefit of doubt can be even extended at bail stage. Reliance is placed on Muhammad Ejaz Vs. The State (2022 SCMR 1271), Muhammad Arshad Vs. The State (2022 SCMR 1555) & Fahad Hussain Vs. The State (2023 SCMR 364). Although the petitioner was found involved during Police Criminal Petition No. 317-L/2023 4 investigation but it is settled law that ipsi dixit of the Police regarding the guilt or innocence of an accused could not be depended upon as the same would be determined by Trial Court on the basis of evidence available on record. The petitioner is behind the bars for the last more than 20 months. This court in a number of cases has held that liberty of a person is a precious right, which has been guaranteed under the Constitution of Islamic Republic of Pakistan, 1973, and the same cannot be taken away merely on bald and vague allegations. Taking into consideration all the facts and circumstances stated above, we are of the view that the case of the petitioner squarely falls within the ambit of Section 497(2) Cr.P.C. entitling for further inquiry into his guilt. 6. For what has been discussed above, we convert this petition into appeal, allow it and set aside the impugned order. The petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs.200,000/- with one surety in the like amount to the satisfaction of learned Trial Court. Before parting with the order, we may observe that the observations made in this order are tentative in nature and would not prejudice the proceedings before the Trial Court. JUDGE JUDGE JUDGE Islamabad, the 20th of September, 2023 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE SAJJAD ALI SHAH MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CRIMINAL PETITION NO. 324 OF 2020 (Against the order of the Lahore High Court, Rawalpindi Bench Rawalpindi dated 02.01.2020 passed in Crl. Misc. 2218-B of 2020) Muhammad Faisal … Petitioner Versus The State and another … Respondents For the Petitioner For the Complainant : Umar Aasdullah, ASC Complainant in person. For the State : Syed Ahmad Raza Gillani, APG and Saeed I.O. Date of Hearing : 05.05.2020 ORDER SAYYED MAZAHAR ALI AKBAR NAQVI, J:- Petitioner has assailed the jurisdiction of this Court under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 calling in question the order of learned Lahore High Court, Rawalpindi Bench Rawalpindi dated 20.01.2020 with prayer to grant leave against the order and to release the petitioner on post arrest bail in the interest of justice. 2. The petitioner alongwith others was involved in case bearing FIR No.524/2019 dated 05.08.2019, registered with police station Gujar Khan, District Rawalpindi. Criminal Petition No. 324 of 2020. -: 2 :- As per allegation contained in the crime report, it is alleged that petitioner while armed with pistol .30 bore resorted to two consecutive fire shots which landed on right knee and below the right knee on left side of injured PW. 3. At the very outset, learned counsel for the petitioner argued that the injuries ascribed to the petitioner are exaggerated by the prosecution. Contends that dimension of injury No.2 commensurate with injury No.1 which shows that both the injuries are in continuation of each other. Further contends that the injured PW was admitted in the hospital, however, he was discharged on the following day which fact in isolation reflects that the injured PW was not suffering from any serious injury. It has been further argued that declaration of injury was made at a belated stage with the delay of eight months which speaks volume qua its authenticity. Lastly it has been argued that even if it is assumed that the injuries has been caused by the petitioner, still it do not fall within the prohibitory clause of section 497 Cr.P.C. entitling the petitioner for the relief sought for. 4. On the other hand, the injured PW present in person has stated that he sustained two fire shot injuries by the hands of the petitioner. He was admitted in the hospital for a considerable time where he was operated upon; hence, petitioner is not entitled for the grant of bail. 5. We have heard the learned counsel for the parties and gone through the record. As per prosecution version contained in the FIR, though the petitioner has been attributed two fire shots on non-vital part of the body of injured PW, however, dimension and locale of injuries Criminal Petition No. 324 of 2020. -: 3 :- portray that possibility cannot be ruled out that injures No. 1 & 2 are in continuation of each other. Perusal of record further reveals that the petitioner was admitted in hospital on 19.08.2019 while he was discharged on the following day i.e. 20.08.2019. The statement of injured PW that he has undergone surgical intervention is not substantiated from the record. The injury ascribed to the petitioner has been declared falling under section 337 F(vi) PPC which entail as per statue maximum punishment of seven years. There is no denial to this fact that the declaration of injury was made after the lapse of eight months i.e. on 04.05.2020, during the pendency of instant petition before this Court. The accumulative effect of all these facts and circumstances create doubt regarding truthfulness of prosecution version. It is established principle of law that benefit of doubt can even be extended at bail stage. 6. As far as the question of applicability of section 324 PPC is concerned, undeniably, the injuries are on non-vital part against a motive which is feeble in nature, hence, we are constrained to give any finding lest it may prejudice case of either party, however, it would be resolved by the learned trial court after recording of evidence during the course of proceeding before it. Keeping in view all the facts and circumstances and while seeking guidance from judgment of this Court titled as “Muhammad Umar vs. the State and another” (PLD 2004 Supreme Court 477), we are of the considered view that the case of the petitioner is of “further inquiry” falling within the ambit of section 497(2) Cr.P.C. Otherwise, liberty of a person is a precious right which has been guaranteed in the Constitution of Islamic Republic of Pakistan, 1973. Criminal Petition No. 324 of 2020. -: 4 :- 7. As a consequence of the facts and circumstances surfaced on the record, we are persuaded to grant leave in this case. As such, Criminal Petition is converted into appeal, same is allowed; the petitioner shall be released on bail subject to his furnishing bail bonds in the sum of Rs.5,00,000/- with one surety in the like amount to the satisfaction of the learned trial Court/Duty Judge. 8. Before parting with the order, it has been made clear that the observations made hereinabove are tentative in nature and it has no bearing during the course of proceedings before the learned trial court. Judge Judge Islamabad, 05.05.2020 Approved for reporting Athar

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MUNIB AKHTAR MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CRIMINAL PETITION NO. 328 OF 2023 (On appeal against the order dated 08.03.2023 passed by the Lahore High Court, Lahore in Crl. Misc. No. 15722-B/2023) Muhammad Ali … Petitioner VERSUS The State and another … Respondents For the Petitioner: Mr. Azmat Ullah Chaudhry, ASC For the State: N.R. Date of Hearing: 18.04.2023 ORDER SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through the instant petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed the order dated 08.03.2023 passed by the learned Single Judge of the Lahore High Court, Lahore, with a prayer to grant post-arrest bail on statutory ground in case registered vide FIR No. 1385 dated 10.10.2020 under Sections 324/148/149/337-L(i)/337-D/337- F(v)/337-F(iii)/336 PPC at Police Station South Cantt, District Lahore, in the interest of safe administration of criminal justice. 2. Briefly stated the allegation against the petitioner is that he along with his co-accused while armed with firearms launched a murderous attack on the complainant party and due to the firing made by the petitioner and co-accused, as many as eight persons from the complainant party sustained injuries on different parts of their bodies. 3. At the very outset, it has been argued by learned counsel for the petitioner that the petitioner has been falsely roped in this case CRIMINAL PETITION NO. 328 OF 2023 2 against the actual facts and circumstances. Contends that the petitioner is behind the bars for the last more than 20 months and the conclusion of trial is not in sight in near future, therefore, he is entitled for the grant of post-arrest bail on statutory ground. Contends that the delay in conclusion of the trial is not attributable to the petitioner rather the same occasioned due to the prosecution. Lastly contends that the learned High Court while declining bail to the petitioner has not followed the guidelines issued by this Court for the safe administration of criminal justice, therefore, the same may be set at naught and the petitioner may be released on bail. 4. We have heard learned counsel for the petitioner at some length and have perused the available record. There is no denial to this fact that the petitioner filed three successive post-arrest bail petitions before the learned High Court. Two of them were on statutory ground and all were dismissed. The petitioner was arrested on 30.07.2021 and the charge was framed against him on 03.12.2021. In the impugned order, the learned High Court has very elaborately discussed the conduct of the petitioner-accused side, which candidly shows that the accused side is lingering on the matter deliberately and is not cooperating to conclude the trial expeditiously. The learned High Court referred four instances when although the prosecution witnesses were present before the learned Trial Court but their evidence could not be recorded because of the adjournment sought by the petitioner. In this backdrop, the learned High Court rightly observed that the petitioner is intentionally delaying the matter just to create a ground for bail in his favour. As many as eight persons from the complainant party sustained firearm injuries on different parts of their bodies. The perusal of record reflects that the complainant party is producing the witnesses before the learned Trial Court on each and every date but the petitioner is avoiding getting their evidence recorded. While deciding bail petition on statutory grounds, the Courts must examine the available material to first form an opinion that such delay is not occasioned due to any act of the accused himself or any other person acting on his behalf. If that be so, the CRIMINAL PETITION NO. 328 OF 2023 3 bail even on ground of statutory delay can be declined. The learned High Court has correctly appreciated the material aspects of the case and the conclusions drawn are in line with the guidelines enunciated by this Court on the subject. Learned counsel for the petitioner has not been able to point out any legal or factual error in the impugned order, which could be made basis to take a different view from that of the learned High Court. 5. For what has been discussed above, we do not find any merit in this petition, which is dismissed and leave to appeal is refused. JUDGE JUDGE Islamabad, the 18th of April, 2023 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Asif Saeed Khan Khosa, ACJ Mr. Justice Dost Muhammad Khan Criminal Petition No. 32 of 2017 and Criminal Miscellaneous Application No. 54 of 2017 (Against the order dated 30.11.2016 passed by the Lahore High Court, Lahore in Criminal Appeal No. 1501 of 2015) State through the Deputy Director (Law), Regional Directorate, Anti-Narcotics Force …Petitioner versus Mujahid Naseem Lodhi …Respondent For the petitioner: Raja Inaam Ameen Minhas, Special Prosecutor, Anti-Narcotics Force Syed Rifaqat Hussain Shah, AOR Mr. M. Tariq, Deputy Director (Law) For the respondent: In person. On Court’s Notice: Syed Nayyab Hussain Gardezi, Assistant Attorney-General for Pakistan Date of hearing: 05.07.2017 ORDER Asif Saeed Khan Khosa, ACJ.: The respondent namely Mujahid Naseem Lodhi had been booked in case FIR No. 36 registered at Police Station Anti-Narcotics Force, Lahore on 24.07.2012 in respect of an offence under section 9(c) read with section 15 of the Control of Narcotic Substances Act, 1997 with an Criminal Petition No. 32 of 2017 2 allegation that he was apprehended while in possession of heroin weighing 3100 grams (3.100 kilograms). In the same case an allegation had also been leveled against the respondent’s co- accused namely Muhammad Suneel that he was apprehended while in possession of heroin weighing 900 grams. During the trial the said Muhammad Suneel co-accused admitted his guilt and confessed before the trial court and on such admission of guilt by him he was convicted by the trial court for an offence under section 9(b) of the Control of Narcotic Substances Act, 1997 and was sentenced to rigorous imprisonment for four months and fine. Later on during the same trial the present respondent namely Mujahid Naseem Lodhi also admitted his guilt, confessed and showed remorse and repentance on the basis of which he was convicted by the trial court for an offence under section 9(c) of the Control of Narcotic Substances Act, 1997 and was sentenced to rigorous imprisonment for three years and fine. The State through the Anti-Narcotics Force sought enhancement of the respondent’s sentence through an appeal which was dismissed by the High Court and now the same relief has been sought by the State through the present petition before this Court. 2. On 20.03.2017 this Court had raised some queries regarding competence of the State to file an appeal seeking enhancement of a convict’s sentence and also regarding competence of a Special Prosecutor, Anti-Narcotics Force to file an appeal before this Court and in respect of such queries notice was issued to the respondent as well as to the learned Attorney-General for Pakistan. 3. We have heard the learned Special Prosecutor, Anti- Narcotics Force, the learned Assistant Attorney-General for Pakistan and the respondent appearing in person on the above mentioned issues as well as on the merits of the case. 4. The questions of law noticed above do not require any pronouncement by this Court through the present petition because the same have already been attended to and authoritatively Criminal Petition No. 32 of 2017 3 answered in the judgment passed by this Court in the case of The State through Director-General, Anti-Narcotics Force v. Abdul Jabbar alias Jabbara (Criminal Appeal No. 254 of 2014 decided on 18.05.2010). 5. As regards the prayer made through the present petition regarding enhancement of the respondent’s sentence the learned Special Prosecutor, Anti-Narcotics Force has mainly relied upon the judgment handed down by a Full Bench of the Lahore High Court, Lahore in the case of Ghulam Murtaza and another v. The State (PLD 2009 Lahore 362) wherein some guidelines had been laid down vis-à-vis sentencing in cases of narcotic substances and has maintained that the sentence passed by the trial court against the respondent was not in accord with the said guidelines. The said judgment of the Lahore High Court, Lahore had approvingly been referred to by this Court in the case of Ameer Zeb v. The State (PLD 2012 SC 380). We note that in paragraph No. 10 of the judgment handed down by the Lahore High Court, Lahore in the above mentioned case it had been observed that “in a particular case carrying some special features relevant to the matter of sentence a Court may depart from the norms and standards prescribed above but in all such cases the Court concerned shall be obliged to record its reasons for such departure.” In the case in hand the trial court had recorded reasons for passing a sentence against the respondent which made a departure from the above mentioned sentencing guidelines. The trial court had observed that the respondent had made a confession before the trial court besides expressing remorse and repentance with an assurance not to deal with narcotics in future. It was also noticed by the trial court that the respondent’s co-accused namely Muhammad Suneel had also made a confession before the trial court and on the basis of such confession he was also awarded a sentence which departed from the above mentioned sentencing guidelines but the State had not sought enhancement of his sentence. The High Court had refused to enhance the respondent’s sentence and had dismissed an appeal filed by the State in that regard by holding that the Criminal Petition No. 32 of 2017 4 above mentioned considerations weighing with the trial court for passing a reduced sentence against the respondent were appropriate in the circumstances of the present case. The exercise of jurisdiction and discretion in the matter of the respondent’s sentence by the trial court and the High Court have not been found by us to be open to any legitimate exception, particularly when the reasons recorded for passing a reduced sentence against the respondent and for making a departure from the above mentioned sentencing guidelines have been found by us to be proper in the peculiar circumstances of this case. This petition is, therefore, dismissed and leave to appeal is refused. Criminal Miscellaneous Application No. 54 of 2017 6. As the main petition has been dismissed by this Court today, therefore, the interim relief already allowed through the present miscellaneous application is withdrawn and recalled. This miscellaneous application is dismissed. Acting Chief Justice Judge Islamabad 05.07.2017 Approved for reporting. Arif

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mushir Alam Mr. Justice Yahya Afridi Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition Nos.335 of 2020 and 678 of 2020 (Against the judgment dated 18.02.2020 passed by the Peshawar High Court Peshawar in Criminal Appeal No.1323.P/2019 and Crl. Rev. No.260-P of 2019) Fareed & others (in Cr. P.335/2020) Usman Shah (in Cr. P.678 /2020) …Petitioner(s) Versus The State and another (in Cr. P.335/2020) Fareed & others (in Cr. P.678 /2020) …Respondent(s) For the Petitioner(s): Mr. Asadullah Khan Chamkani, ASC (in Cr. P.335/2020) Mr. Hussain Ali, ASC (in Cr. P.678/2020) For the State: Mr. Arshad Hussain Yousafzqai, ASC/ State Counsel (in both cases) For Respondent(s): Mr. Hussain Ali, ASC (in Cr. P.335/2020) Mr. Asadullah Khan Chamkani, ASC (in Cr. P.678 /2020) Date of hearing: 29.09.2020. ORDER Qazi Muhammad Amin Ahmed, J.- Petitioners, real brothers inter se, were tried by a learned Additional Sessions Judge at Mardan for committing Qatl-i-Amd of Ghulam Muhammad, 56, and assaulting his son Usman Shah (PW-5) held under their restraint; they were returned a guilty verdict vide judgment dated 31.10.2019 whereby they stood convicted under section 316 of the Pakistan Penal Code, 1860 as well as on the coordinate charge; sentenced to 10-years and Crl. P. Nos.335 & 678 of 2020 2 1-year Rigorous Imprisonment, respectively, each they were directed to pay Diyat to the legal heirs of the deceased; the High Court maintained the convictions, however, reduced the sentence of imprisonment to a period of 5-years RI vide impugned judgment dated 18.02.2020, vires whereof, are being assailed by the petitioners through Criminal Petition No.335 of 2020 on a variety of grounds, casting of a larger net, being the most prominent. The complainant has also sought enhancement of the sentence through Criminal Petition No.678 of 2020. 2. On the fateful day, i.e. 24.6.2013, in the backdrop of a previous altercation, the petitioners accompanied by two unknown companions assaulted the complainant/PW-5 and his father Ghulam Muhammad with butt blows; former was thereafter detained in a Hujra; casualties were shifted to DHQ Hospital Mardan; medical officer confirmed receipt of multiple injuries caused by blunt weapon. Ghulam Muhammad succumbed to the injuries on 26.06.2013; Ikram and Zahir Shah, petitioners, were arrested on 14.11.2013 followed by Farid Khan and Muhammad Saeed on 08.05.2014; they were sent to face trial albeit with no recovery. Dying declaration by Ghulam Muhammad deceased and ocular account furnished by his injured son received acceptance both by the learned trial Court as well as the High Court to view the incident as Qatl Shibhi-i-Amd within the contemplation of section 316 of the Code ibid. 3. Learned counsel for the petitioners/convicts contends that entire clan comprising four real brothers has been implicated in a sudden affair; that the number of injuries do not correspond with the assailants and thus, there was no occasion for the courts below to settle en bloc culpability on the statement of a witness who despite alleging assault surprisingly remained unscathed, next argued the learned counsel to conclude that in the given background, reliance upon dying declaration was highly unsafe. The learned Law Officer assisted by the learned counsel for the complainant defended the impugned judgments. It is argued in Criminal Petition No.678 of 2020 that that death being the obvious consequence of the injuries inflicted by the convicts to the deceased, in his mid-sixties, their culpability most aptly fell within the mischief of clause (b) of section 302 of the ibid and, thus, interference by this Court is most called for; in any case, there was no occasion for the High Court to substantially reduce the sentence without any extenuating reason, concluded the learned counsel. Crl. P. Nos.335 & 678 of 2020 3 4. Heard. Record perused. 5. Deceased was medically examined shortly after the incident and the medical officer observed following injuries on his person: 1. Blunt trauma lower abdomen 2. Blunt trauma nose with epistaxis Though apparently trivial, the deceased with the fragility of old age could not endure the injuries; the autopsy report noted multiple red colour bruises of various sizes starting from 2 x 3 cm to 7 x 10 cm on various parts of the body accompanied by laparotomy and surgical wound. According to the medical officer, the deceased died due to injuries in small intestine and abdominal blood vessels, seemingly insufficient to cause death in the ordinary course of nature, nonetheless, unmistakably suggesting infliction of violence that proportionates to the number of assailants, additionally confirmed by the investigative conclusions. Wholesale participation by the four brothers in a situation ignited on some trivial issue, in a rural neighbourhood of Khyber Pakhtunkhwa, without anticipating an homicidal death does not raise eyebrows. Though the medical officer has blamed the above noted injuries as the cause behind the death, however, it cannot be held with any degree of certainty that the said injuries were essentially caused by blunt weapons to invoke the doctrine of novus actus interveniens so as to saddle the petitioners with the mischief of clause (b) of the section ibid as argued by the complainant’s counsel. Prosecution’s failure to effect recovery reflects upon the allegation of infliction of butt blows; violence appears to be result of modes other than conventional and, thus, view taken by the Courts below being, well within the remit of law, calls for no interference. Petitions fail. Leave declined. Judge Judge Judge Islamabad, the 29th September, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Sardar Tariq Masood Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.33 of 2021 (Against the judgment dated 11.01.2021 passed by the Lahore High Court Bahawalpur Bench Bahawalpur in Cr. Misc. No.4127-B/2020) Muhammad Nadeem …Petitioner(s) Versus Muhammad Khurram Iqbal and another …Respondent(s) For the Petitioner(s): Nemo For Respondent No.1: Ch. Hafeez Ullah Yaqub, ASC with respondent. Mr. M. Sharif Janjua, AOR For the State: Mirza Abid Majeed, Deputy Prosecutor General Punjab Date of Hearing: 17.02.2022. ORDER Qazi Muhammad Amin Ahmed, J.:- Impugned herein is order dated 11.01.2021 whereby a learned Judge-in-Chamber of the Lahore High Court at Bahawalpur Bench Bahawalpur admitted Khurram Latif respondent to bail in anticipation to his arrest in a criminal case under sections 3, 4 of the Punjab Prohibition Money Lending Act, 2007, registered with Police Station City Sadiqabad on the complaint of Muhammad Nadeem petitioner. According to the petitioner, in the course of a business transaction, he borrowed a sum of Rs.150,000/- to be repaid through monthly installments of Rs.6000/- each, a terminal vicious circle that continued to burden him despite payment of Rs.500,000/-; as the petitioner exorbitantly raised the interest rate and also coerced him to issue bank cheques from his account, a sword of damocles over his head, trapped with no option, he finally laid information with the police and it is in this backdrop that Criminal Petition No.33 of 2021 2 petitioner’s first attempt before a learned Additional Sessions Judge at Sadiqabad failed, however, upon his approach to the High Court he was granted judicial protection vide impugned order dated 11.01.2021. 2. Heard. Record perused. 3. What weighed with the learned Judge-in-Chamber to favourably exercise his extraordinary equitable jurisdiction in respondent’s favour, for the convenience of reference is reproduced below:- “After hearing the learned counsel for the parties and having gone through the record, it reveals that although the petitioner is named in the FIR with the above said accusation of committing violation of provision of the Act ibid, but at the same time I observed that during the course of investigation, an arbitration/Panchayat was convened between the parties and arbitration deed was executed, in which it is categorically written that the present petitioner is not involved in any money lending and an amount of Rs.44,700/- is still outstanding against Muhammad Nadeem towards the present petitioner. In this regard, the complainant himself has sworn an affidavit, copy of the same is annexed with this petition, in which he has reiterated that the petitioner is owner of Al-Medina Traders and he has no concern with the money lending and he further undertook to pay Rs.44700/- which were still outstanding against him. When this situation was put to the Investigating officer, present in court, he frankly conceded that an arbitration deed has been written between the parties.” The reasoning by itself unmistakably confirms subsistence of a dispute raging between the parties over payment of some outstanding amount. Upon a direction issued by this Court, District Police Officer Rahim Yar Khan confirmed that the impugned affidavit, relied upon by the High Court was secured by the respondent, through means stained with duress and coercion, an act by itself constituting an offence under the law; at worst, hardly furnishing a justification to extend a relief rooted into equity that too by suspending usual course of law, inevitably arrest in a cognizable criminal case. It is by now well settled that protection of pre-arrest bail is essentially a judicial protection to protect the innocent, being Criminal Petition No.33 of 2021 3 targeted through abuse of process of law for motives, oblique and sinister; it is neither a substitute for post arrest bail nor a treatment to be extended in every run of the mill criminal case. It is an option that warrants caution in its exercise, seemingly ignored by the High Court. Criminal Petition is converted into appeal and allowed; pre-arrest bail granted to the respondent is cancelled. Judge Judge Judge Islamabad, the 17th February, 2022 Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL MR. JUSTICE AMIN-UD-DIN KHAN Criminal Petitions No. 35-Q/2017 to 37-Q/2017 (On appeal from the judgment dated 5.6.2017 passed by the High Court of Balochistan, Quetta in Crl.A.No.107/2014 and M.R.No.3/2014 and Crl. Acquittal AppealNo.122/2014). Abdul Wasay …In Crl.P.35-Q/17 Abdul Shakoor …In Crl.P.36-Q/17 Abdul Shakoor & another …In Crl.P.37-Q/17 …Petitioners VERSUS The State …In Crl.P.35-Q/17 Abdul Wasay & another …In Crl.P.36-Q/17 Abdul Hadi & others …In Crl.P.37-Q/17 …Respondents For the Petitioners: Mr. Liaqut Ali Tareen, ASC (In Cr.P.35-Q/17) Syed Rifaqat Hussain Shah, AOR For the Petitioners: Mr. Zahoor-ul-Haq Chishti, ASC (In Cr.P.36-Q & 37-Q/17) Mr. Mehmood A. Sheikh, AOR For State: Syed Baqir Shah, ASC (State Counsel) (In all cases) For the Complainant: Mr. Zahoor-ul-Haq Chishti, ASC (In Cr.P.35-Q/17) Mr. Mehmood A. Sheikh, AOR Date of Hearing: 19.2.2021 ORDER MAZHAR ALAM KHAN MIANKHEL, J-. Criminal Petition No. 35-Q of 2017 The Petitioner-convict was booked in case FIR No.22/2012 dated 18th May, 2012 registered under Sections 302, 147,148,149 of the Pakistan Penal Code (PPC) and under Section 337-A,D,F, of the Crl.P.35-Q/2017, etc 2 Q&D Ordinance, Police Station, City-Chaman, District Killa Abdullah at Chaman alongwith his co-accused for the murder/qatl-e-amd of Najeebullah son of Abdul Shakoor and causing knife blows to the complainant-Abdul Shakoor and his brother Abdul Wadood. After investigation and a regular trial the Petitioner was convicted under Section 302 sub-Section (ii) of Q&D (as was described in the Qisas and Diyat Ordinance) and sentenced to death as Tazir and further to pay a compensation of Rs.200,000/- (two lac) under Section 544-A of Code of Criminal Procedure (Cr.P.C.) to the legal heirs of the deceased and in default thereof to further suffer one year S.I. The conviction of the Petitioner was also maintained in appeal by the High Court of Balochistan, Quetta vide its Judgment dated 5th June, 2017, however, his sentence of death was modified to life imprisonment and benefit under Section 382-B Cr.P.C. was also extended to him. Compensation under Section 544-A Cr.P.C. and sentence in default thereof was ordered to be maintained. The Petitioner through instant petition has sought grant of leave to appeal by this Court against the impugned Judgment dated 5th June, 2017. 2. We have heard the learned counsel for Petitioner and the learned State Counsel assisted by learned counsel for the complainant. Perusal of the record reveals that the complainant alongwith his brother Abdul Wadood while going to Bazar on 18th May, 2012 for buying household articles were attacked by the Petitioner alongwith his co-accused at 8.00 AM in the vicinity of Police Station/Thana, ‘Levies Chaman’ District Killa Abdullah and the said matter was also reported vide FIR No.84/2012. The complainant received injuries. The complainant was being taken to hospital by his brother Abdul Wadood and his son Najeebullah. When Crl.P.35-Q/2017, etc 3 they reached outside the main gate of civil hospital Chaman, the accused party including the Petitioner once again attacked them. The Petitioner gave repeated churrri blows to Najeebullah who succumbed to the injuries at the spot, whereas the complainant and his brother Abdul Wadood received stab wound injuries at the hands of Abdul Rashid co-accused. Perusal of the record further reflects that the patrolling police reached at the spot during the occurrence and the Petitioner alongwith his acquitted co-accused Abdul Rashid, Abdul Hadi and Syed Ali were arrested at the spot alongwith their respective weapons of offence i.e. ‘Churri’ (P-7) and ‘Chaqu’ (P-9). The same were taken into custody by the investigating officer vide recovery memo (Ex-P-5). PW-5 has not only confirmed the arrest of the accused at the spot but has also confirmed the recovery of their respective above noted weapons of offence. We have noted that it is a promptly lodged report and the Petitioner alongwith his co-accused were arrested at the spot. The case of the prosecution is fully supported by the two injured PWs namely Abdul Shakoor (PW-1) and Abdul Wadood (PW- 2); Dr. Rafiullah appeared as PW-6 who confirmed the death of the deceased, Najeebullah by issuing the MLC (Ex-P-6). (In this area, postmortems normally are not conducted for the reasons best known to the local administration as well as people of the locality). The MLC issued by the Doctor fully supports the story of the prosecution regarding murder of Najeebullah (deceased). The trial Court and the High Court after proper appraisal of the evidence have recorded conviction of the Petitioner. We have also gone through the entire evidence and the material available on the record with the assistance of the learned counsel for the parties and found nothing to interfere with the conviction recorded by the courts below. Since the motive alleged by the prosecution was not proved, so, the benefit to that Crl.P.35-Q/2017, etc 4 extent i.e. conversion of death sentence to life imprisonment has already been extended to the Petitioner in his appeal before the High Court. The Petitioner simply denied the commission of offence but he was also unable to give plausible explanation regarding his innocence in his statement under Section 340(2) Cr.P.C., rather he has admitted his arrest in the hospital but with a different narration but that too was not established. 3. The Petitioner alone has been charged for committing murder of the deceased Najeebullah, whereas the other co-accused have been charged for causing injuries to Complainant (PW-1) and Abdul Wadood (PW-2). The prosecution has fully proved its case against the Petitioner. We after proper appraisal of evidence see no merits in this petition which is dismissed and leave refused. Criminal Petition No. 36-Q/2017: Since the death sentence awarded to the convict - Abdul Wasay/Respondent No.1 was converted to life imprisonment for want of proof of motive, alleged by the prosecution, so by considering the same as a mitigating circumstance, sentence awarded to the Petitioner was modified. The learned counsel for the complainant was unable to convince us for taking yet another view of the matter for enhancement of sentence of convict, Abdul Wasay/Respondent No.1; hence, this petition being meritless is dismissed and leave refused. Criminal Petition No. 37-Q/2017: Respondent No. 3/Abdul Rashid, accused was charged for causing knife blows to the complainant and Abdul Wadood but no medical evidence of the said injuries from proper source was brought Crl.P.35-Q/2017, etc 5 on the record. The investigation officer produced their medical certificates but the same were not considered and relied upon by the trial court to record his conviction. Yet another aspect of the case was also helpful in his acquittal as the complainant had also received injuries in the earlier round of occurrence (separately reported vide FIR No.84/2012 of the same date) and in absence of specific medical report, it was difficult for the trial court to determine the injuries to have been inflicted in the present occurrence, whereas Respondent No. 1 and 2/ Abdul Hadi and Syed Ali co-accused were charged for giving kicks and fists blows to the complainant party, but the prosecution has failed to prove the case against them, hence this petition, too, being meritless, is dismissed as such and leave refused. We have observed that there exist some confusion and misconception of law regarding Chapter-XVI (“Offences Affecting the Human Body”) of the Pakistan Penal Code, 1860 (“PPC”) and the Code of Criminal Procedure, 1898 (“Cr.P.C.”) in the legal and judicial system in the Province of Balochistan, dealing with the matters noted above as they still use the repealed provisions of law. For the first time, the provisions relating to Qisas and Diyat were introduced in PPC and Cr.P.C. by the Criminal Law (Second Amendment) Ordinance, 1990 (Ordinance VII of 1990) commonly known as Qisas & Diayt Ordinance. This Ordinance though was repealed by a subsequent Ordinance, i.e. the Criminal Law (Second Amendment) Ordinance, 1991 (Ordinance I of 1991) but the same provisions were also re-enacted in the PPC and Cr.P.C. through the same Ordinance. This process of repeal and re-enactment continued till Ordinance CXIII of 1996 and finally before expiry of Ordinance CXIII of 1996, the provisions of law relating to Qisas and Diyat were permanently made Crl.P.35-Q/2017, etc 6 part and parcel of Pakistan Penal Code, 1860 (PPC) and Code of Criminal Procedure, 1898 (Cr.P.C.) vide Criminal Law (Amendment) Act, 1997 (Act II of 1997). The Chapter XVI was accordingly made part of Pakistan Penal Code (PPC) applicable throughout Pakistan. Mentioning of such offences under any of such Ordinances (being repealed one) instead of PPC/Cr.P.C. is not only unlawful but a grave misconception of law. All the concerned Departments i.e. LAW and PROSECUTION; (i) Secretary, Ministry of Law & Justice, Govt. of Pakistan, Islamabad; (ii) Secretary, Law and Parliamentary Affairs Department, Govt. of Balochistan, Quetta; and (iii) Secretary, Prosecution Department, Govt. of Balochistan, Quetta and the Courts should rectify this mistake and should also be vigilant in this regard in future. Copies of this Order be accordingly sent to all the concerned. Judge Judge Islamabad, 19th February, 2021 Sarfraz /- ‘APPROVED FOR REPORTING’

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE MUNIB AKHTAR MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CRIMINAL PETITION NO. 352-L OF 2022 (On appeal against the order dated 14.02.2022 passed by the Lahore High Court, Lahore in Crl. Misc. No. 8593-B/2022) Muhammad Umar Waqas Barkat Ali … Petitioner Versus The State and another … Respondents For the Petitioner: Mr. Khalid Masood Sandhu, ASC a/w petitioner For the State: Mirza Muhammad Usman, DPG Mr. Hassan Farooq, DSP Mr. Abdul Razzaq, ASI Date of Hearing: 23.11.2022 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through the instant petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed the consolidated order dated 14.02.2022 (separate order dated 21.02.2022) passed by the learned Single Judge of the learned Lahore High Court, Lahore, with a prayer to grant pre-arrest bail in a cross-version recorded under Sections 337-A(i)/337-A(ii)/337- F(v)/354/148/149 PPC in case registered vide FIR No. 990/2021 dated 20.11.2021 under Sections 337-A(iii)/337-F(i)/337-F(v)/337-L(ii)/148/149 PPC at Police Station Mustafaabad, District Kasur, in the interest of safe administration of criminal justice. 2. Briefly stated the allegation against the petitioner is that on 17.11.2021 at about 12:15 pm, he along with co-accused while armed with firearms launched an attack on the complainant party and inflicted a rifle butt blow on the forehead of the complainant of the cross-version namely Muhammad Aslam. Co-accused Tahir Mehmood was also ascribed an Criminal Petition No. 352-L/2022 -: 2 :- injury at the left arm below elbow of the complainant, which was allegedly caused by a butt blow of pistol. However, during investigation, the same was also attributed to the present petitioner. The motive behind the occurrence was that allegedly the petitioner wanted to take forcible possession of the land belonging to the complainant. 3. At the very outset, it has been argued by learned counsel for the petitioner that the petitioner has been falsely roped in this case against the actual facts and circumstances. Contends that the father of the petitioner namely Barkat Ali had lodged the FIR against the complainant of the cross-version and as a counterblast the instant cross-version was recorded. Contends that two brothers of the petitioner had also received serious injuries during the occurrence. Contends that the cross-version was recorded with an inordinate delay of six days, which speaks volumes against its authenticity. Contends that it is a case of two versions and it is yet to be determined, which party was aggressor. Contends that a false and frivolous story has been concocted in the cross-version just to harass, humiliate and blackmail the petitioner’s party. Lastly contends that the case of the petitioner requires further inquiry within the meaning of Section 497(2) Cr.P.C., therefore, he may be granted bail. 4. On the other hand, learned Law Officer has defended the impugned order. It has been contended that the petitioner is specifically nominated in the cross-version for causing injuries on the person of the complainant, therefore, he does not deserve any leniency by this Court. 5. We have heard learned counsel for the parties at some length and have perused the available record with their able assistance. There is no denial to this fact that it was the father of the petitioner Barkat Ali, who had firstly lodged FIR No. 990/2021 under Sections 337-A(iii)/337-F(i)/337-F(v)/337-L(ii)/148/149 PPC against the complainant of the cross-version namely Muhammad Aslam and his co- accused wherein he alleged that the said Muhammad Aslam and co- Criminal Petition No. 352-L/2022 -: 3 :- accused have severely beaten his two sons Rana Amir and Rana Nasir and caused several injuries on their bodies. The medico legal certificates available on record prima facie support the accusation. It was after six days of the incident that Muhammad Aslam lodged the cross-version wherein he nominated the present petitioner. It is the stance of the petitioner that in-fact the complainant party was the aggressor and they have just exercised their right of self-defence. In the cross-version, the complainant had ascribed the injury on his left arm below elbow to the co- accused Tahir Mehmood. However, during investigation, the stance of the complainant was found to be not true. Although, the said injury was attributed to the present petitioner but nonetheless, it raises serious question about the veracity of the complainant’s allegations. The opinion of the Investigating Officer regarding the overt act of the petitioner has to be evaluated after recording of evidence as an abundant caution. In this view of the matter, the possibility of false implication just to pressurize the petitioner’s side to gain ulterior motives cannot be ruled out. Otherwise, it has been held by this Court in various judgments that merits of the case can be touched upon while adjudicating extraordinary relief of pre-arrest bail. Reliance is placed on Miran Bux Vs. The State (PLD 1989 SC 347), Sajid Hussain @ Joji Vs. The State (PLD 2021 SC 898), Javed Iqbal Vs. The State (PLD 2022 SCMR 1424) & Muhammad Ijaz Vs. The State (2022 SCMR 1271). In these circumstances, it is the Trial Court who after recording of evidence would decide about the guilt or otherwise of the petitioner and until then he cannot be put behind the bars for an indefinite period. It is settled law that liberty of a person is a precious right, which has been guaranteed under the Constitution of Islamic Republic of Pakistan, 1973, and the same cannot be taken away merely on bald and vague allegations. It is a case of two versions and it is established principle of law that where there is a case of two versions narrated before the Court, it squarely falls within the ambit of Section 497(2) Cr.P.C. 6. For what has been discussed above, we convert this petition into appeal, allow it, set aside the impugned order dated 14.02.2022 to Criminal Petition No. 352-L/2022 -: 4 :- the extent of the petitioner and confirm the ad interim pre-arrest bail granted to the petitioner by this Court vide order dated 08.11.2022. The above are the detailed reasons of our short order of even date. JUDGE JUDGE JUDGE Islamabad, the 23rd of November, 2022 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CRIMINAL PETITION NO. 358-L OF 2022 (Against the order dated 14.02.2022 passed by the Lahore High Court, Lahore in Crl. Misc. No. 933-B/2022) Rana Muhammad Imran Nasrullah …Petitioner(s) Versus The State etc …Respondent(s) For the Petitioner(s): Mr. Saeedullah Khan, ASC (via video link from Lahore) For the Respondent (2): Rana Muhammad Zahid, ASC Syed Rifaqat Hussain Shah, AOR For the State: Mirza Muhammad Usman, DPG Mr. Asif Ali Shah, DSP Rana Abdul Ghafoor, SI Mr. Muhammad Afzal, ASI Date of Hearing: 23.08.2022 ORDER SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through the instant petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed the order dated 14.02.2022 passed by the learned Single Judge of the Lahore High Court, Lahore, with a prayer to grant pre-arrest bail in case registered vide FIR No. 701/2021 dated 27.08.2021 under Sections 337-H(ii)/506(ii)/148/149 PPC & 440 PPC (reportedly added later on) at Police Station City Toba Tek Singh, in the interest of safe administration of criminal justice. 2. Briefly stated the prosecution story as set out in the crime report is that on 12.08.2021 at about 04.00 P.M., the complainant along CRIMINAL PETITION NO. 358-L/2022 -: 2 :- with his son and laborers was present on his plot and was raising construction over it when suddenly the petitioner along with his co- accused while armed with firearms came there, raised lalkara to leave the plot, demolished the newly constructed wall and extended threats of dire consequences to him. When the petitioner was forbidden by the complainant, he and his co-accused made straight fires on the son of the complainant, which luckily did not hit him. 3. At the very outset, it has been argued by the learned counsel for the petitioner that the petitioner has been falsely roped in this case against the actual facts and circumstances due to mala fides of the complainant in connivance with local police. Contends that the plot, which is the root cause of the occurrence, does not belong to the complainant and the petitioner is in possession of sale deed as well as a decree in his favour. Contends that civil litigation between the parties is pending adjudication and the present case is an attempt to pressurize the petitioner to gain ulterior motives. Contends that all the offences except Section 440 PPC are bailable in nature. Contends that Section 440 PPC is not applicable as the petitioner is owner of the property in dispute. Lastly contends that the petitioner deserves to be granted the extraordinary concession of pre-arrest bail in the interest of justice. 4. On the other hand, learned Law Officer assisted by learned counsel for the complainant have defended the impugned order. It has been contended that the petitioner has specifically been nominated in the crime report with a specific allegation of trespassing into the plot of the complainant, demolishing the newly erected wall and making straight fires on the son of the complainant. It has further been contended that according to the report of the Deputy Commissioner Toba Tek Singh, the complainant is the owner of the plot in question, therefore, the petitioner does not deserve any leniency by this Court. 5. We have heard learned counsel for the parties at some length and have perused the available record with their able assistance. CRIMINAL PETITION NO. 358-L/2022 -: 3 :- As per the contents of the crime report, the allegation against the petitioner is that he along with co-accused while armed with firearms went on the plot of the complainant, demolished the newly raised construction, extended threats of dire consequences to him and made straight fires on his son, which luckily did not hit him. However, it is the stance of the petitioner that he is owner of the plot in question where the occurrence took place; he is in possession of requisite title documents and in-fact the complainant party was the aggressor. It is admitted position that a suit for declaration qua the plot in question is still pending adjudication before the court of competent jurisdiction. In this view of the matter, the possibility of false implication just to pressurize the petitioners’ side to gain ulterior motives cannot be ruled out. However, at this stage, we do not want to comment on this aspect of the matter, lest it may prejudice the case of either of the party. It is the Trial Court who after recording of evidence would decide about the guilt or otherwise of the petitioner and until then the petitioner cannot be put behind the bars for an indefinite period. It is settled law that liberty of a person is a precious right, which has been guaranteed under the Constitution of Islamic Republic of Pakistan, 1973, and the same cannot be taken away merely on bald and vague allegations. All the offences in the crime report except Sections 506(ii) and 440 PPC are bailable. So far as ‘criminal intimidation’ is concerned, the same has been defined in Section 503 PPC in the following words:- “503. Criminal Intimidation: Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.” 6. A bare perusal of the afore-quoted provision of law makes it clear that whenever an overt act is materialized and ended into an overt act, the provision of Section 506(ii) PPC would not be applicable and the only provision which will remain in the field is the overt act, which is committed in consequence of criminal intimidation. In the present case, the provision of Sections 337-H(ii)/148/149 PPC have been alleged against CRIMINAL PETITION NO. 358-L/2022 -: 4 :- the petitioner, which is bailable in nature. As far as Section 440 PPC is concerned, the same was added at a belated stage and the application of the same would be resolved by the Trial Court after recording of evidence. It is now established that while granting pre-arrest bail, the merits of the case can be touched upon by the Court. Reliance is placed on Miran Bux Vs. The State (PLD 1989 SC 347) and Sajid Hussain @ Joji Vs. The State (PLD 2021 SC 898). Taking into consideration all the facts and circumstances stated above, we are of the view that the case of the petitioner squarely falls within the ambit of Section 497(2) Cr.P.C. entitling for further inquiry into his guilt. 6. For what has been discussed above, we convert this petition into appeal, allow it, set aside the impugned order dated 14.02.2022 and confirm the ad interim pre-arrest bail granted to the petitioner vide this Court’s order dated 28.06.2022. JUDGE JUDGE Islamabad, the 23rd of August, 2022 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mushir Alam Mr. Justice Sardar Tariq Masood Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.36-Q of 2012 (Against judgment dated 25.4.2012 passed by Balochistan High Court, Quetta in Cr. Appeal No.375/2009 along with MR No.25/2009) Dad Muhammad …Petitioner(s) Versus The State …Respondent(s) For the Petitioner(s): Ms. Aisha Tasneem, ASC For the State Mr. Baqar Shah, ASC/State Counsel Date of hearing: 6.11.2019 JUDGMENT Qazi Muhammad Amin Ahmed, J. Dad Muhammad, petitioner, indicted for being privy in the murder of Mst. Ayesha, no other than his real daughter, in connivance with his absconding son-in-law Muhammad Ismail alongside two other unknown culprits, was returned a guilty verdict by a learned Additional Sessions Judge at Kalat vide judgment dated 13.11.2009; convicted under Clause (b) of Section 302 of the Pakistan Penal Code, 1860, he was sentenced to death, altered into imprisonment for life with pre-trial commutation, vide impugned judgment dated 25.4.2012 by a Division Bench of High Court of Balochistan, Quetta, vires whereof are being challenged with a delay of 30 days, condoned in the interest of justice in view of corporal consequences of the conviction. 2. It is alleged that the deceased, blamed for being unchaste, was strangulated to death both by petitioner’s son Taj Muhammad as well as son-in-law Muhammad Criminal Petition No.36-Q of 2012 2 Ismail with the assistance of unknown co-accused, during the night intervening 15/16-7-2009 whereafter she was burried within the area of Shekhri at an unspecified place. It is prosecution’s case that subsequently the corpse was disinterred by the accused and thrown into a well, wherefrom it was discovered, pursuant to petitioner’s disclosure; according to the autopsy findings recorded by Dr. Sadia Sarwar (PW-6), it was a decomposed body with unidentifiable facial features; barring a fracture in the skull and a ligature mark around the neck, no other sign of violence was observed by the Medical Officer; strangulation was opined as cause of death. In order to drive home the charge, prosecution has primarily relied upon the evidence of motive and disclosure, leading to the recovery of dead body; according to statement of Pir Muhammad (PW-4), the accused had confronted the deceased on the following day of her marriage to inquire about her affair with her cousin Abdul Manan; she vanished subsequently, to be finally found lying dead in a well as testified by Naqib Ullah, ASI (PW-5). The petitioner confronted the prosecution evidence by entering the witness-box in disproof of the charge; cross-examination comprises denied suggestions alone. 3. Heard. 4. Homicidal death of a teenage girl, that too, on the following day of her marriage on the suspicion of her being unchaste, though shockingly abhorrent, nonetheless, we have not been able to find any piece of evidence to even obliquely connect the petitioner with the crime; evidence of discovery of dead body, in the wake of a disclosure, when examined in its totality also fails to sustain the charge inasmuch as it is prosecution’s own case that the deceased was deceitfully taken to the venue where after her murder, she was burried in a graveyard. It is quite intriguing as to why the accused after they had surreptitiously accomplished their purpose, disinterred the corpse, so as to dump it once again in a well. Ghulam Ali Criminal Petition No.36-Q of 2012 3 (PW-2), a witness of discovery of dead body, did not utter a single word about any disclosure. Statement of Manzoor Ahmad, SHO (PW-1) is hit by Article 38 of the Qanun-e- Shahdat Order, 1984 and, thus, is liable to be excluded from consideration. Volume and standard of evidence, even otherwise, is far from being sufficient to sustain the capital charge. The petitioner had picked up the courage to enter the witness-box in disproof of the charge; on oath and with vehemence, he denied his complicity in the crime and prosecution encountered him merely with bald suggestions alone, each denied. In this backdrop, it would be grievously unsafe to maintain the conviction without potential risk of error. Criminal Petition is converted into appeal; allowed; impugned judgment is set aside; the appellant is acquitted of the charge and shall be released forthwith, if not required in any other case. Judge Judge Judge Islamabad 6th November, 2019 Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE SAJJAD ALI SHAH MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CRIMINAL PETITION NO.368 OF 2020 (Against the order of the Peshawar High Court, Peshawar dated 06.04.2020 passed in Cr. M.B.A No.392-P/2020) Mukaram … Petitioner Versus The State and another … Respondents For the Petitioner For the Complainant : Mian Shafaqat Jan, ASC Syed Rifaqat Hussain Shah AOR Nemo For the State : Arshad Hussain Yousafzai, ASC Date of Hearing : 06.05.2020 ORDER SAYYED MAZAHAR ALI AKBAR NAQVI, J:- Petitioner has assailed the jurisdiction of this Court under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 challenging the order of the learned Peshawar High Court, Peshawar dated 06.04.2020 with the prayer to grant leave against the order and to release the petitioner on bail in the interest of justice. 2. The petitioner alongwith others was involved in case bearing FIR No.728/2016 dated 11.06.2016, under Section 302/324/34 PPC, registered with police station Nowshera Kalan, District Nowshera. Criminal Petition No. 368 of 2020. -:2:- As per allegation contained in the crime report, it is alleged that the complainant was cultivating in his fields, at the same time, the petitioner alongwith three others duly armed with firearm, attracted to the place and resorted to indiscriminate firing. The father of the complainant sustained solitary injury which proved fatal. The motive behind the occurrence was previous hostility between the parties. The petitioner alongwith others remained absconder for considerable time. After lapse of four years, he was taken into custody. The petitioner applied for post arrest bail before the learned trial court which was dismissed vide order dated 19.02.2020. The order of learned Addl: District & Sessions Judge-II, Nowshera was assailed before learned Peshawar High Court, Peshawar through Crl. Miscellaneous Bail Application No.392-P/2020 which was decided vide order dated 06.04.2020 while resulting into dismissal of bail application. Hence, the instant petition. 3. At the very outset, it has been argued by the learned counsel for the petitioner that the prosecution has aggravated the occurrence and had ascribed the role of causing firearm injures to four persons with their respective weapons. Contends that the deceased had sustained only one injury on his person which resulted into his death but the same is generalized in nature and has not been ascribed specifically to anyone. Contends that although the occurrence had taken place in broad day light but wider net has been thrown. Contends that though the petitioner remained absconder for four years but absconsion itself is not sufficient to established guilt unless until the same is Criminal Petition No. 368 of 2020. -:3:- substantiated from a direct source qua overt act towards the commission of offence. Contends that the petitioner is behind the bar and no more required for further investigation hence, is entitled for the relief as prayed for. 4. On the other hand, learned law officer has stated that the petitioner is nominated in the crime report with the allegation of indulging into indiscriminate firing, however frankly conceded that the deceased has sustained only one injury and even one empty was recovered from the place of occurrence. He admitted that the petitioner remained on physical remand but no recovery has been affected from him. Finally, the learned law officer has stated that as the rest of the accused persons are still at large, therefore, the petitioner is not entitled for grant of bail. 5. We have heard the learned counsel for the parties and gone through the record. 6. There is no denial to this fact that four persons are involved in this case with allegations of causing indiscriminate firing. The deceased sustained only one injury on his person which prove fatal, such allegation in generalized in nature and no one can be saddled with responsibility of causing injury to the deceased. Further only one empty was recovered from the place of occurrence. As far as the element of absconsion is concerned, it is established principle of law that absconsion per se cannot be made basis for refusal of bail in the absence of any overt act which has contributed towards commission of the offence. The allegation against the petitioner if evaluated in the instant case, he remained Criminal Petition No. 368 of 2020. -:4:- on physical remand but no recovery has been affected from him, hence the case of the petitioner squarely fall within the ambit of section 497(2) Cr.P.C entitling him for the grant of post arrest bail, otherwise liberty of a person is a precious right which cannot be taken away without strong connectivity of accusation. 7. In view of the facts and circumstances, we are persuaded to grant leave to appeal in the instant petition while converting it into appeal and the same is allowed. The petitioner shall be released on bail subject to his furnishing bail bonds in the sum of Rs.5,00,000/- with one surety in the like amount to the satisfaction of the learned trial court/Duty Judge. 8. Before parting with the order, it has been made clear that the observations made hereinabove are tentative in nature and it has no bearing during the course of proceedings before the learned trial court. Judge Judge Islamabad, 06.05.2020 Approved for reporting Syed Rashid Maqsood

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmad Malik Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.370 of 2019 (Against judgment dated 11.03.2019 of the Lahore High Court Multan Bench passed in Crl. Appeal No.21/2018) Mushtaq Ahmad …Petitioner(s) Versus The State & another …Respondent(s) For the Petitioner(s): Mr. Zulfiqar Khalid Maluka, ASC For the State Mr. Muhammad Jaffar, Additional Prosecutor General, Punjab. Date of hearing: 09.1.2020. JUDGMENT Qazi Muhammad Amin Ahmed, J. Mushtaq Ahmed, petitioner herein, surprised on a tip off by a police contingent, within the remit of Police Station Mitroo District Vehari was found in possession of 1460 grams of Charas along with weighing apparatus with some amount; indicted before a learned Additional Sessions Judge at Mailsi, he was returned a guilty verdict; convicted under Section 9(c) of the Control of Narcotic Substances Act, 1997, he was sentenced to four years R.I. with fine, under-trial period inclusive, vide judgment dated 22.12.2017, upheld by a learned Division Bench of Lahore High Court at Multan vide impugned judgment dated 11.03.2018, vires whereof are being assailed on a variety of grounds, allegedly a flawed forensic report, being most prominent. The learned Law Officer has, contrarily, defended the impugned judgment. 2. Heard. Record perused. Criminal Petition No.370 of 2019 2 3. Prosecution case is hinged upon the statements of Aamir Masood, TSI (PW-2) and Abid Hussain, 336-C (PW-3); being officials of the Republic, they do not seem to have an axe to grind against the petitioner, intercepted at a public place during routine search. Contraband, considerable in quantity, cannot be possibly foisted to fabricate a fake charge, that too, without any apparent reason; while furnishing evidence, both the witnesses remained throughout consistent and confidence inspiring and as such can be relied upon without a demur. Argument that forensic report sans ‘protocol’ as mandatorily required in the case of State Vs. Imam Bukhsh (2018 SCMR 2039) is beside the point and so is reference to Rule 6 of the Control of Narcotic Substance (Govt. Analysis) Rules, 2001, for the convenience of reference reproduced below:- “Report of result of test or analysis.—After test or analysis the result thereof together with full protocols of the test applied, shall be signed in quadruplicate and supplied forthwith to the sender as specified in Form-II.” The above requires reference to the test applied for analysis, specifically mentioned in Form-II thereof. We have perused the forensic report, relied upon by the prosecution, which substantially meets the legal requirements, in the following terms:- “Test Performed on Received Item(s) of Evidence 1. Analytical Balance was used for weighing. 2. Chemical Spot Tests were used for Presumptive Testing. 3. Gas Chromatography-Mass Spectrometry was used for confirmation. Results and Conclusions Item # 01 72.87 gram(s) of blackish brown resinous material in sealed parcel contains Charas.” Details mentioned in the forensic report regarding procedure/ tests applied do not fall short of ‘protocol’ as insisted by this Criminal Petition No.370 of 2019 3 Court in the supra case. According to the Oxford English Dictionary, 6th Edition, the expression ‘protocol’ in relation to a forensic test means:- “A formal or official statement of a transaction or proceeding; spec. a record of (esp. scientific) experimental observations”. Forensic report (Ex.PE) realistically qualifies to meet the required standards. Even otherwise, the Rule ibid, being directory in nature, does not preclude an accused to summon the Expert so as to solicit specific details, if any, required by him to vindicate his position. Onus cast upon the prosecution to drive home a criminal charge has to be weighed in the scales of rationality; it cannot be required to satisfy adversarial positions farfetched and artificial in nature, rooted into bald denials, clamoured loudly. Findings concurrently arrived by the Courts below, being well within the remit of law, do not call for interference. Petition fails. Leave declined. Judge Judge Islamabad 9th January, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mushir Alam Mr. Justice Yahya Afridi Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition Nos.371 to 373 & 680 of 2020 (Against the judgment dated 2.4.2020 passed by the High Court of Sindh at Karachi in Special Criminal Anti Terrorism Appeal Nos.66, 67 of 2002 and confirmation case No.12 of 2002) AND Crl. M.A. No.37-K & 38-K of 2020 in Crl.Ps. NIL/2020 (Permission to file and argue) The State through P.G. Sindh (in Crl. P. Nos.371 to 373/2020) Ruth Pearl & another (in Crl. M.A. Nos.37-K & 38-K/2020) Ahmad Omer Shaikh (in Crl. P. No.680/2020) …Petitioner(s) Versus Ahmed Omer Shaikh (in Crl. P. No.371/2020) Fahad Nasim Ahmed & others (in Crl. P. Nos.372 & 373/2020) The State, etc. (in Crl. M.A. Nos.37-K & 38-K/2020) The State through P.G. Sindh (in Crl. P. No.680/2020) ….Respondent(s) For the Petitioner(s): Mr. Farooq H. Naek, Sr.ASC assisted by Dr. Faiz Rasool, Prosecutor General Sindh Usman Walid Sheikh, Advocate Mr. Hussain Bux Baloch, ADDL. P.G. Sindh Mr. Adnan Shuja Butt, ASC Mr. Muhammad Kassim Mirjat, AOR (in Cr.P. Nos.371 to 373/2020) Mr. Faisal Siddiqui, ASC assisted by Sheza Ahmed, Advocate (in Cr.M.A. Nos.37-K & 38-K/2020) Nemo. (in Cr.P. No.680/2020) For the Respondent(s): Nemo. (in Cr.P. Nos.371 to 373/2020 & Cr.M.A. Nos.37-K & 38-K/2020) Date of hearing: 28.09.2020. Criminal Petition Nos.371 to 373 & 680 of 2020 and Crl. M.A. No.37-K & 38-K of 2020 in Crl.Ps. NIL/2020 2 ORDER Qazi Muhammad Amin Ahmed, J.- Criminal Petition Nos.371 to 373 of 2020 Daniel Pearl, Bureau Chief of the Walls Street Journal, a U.S. national, hereinafter referred to as the deceased, deputed on some assignment in Pakistan, went missing on the 23rd of January, 2002; disappearance was reported with Police Station Artillery Maidan South Karachi by his wife Ms. Mariane Pearl at 11:45 p.m. on 4.2.2002. According to the complainant, Nasir Abbas (PW-1), a cab driver, informed her to have last dropped the deceased in front of “Village Restaurant” Karachi Saddar; she received an email dated 27th of January, 2002, with the photographs of her husband, enchained by his captors; they laid the following demands: “(A) The provision of Lawyers to Pakistanis detained in US. (B) The release of Pakistanis, jailed in CUBA to Pakistan. (C) The return of former TALIBAN AMBASSADOR MULLA ZAEEF, to Pakistan, and (D) The return of F-16 FIGHTER JETS to Pakistan or The repayment of money, allocated for those F-16 JETS, as well as 15% interest.” On 30th of January, 2002, the captors threatened to murder the hostage in case their demands were not met within next 24 hours. As the deadline expired without concession, the deceased was beheaded; to the horror of the viewers; graphic details of the episode, recorded by a video camera, were subsequently released to go viral. 2. As the investigation progressed, 11 suspects were arrayed as culprits for the crime; of them, Amjad Hussain Farooqi alias Haider Farooqi alias Hassan Mansoor, Asim alias Qasim, Hashim alias Arif, Hassan, Ahmad Bhai and Imtiaz Siddiqui along with an unknown companion, yet to be identified, stayed away from law whereas Ahmad Omar Sheikh, Sheikh Muhammad Adil, Syed Salman Saqib and Fahad Naseem respondents, were arrested and ultimately indicted before an Anti Terrorism Court at Karachi. The prosecution relied upon various pieces of circumstantial evidence that included confessional statements of the two accused as well to drive home the charge, on the basis whereof, the learned trial Judge vide judgment dated 15.7.2002 convicted the respondents under sections 120-A, 365-A, 302 of the Pakistan Penal Code, 1860 read with section 6(a) of the Anti Terrorism Act, 1997; under section 7 of the Act ibid, Ahmad Omar Sheikh, respondent, was sentenced to death whereas the remainders to imprisonment for life with fine Criminal Petition Nos.371 to 373 & 680 of 2020 and Crl. M.A. No.37-K & 38-K of 2020 in Crl.Ps. NIL/2020 3 of Rs.500,000/- or five years imprisonment in default of payment thereof; they were jointly liable to pay Rs.20,00,000/- (equal share) to the widow of the deceased; the lifers were extended benefit of section 382-B of the Code of Criminal Procedure, 1898. However, a learned Division Bench of the High Court of Sindh, while altering conviction of Ahmad Omar Sheikh under section 362 of the Code ibid with sentence of 7-years rigorous acquitted the respondents from the remainder charges vide impugned judgment dated 02.04.2020, vires whereof, are being assailed by the State through Criminal Petition Nos.371, 372 & 373 of 2020; parents of the deceased also questioned the impugned acquittals through Criminal Misc. Application Nos.37-K & 38-K of 2020 whereas Ahmad Omar Sheikh, convict, filed Criminal Petition No.680 of 2020 to assail his conviction and sentence on the solitary charge. 3. Mr. Farooq H. Naek, Sr.ASC, designated by the Government of Sindh to argue the case, contends that with a web of circumstances, inescapably implicating the respondents with the commission of a crime, most shocking, there was hardly an occasion to acquit them from the charge, particularly when the High Court itself maintained conviction and sentence on the charge of abduction qua Ahmad Omar Sheikh, recorded by the learned trial Court alongside coordinate charges. It is next argued that various incriminating pieces of evidence established, both through physical as well as scientific means, constituted uninterrupted/ continuous chain that inexorably linked the deceased with the respondents and their absconding colleagues; according to him, forensic evidence, generated without any possibility of human interference, conclusively proved the homicidal death subsequent to deceased’s abduction, a charge upheld by the High Court itself, for purposes having strong nexus with terrorism and, thus, acquittal from the coordinate charges was not a possible option through any mode of appraisal of evidence. According to the learned counsel, the prosecution successfully proved the conspiracy hatched at Rawalpindi on 11.01.2002, whereby the deceased was induced to have his desired meeting with one Syed Mubarak Ali Shah Jeelani and it was in this backdrop that he was subsequently ensnared fatally at Karachi on a point of time, confirmed by one of the prosecution witnesses. He further contends that in the contextual backgrounds, relevant witnesses identified Ahmad Omar Sheikh respondent whereas the source generating the emails was reached out through forensic means, additionally associating internet service providers Criminal Petition Nos.371 to 373 & 680 of 2020 and Crl. M.A. No.37-K & 38-K of 2020 in Crl.Ps. NIL/2020 4 who appeared before the Court to successfully face the test of cross- examination. The learned counsel has referred to the testimonies of Ronal Joseph, technical expert, joined John Mulligan (PW-12), both F.B.I. agents to bring on record the details of forensic proofs. Recovery of digital apparatus i.e. laptop, scanner, polaroid as well as zoom cameras, used by the accused to communicate with the deceased’s family, established a continuous chain of circumstances unmistakably pointed upon the culpability of the accused, additionally reinforced by the confessional statements of the two accused, leaving no space for the High Court to entertain any hypothesis other than respondents’ guilt, concluded the learned counsel. Mr. Faisal Siddiqi, ASC, while appearing on behalf of deceased’s parents, reiterated most of the submissions earlier addressed; he additionally argued that sentence awarded to Ahmad Omar Sheikh under a penal provision though cited erroneously as section 362 of the Code ibid, nonetheless, irresistibly suggested that the High Court, being convinced about the abduction of the deceased, had convicted and sentenced the respondent on the said charge, driven home through various pieces of evidence that equally encompassed the concomitant conclusion of the crime and as such the impugned view was not only self-destructive but impossible as well and, thus, warrants interference to avoid miscarriage of justice. 4. Leave to appeal is granted, inter alia, to re-appraise the evidence so as to consider the above contentions. Cr.M.A. No.481 & 483 of 2020 in Cr.P. Nos.371, and 372 of 2020 5. Through the captioned criminal miscellaneous applications, the State has prayed for suspension of the impugned judgment so as to hold in abeyance respondents’ release during the pendency of the appeal. Notice shall issue to the respondents. Till the next date of hearing, the respondents shall not be released from the prison. Criminal Petition No. 680 of 2020 6. Ahmad Omar Sheikh, convict, has assailed his conviction and sentence under section 362 of the Pakistan Penal Code, 1860 through the captioned petition; his learned counsel Mr. Mahmood A. Sheikh, Sr.ASC, reportedly indisposed, is not in attendance, however, in order to ensure safe administration of criminal justice, we are inclined to grant leave in the Criminal Petition Nos.371 to 373 & 680 of 2020 and Crl. M.A. No.37-K & 38-K of 2020 in Crl.Ps. NIL/2020 5 titled petition with a view to consider as to whether after en bloc acquittal of the co-accused and rejection of bulk of prosecution’s evidence, the High Court was still justified to convict and sentence the petitioner in isolation to the totality of charge. Crl. M.A. No.37-K & 38-K of 2020 in Crl.Ps. NIL/2020 7. Deceased’s parents have filed separate petitions to question respondents’ acquittal, though maintainable in view of section 25 (4A) of the Anti Terrorism Act, 1997, nonetheless, since leave has already been granted to the State to examine the same questions, the criminal miscellaneous applications are allowed; office is directed to number these petitions and club the same with Cr. Petition Nos.371 to 373 of 2020 with opportunity to the learned counsel to canvass his point of view as well. 8. Re-list on 7.10.2020. Judge Judge Judge Islamabad, the 28th September, 2020 Not approved for reporting Azmat/-

                                                                                                                                                          1 Crl.P.L.A. No. 382/2016                                                                                                                                                                                                                                                                                              2 Crl.P.L.A. No. 382/2016                                                                                                                                                                                                                                                                                                                                                                                                                                   3 Crl.P.L.A. No. 382/2016                                          "For the reasons to be recordedm, the petitioners are granted bail in case FIR No.875 dated 7.11.2015, PS Dawoodzai, Peshawar, subject to furnishing sureties in the sum of Rs.2,00,000/- each and P.R. Bonds in the like amount with two sureties each to the satisfaction of the trial Court. Petition is converted into appeal and allowed."                                              4 Crl.P.L.A. No. 382/2016

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE MUSHIR ALAM MR. JUSTICE SARDAR TARIQ MASOOD MR. JUSTICE AMIN-UD-DIN KHAN CRIMINAL PETITION NO.390-L OF 2021 Against the order dated 25.02.2021 passed by Lahore High Court, Lahore in Crl.Misc.-6413B/2021 Muhammad Qasim, etc …Petitioner(s) VERSUS The State, etc …Respondent(s) For the Petitioner(s): Mr. Rashad Javid Lodhi, ASC For the State: On Court call: Mr. M. Usman, DPG Pb. M. Rafique, ASI Syed Ali Sibtain, Drug Inspector Ali Raza, IO Mr. Sajid Ilyas Bhatti, Addl. AGP Rana Arif Kamal Noon, PG Pb. Mr. Naveed Anwar, Drug Controller Rwp. Date of Hearing: 11.06.2021 O R D E R MUSHIR ALAM, J.— From the record, it appears that there is some confusion and even the matter has been adjourned a number of time to seek assistance from the learned Attorney General for Pakistan as well as the learned Advocate General concerned as regard the regulatory framework for the alternate medicines, it is recorded with great concern and utmost dismay that neither the learned Additional Attorney General nor the concerned Advocate General or even the team of officers in attendance are clear in their minds as to how the alternate medicines are properly brought into regulatory framework and they vaguely are concerned as to manufacturing and import of such alternate medicines. When inquired as to whether such dispensers (Pensaris) and their sale points are registered?, more specifically inquired about such outlets situated at Abpara Market in Islamabad, which is a common sight, it is stated that they are neither enlisted nor inspected to their knowledge. They have put the responsibility on the task force constituted and comprises of selected officers from all the Provinces. None of the officers present in Court are aware of the responsibility as to who regulates such alternate medicines. 2. As regard the above matter, we direct the office to make a separate file, register it as Suo Motu Case and place the same before the Honourable Chief Justice for placing the same before an appropriate Bench to consider the regulatory framework for such alternate medicines, their dispensation either in raw form or in the form of finishing products so as to ensure that people are not haunted for being looted and harmed. There appears to be no awareness amongst the persons involved in dealing with such products at different levels. 3. Coming to the merits of the instant bail matter. It appears that the petitioners, Muhammad Qasim and Khurram Shahzad sons of Anwar-u-Haq, seek bail in Crime No.950/2020 dated 03.10.2020, for the offences under Sections 23 & 27 of the Drugs Act, 1976, Section 27-2 of the DRAP Act, 2012 and Section 109 PPC, registered at Police Station Toba Tek Singh, on the allegation of their involvement in manufacturing/stocking and selling the drugs/therapeutic goods in violation of the laws of the land. 4. Heard. Record perused. 5. Although the learned prosecutor states that the medicines in question fall within the definition of alternate medicines within contemplation of Section 2(ii) of the DRAP Act, 2012, yet the principal accused, Israr Ahmed has since been conceded bail. CP 390-L/21 -2- 6. Having gone through the available record, we find that the present petitioners are still on the better footing, therefore, following the rule of consistency, the petitioners are also conceded to bail subject to furnishing of solvent surety bonds to the tune of Rs.100,000/- (rupees one hundred thousand) each with one surety each to the satisfaction of the learned Trial Court. 7. Needless to state that any observation contained in this order is of tentative nature and the learned Trial Court shall decide the main case in accordance with law without being influenced from any observation contained therein. The petitioners are directed to extend full co-operation with the prosecution/investigation and in the proceedings regularly and in case any misuse and abuse of concession of bail is found on their part, the learned Trial Court is at liberty to cancel the petitioners’ bail. 8. The petition is converted into an appeal and allowed in the terms noted above. Judge Judge Judge ISLAMABAD 11th June, 2021 Mudassar/ “Not approved for reporting” CP 390-L/21 -3-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Umar Ata Bandial Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.391 of 2020 (Against judgment dated 6.4.2020 passed by the Peshawar High Court Bannu Bench, Bannu in B.A. No.138-B/2020) Shabran Khan …Petitioner(s) Versus The State & another …Respondent(s) For the Petitioner(s): Mr. Aftab Alam Yasir, ASC For the State: Mr. Anis M. Shahzad, ASC along with M. Asghar, I.O. Date of hearing: 06.05.2020. ORDER Qazi Muhammad Amin Ahmed, J.- Behind Bars since 30.12.2019, Shabran Khan, petitioner, seeks admission to bail; he is blamed to have conspired murder of Muhammad Iqbal, 48/49, on 27.10.2019 within the remit of Police Station University, Dera Ismail Khan. Deceased’s nephew attended the casualty in the hospital and conveyed information to his uncle Malik Muhammad Ismail who lodged formal First Information Report wherein Latifullah son of Allah Wasaya along with Saif-ur-Rehman Inspector and his brother Asghar were arrayed as suspects in the backdrop of a motive that related to attempts to take forcible possession of immovable property, a move fiercely resisted by the deceased. Abdul Latif and Asghar were arrested, however, subsequently released on bail as they were substituted by Dil Jan accused who allegedly admitted to have committed the murder along with one Inayat Ullah on petitioner’s direction with a .30 caliber pistol provided by him for the purpose. 2. Heard. Record perused. 3. Complainant restructured his case through statement dated 17.12.2019; Latifullah, Saif-ur-Rehman and Asghar, initial suspects, stood replaced with Inayatullah and Dil Jan being the alleged assassins. Aman Ullah is inducted as a facilitator on behalf of the Criminal Petition No.391 of 2020 2 petitioner, introduced as architect behind the crime with a motive. To frame the de novo set up, the Investigating Officer produced three witnesses before a Magistrate who recorded their statements pointed upon the accused. A .30 caliber pistol, licensed to Dil Jan accused, is part of prosecution inventories. It would be less than expedient to comment upon the merits of the prosecution case as its fate is to be essentially settled by the trial Court after recording of evidence, nonetheless, in the given backdrop, petitioner’s culpability as the man behind the scene certainly warrants further probe and as such his case squarely falls within the remit of subsection 2 of section 497 of the Code of Criminal Procedure 1898. Criminal Petition is converted into appeal and allowed. Petitioner is admitted to bail and shall be released upon furnishing bond in the sum of Rs.500,000/- with one surety in the like amount to the satisfaction of the learned trial Court/Duty Judge. Judge Judge Islamabad, the 6th May, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Sardar Tariq Masood Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.406 of 2017 (Against the judgment dated 24.02.2017 of the Lahore High Court, Rawalpindi Bench passed in Cr.A.404/2011 and MR No.66/2011) Noor Zaman …Petitioner(s) Versus The State …Respondent(s) For the Petitioner(s): Ch. Afrasiab Khan, Sr. ASC Sh. Ahsan ud Din, ASC Ch. Akhtar Ali, AOR For the State: Mr. Muhammad Jaffar, Addl. P.G. Punjab Date of Hearing 22.02.2022. JUDGMENT Qazi Muhammad Amin Ahmed, J.:- Muhammad Irfan, 50, along with his wife Rafia Begum, 45, was attending Khan Muhammad accompanied by his brother Fateh Muhammad inside his house located within the precincts of Police Station Saddar Talagang, at 6:30 p.m. on 12.3.2009 when Noor Zaman petitioner armed with a .30 caliber pistol surprised them; aggrieved over denial of some piece of land by Muhammad Irfan, no other than his real brother, the petitioner targeted him with repeated fire shots; Rafia Begum rushed inside a room to save herself, however, the petitioner followed and dealt her 5/6 fire shots; brandishing the weapon, he left the premises, followed by the witnesses, to come across Halima Bibi, 30/35, in the lane to confront his wrath, she was shot on different parts of her body. The petitioner took to the heels while the casualties were shifted to THQ Hospital Talagang; Rafia Bibi died at the spot, Muhammad Irfan succumbed to the injuries following day whereas Mst. Halima Bibi on 22.3.2009. Investigation commenced on the complaint of Khan Muhammad Criminal Petition No.406 of 2017 2 (PW-15). Inspection of crime scenes include seizure of blood from different points, forensically opined as of human origin; 12 casings collected from different points were found wedded with the pistol (P-6), recovered pursuant to a disclosure by the accused subsequent to his arrest on 5.5.2009. Upon indictment, the petitioner claimed trial; the learned trial Judge vide judgment dated 26.09.2011 returned a guilty verdict on three counts of homicide; convicted under clause (b) of section 302 of the Pakistan Penal Code, 1860, he was sentenced to death on each with a direction to pay compensation, confirmed/upheld vide impugned judgment dated 24.02.2017, leave to appeal wherefrom is being prayed on the grounds that colossal loss of lives, notwithstanding, there was no occasion for the trial Judge to convict the petitioner on capital charge with ultimate penalty in the absence of “proof beyond doubt” inasmuch as in the totality of circumstances neither there was any occasion for the witnesses to be at the spot nor they could escape unscathed as per case set up by the prosecution itself; it is next argued that dispatch of casings coincides with the date of petitioner’s arrest and as such positive forensic report cannot be viewed as a corroborative support. Motive was not put to the petitioner and it is so observed by the High Court itself and, thus, the failure of the prosecution on this count not only tremors the entire prosecution structure but also constitute a mitigating circumstance to alter penalty of death into imprisonment for life, concluded the learned counsel. The learned Law Officer has faithfully defended the impugned judgment; he argued that occurrence, a daylight affair, in a small hamlet, the preponderance of prosecution evidence left no space to entertain any hypothesis other than petitioner’s guilt. An inconsequential omission regarding the motive does not mitigate enormity of offence that cost three innocent persons their lives, two in their prime youth, over a petty cause. 2. Heard. Record perused. 3. Misfortune struck close members of the family; Muhammad Irfan deceased was real brother of the petitioner whereas his wife Rafia Bibi, a sister-in-law; third victim Haleema Bibi, being wife of Muhammad Zaman, is related with the deceased in the same degree; litigation raging between the petitioner and Muhammad Irfan heavily cost the family, division wherein is an obvious aftermath. On Criminal Petition No.406 of 2017 3 the other side of the divide, Khan Muhammad (PW-15) and Fateh Muhammad (PW-16), real brothers inter se are, nonetheless, members of the same clan; both of them pointed their fingers singularly upon the petitioner as being the sole perpetrator of the crime. We have gone through their statements to find them in a comfortable unison on all the salient details of the occurrence as well as issues collateral therewith; being resident of the same neighbourhood, their presence cannot be doubted merely on the ground that Fateh Muhammad (PW-16) was busy in the marriage ceremony of his son on the fateful day and, thus, according to the learned counsel, had no occasion to visit the deceased. The learned counsel has taken us through a portion of cross-examination, best viewed as half cooked inasmuch as it sans relevant timing and details regarding the marriage ceremony so as to entertain hypothesis of his exclusion from the scene. Similarly, old age and weak eye sight with frail health do not reflect upon his credentials as a truthful witness at the age of 65 to hypothesize mistaken identity of a close relative, figuring singularly on the scene. Preponderance of ocular account, being consistent with medical evidence and durations given therein, in itself constitute “proof beyond doubt” inescapably pointed upon petitioner’s culpability. Proved to the hilt, it is an open and shut case. Petitioner’s plea that the deceased fell victim to celebratory fires in the marriage ceremony is a story too preposterous to find a buyer given the points dead bodies were found during the spot inspection, locations confirmed through seizure of blood. Alternate plea of lesser penalty in view of omission to put motive to the accused in his examination under section 342 of the Code of Criminal Procedure, 1898 or dispatch of casings on the day of petitioner’s arrest are the issues entirely beside the mark. Examination of accused under section 342 of the Code is not a dogmatic ritual involving vitiating impact; the fundamental purpose of such examination is to enable the accused to explain any circumstance appearing in the evidence against him and that may be done at any stage of inquiry or trial without previous warning and the accused is under no obligation even to respond to that; it is essentially a communication between accused and the Judge. The underlying purpose is not to take the accused by surprise; he must be aware of the accusation and material being adduced in support thereof. The record shows that the petitioner was fully aware of the motive set up by the prosecution; his counsel specifically cross-examined the Criminal Petition No.406 of 2017 4 witnesses about the ongoing dispute. See Khan Muhammad (PW-15), “…….there was no dispute of Haleema with Noor Zaman accused in any capacity. Rafia deceased had no litigation with Noor Zaman in an independent capacity but her husband Irfan was in litigation with Noor Zaman accused. During the whole investigation, we never produced any document relating to the litigation between Noor Zaman and Muhammad Irfan deceased. During the investigation, no disputed land between Noor Zaman accused and Irfan deceased was shown to the I.O. ……. I do not know the nature of dispute between accused and Muhammad Irfan deceased”. Similarly, while cross- examining Fateh Muhammad (PW-16), the witness responded to a query regarding motive “It was in my knowledge that there was litigation between Irfan and Noor Zaman. We did not give any copy of the litigation to the police during investigation.” Thus, it is not open to the defence that the petitioner did not know as to why he was in the dock. It is high time to get out of the quagmire of hyper technical past so as to adopt a more realistic and dynamic approach to ensure an effective administration of criminal justice, a sine qua non to maintain peaceful equilibrium in the society; an inconsequential lapse or failure to observe a procedural formality without causing prejudice or handicap to an accused in his defence cannot be allowed to deny justice to the victim of crime. Similarly, presumption of genuineness is attached to the official acts both under article 129 (e) of the Qanun-i-Shahadat Order, 1984 as well as under Article 150 of the Constitution of the Islamic Republic of Pakistan, 1973, supreme law of the land and, thus, in the absence of a positive proof to the contrary, pleaded specifically, a delayed dispatch by itself cannot be viewed with suspicion. Three innocent persons including two women in their prime youth have been done to death with repeated fire shots, two in the safety of their home, in a manner most callous and brute, thus, the wage settled is conscionable in circumstances; scales are in balance. No interference is called for. Petition fails. Leave declined. Judge Judge Judge Islamabad, the 22nd February, 2022 Azmat/-

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE YAHYA AFRIDI MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI MR. JUSTICE MUHAMMAD ALI MAZHAR CRIMINAL PETITION NOs. 41-K & 42-K OF 2023 (On appeal against the order dated 30.01.2023 passed by the High Court of Sindh, Sukkur in Crl. Bail Application Nos. S- 678/2022 & S-32/2023) Jamaluddin Rabail (In Cr.P. 41-K/2023) (In Cr.P. 42-K/2023) … Petitioners Versus The State (In both cases) … Respondent For the Petitioners: Mr. Zuber Ahmed Rajput, ASC a/w Jamaluddin, petitioner in person (Via video link from Karachi) For the State: Mr. Hussain Bukhsh Baloch, Addl. P.G. Sindh Date of Hearing: 29.05.2023 ORDER SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through the instant petitions under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have assailed the order dated 30.01.2023 passed by the learned Single Judge of the learned High Court of Sindh, Bench at Sukkur, with a prayer to grant pre-arrest bail (in Criminal Petition No. 41- K/2023) and post-arrest bail (in Criminal Petition No. 42-K/2023) in case registered vide FIR No. 317/2022 dated 21.11.2022 under Sections 324/148/149 PPC at Police Station Shaheed Murtaza Meerani, Khairpur, in the interest of safe administration of criminal justice. 2. Briefly stated the allegation against the petitioners is that they along with co-accused while armed with firearms launched a murderous assault on the complainant party. The petitioner Rabail made a straight fire on the complainant Kaleemullah, which hit on his left leg whereas the petitioner Jamaluddin caused firearm injury at the left ankle of Muhammad Pariyal, cousin of the complainant. CRIMINAL PETITION NOs. 41-K & 42-K OF 2023 2 3. At the very outset, it has been argued by learned counsel for the petitioners that the petitioners have been falsely roped in this case against the actual facts and circumstances. Contends that the allegations leveled against the petitioners are false, frivolous, baseless, concocted and the prosecution story is not worthy of credit. Contends that there is an inordinate delay of three days in lodging the FIR for which no explanation has been given. Contends that injuries sustained by the complainant are on non-vital parts of the body, as such, the provision of Section 324 PPC is not attracted in the case. Contends that the learned High Court while declining bail to the petitioners has not followed the guidelines issued by this Court for the safe administration of criminal justice, therefore, the same may be set at naught and the petitioners may be granted bail. 4. On the other hand, learned Law Officer opposed the petitions by contending that the petitioners have specifically been nominated in the crime report with a specific role of firing at the complainant and injured PW, therefore, they do not deserve any leniency from this Court 5. We have heard learned counsel for the parties at some length and have perused the available record with their able assistance. 6. As per the contents of the crime report, the allegation against the petitioners is that they along with co-accused while armed with firearms launched a murderous assault on the complainant party. The petitioner Rabail made a straight fire on the complainant Kaleemullah, which hit on his left leg whereas the petitioner Jamaluddin caused firearm injury at the left ankle of Muhammad Pariyal, the cousin of the complainant. There is no denial to this fact that the FIR was lodged after an inordinate delay of about three days. The only explanation put forth by the complainant is that firstly they got the Police letter for treatment from Civil Hospital and after the treatment they lodged the FIR. However, this explanation does not seem to be impressive, especially when the Police was allegedly approached by the complainant on the very first day. The complainant and the injured PW received injuries on the non-vital CRIMINAL PETITION NOs. 41-K & 42-K OF 2023 3 parts of the body and the petitioners did not repeat the fire despite having ample opportunity to do so. In this view of the matter, the question whether Section 324 PPC would be applicable in the case or not would be determined by the learned Trial Court after recording of evidence. As far as the question which requires the attention of this Court is that petitioner Jamaluddin has been granted ad interim pre-arrest bail by this Court whereas the other petitioner Rabail has filed petition claiming post-arrest bail. As far as the principle enunciated by this Court regarding the consideration for grant of pre-arrest bail and post-arrest bail are entirely on different footings is concerned, we have noticed that in this case both the petitioners are ascribed the same role. For the sake of arguments if it is assumed that the petitioner enjoying ad interim pre-arrest bail is declined the relief on the ground that the considerations for pre-arrest bail are different and the other is granted post-arrest bail on merits, then the same would be only limited upto the arrest of the petitioner Jamaluddin because of the reason that soon after his arrest he would be entitled for the concession of post-arrest bail on the plea of consistency. Reliance is placed on the cases reported as Muhammad Ramzan Vs. Zafarullah (1986 SCMR 1380), Kazim Ali and others Vs. The State and others (2021 SCMR 2086), Muhammad Kashif Iqbal Vs. The State and another (2022 SCMR 821) and Javed Iqbal Vs. The State through Prosecutor General of Punjab and another (2022 SCMR 1424). The Courts of this country are not meant to send the people behind the bars rather the purpose of the entire judicial system is to protect the liberty of the citizen against whom baseless accusation has been leveled keeping itself within the four corners of the law. The rational behind this principle would be defeated if on a technical ground a person is sent behind the bars. In Sharaf Faridi Vs. Federation of Pakistan (PLD 1989 Karachi 404) it was held that “Judiciary has been termed as a watch dog and sentinal of the rights of the people and the custodian of the Constitution. It has been described as "the safety valve" or "the balance wheel" of the Constitution.” It was further held that Judiciary as the custodian of the fundamental rights has been charged with a duty as a watch dog to see that none of the fundamental rights of the CRIMINAL PETITION NOs. 41-K & 42-K OF 2023 4 people are abridged or taken away. This court in a number of cases has held that liberty of a person is a precious right, which has been guaranteed under the Constitution of Islamic Republic of Pakistan, 1973, and the same cannot be taken away merely on bald and vague allegations. Taking into consideration all the facts and circumstances stated above, we are of the view that the case of the petitioners squarely falls within the ambit of Section 497(2) Cr.P.C. entitling for further inquiry into their guilt. 7. For what has been discussed above, we convert these petitions into appeals, allow it and set aside the impugned order. The ad interim pre-arrest bail granted to the petitioner Jamaluddin in Criminal Petition No. 41-K/2023 by this Court vide order dated 17.04.2023 is hereby confirmed. Whereas petitioner Rabail is admitted to bail subject to his furnishing bail bonds in the sum of Rs.100,000/- with one surety in the like amount to the satisfaction of learned Trial Court. JUDGE JUDGE JUDGE Islamabad, the 29th of May, 2023 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Gulzar Ahmed, HCJ Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.419 of 2020 (Against the order dated 13.04.2020 passed by the Islamabad High Court Islamabad in Cr. M. No.225/B of 2020) Saddam Hussain …Petitioner(s) Versus The State through A.G. Islamabad and another …Respondent(s) For the Petitioner(s): Mr. Muhammad Ilyas Siddiqui, ASC For the State: Mr. Niaz Ullah Niazi, A.G. Islamabad Mr. Amir Zulfiqar, I.G. Police Islamabad Syed Waqar ud Din, D.I.G. Operations Mr. Kamran Adil, A.I.G. Establishment Tasadduq Hussain, Inspector/I.O. Asjad Mehmood, SHO P.S. Koral For the Complainant: Raja Muhammad Farooq, ASC Syed Rifaqat Hussain Shah, AOR Date of hearing: 12.05.2020. ORDER Gulzar Ahmed, CJ.- The Inspector General of Police, Islamabad has appeared before the Court. He has stated that there are other complaints against the Investigating Officer, Tasadduq Hussain and the same are being dealt with by his office. He has assured the Court that he will examine the case in hand also, and in case I.O., Tasadduq Hussain is found to have committed negligence or has misconducted himself, he will be proceeded against departmentally and the matter will be taken to the logical conclusion. It was emphasized by the Court to the IG Police that investigation of a crime is a specialized subject in which the investigation officers are required to be fully trained and equipped, and in this regard the Police Training Centre Criminal Petition No.419 of 2020 2 should take services of qualified professionals for imparting professional training to the investigation officers. A handbook of the crime investigation, based upon previous experiences, illustrations, practical applications and case-law developed by the superior Courts of Pakistan should be prepared immediately with knowledge of using of investigation kits and preparing a computerized data of the crime. Such handbook of investigation should be immediately prepared but not later than 6 months from today, and it should be made available to each of the investigation officers, who are responsible for investigating the crime. The handbook on investigation shall be updated every year and new experiences shall be added along with latest case-law given by the superior Courts. New investigation tools shall be added in every new edition, to be issued every year on 1st of July. A copy of such investigation handbook shall be provided by the IG Police, Islamabad to the Registrar of this Court for our examination in chambers. 2. At the same time we are sanguine that the IG Police, Islamabad shall take all measures to improve the quality of working of Islamabad Police, overall in general and in the matter of investigation in particular, and he shall also ensure that proper law and order situation prevails in Islamabad Capital Territory, and the life and properties of the people are safeguarded and protected, and the criminals are taken to task in accordance with law. No amount of negligence in this regard should be tolerated and if any body in police department is found neglecting his duties, he should immediately be dealt with and if found guilty, appropriate penalty be imposed upon him. If any police official is found indulging in criminal activities, the criminal case shall also be registered against him, besides, taking departmental action against such police official. Criminal Petition No.419 of 2020 3 3. We may emphasize that it is the constitutional right of the people that their life and properties are saved and protected by the State and such State functionaries include the police officials. 4. Copy of this order be sent to IG Police of all the four Provinces and Gilgit Baltistan for implementation of above directions. 5. After arguing the matter at some length, Mr. Muhammad Ilyas Siddiqui, learned counsel for the petitioner seeks to withdraw this criminal petition in order to file a fresh bail application after final Challan is submitted by the police in the trial Court. Dismissed as such. Chief Justice Judge Islamabad, the 12th May, 2020 Not approved for reporting Ghulam Raza/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.42-P of 2018 (Against the judgment dated 25.01.2018 passed by the Peshawar High Court Peshawar in Cr. A. No.446-P/2014) Mst. Naseem …Petitioner(s) Versus Farhad Khan and another …Respondent(s) For the Petitioner(s): Mr. Altaf Khan, AOR Mr. Muhammad Ajmal Khan, AOR For the State: Ms. Abida Safdar, Addl. Advocate General, KPK Date of hearing: 26.07.2021 ORDER Qazi Muhammad Amin Ahmed, J.- Respondent was tried by the learned Sessions Judge Peshawar for committing Qatl-i-Amd of Haris Abdullah, 18/20, no other than his only son on 2.10.2012 within the precincts of Police Station Hayatabad; the incident was reported by his wife Mst. Naseem Khan who witnessed the occurrence alongside her two sisters; no motive was cited in the crime report, however, in his retracted confessional statement, he blamed the deceased for inaptitude in his academic pursuits. Upon indictment, he claimed trial that resulted into his conviction under clause (b) of section 302 of the Pakistan Penal Code, 1860 vide judgment dated 28.6.2014; he was sentenced to imprisonment for life, however, the High Court after converting his conviction into clause (c) of section ibid reduced the sentence to the period already undergone by him vide impugned judgment dated 25.1.2018, being assailed by the State. 2. Ms. Abida Safdar, learned Additional Advocate General, Khyber Pakhtunkhwa, contends that the shocking case of filicide is an open and shut episode, admitting no space to treat the respondent with any degree of leniency; after taking us through the ocular account furnished by Mst. Naseem Khan and Salma Khan, respondent’s wife Criminal Petition No. 42-P/2018 2 and daughter respectively, the learned Law Officer read excerpts from respondent’s confessional statement to demonstrate that he had acted most callously and in a manner deliberate and calculated and, thus, there was no occasion for the High Court to overstretch his culpability into the remit of clause (c) of the section ibid; she next argued that the deceased in his prime youth was ‘Masoom-ud-Dam’ and his gruesome murder with five consecutive shots has inflicted indelible abiding trauma to his devastated sisters and mother and, thus, a proportionate sentence possibly presents them the only temporal solace; she next argued that the respondent contested the charge without remorse or regret and denied his culpability throughout and as such in the absence of any specific plea, High Court ran into grievous error to let him off with a brief period of incarceration which tantamount to denial of justice both to the deceased as well as the family. Contentions merit consideration; leave is granted to reappraise the entire evidence with a view to secure ends of justice. Send for the respondent through bailable warrants in the sum of Rs.200,000/-, returnable to the Assistant Registrar of this Court at Peshawar. Station House Officer shall execute the warrants within a fortnight. Judge Judge Peshawar, the 26th July, 2021 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, CJ MR. JUSTICE MIAN SHAKIRULLAH JAN MR. JUSTICE TASSADUQ HUSSAIN JILLANI MR. JUSTICE CH. IJAZ AHMED MR. JUSTICE TARIQ PARVEZ MR. JUSTICE ASIF SAEED KHAN KHOSA MR. JUSTICE KHALIL-UR-REHMAN RAMDAY Crl. Petition No. 426 of 2009 along with Crl. Appeal No. 383 of 2009 & Human Right Case No. 3200-G of 2009 Human Right Case No. 3742-P of 2009 Human Right Case No. 3928-P of 2009 Human Right Case No. 3887-P of 2009 Human Right Case No. 9778-P of 2009 Nazar Hussain (in Crl. P. 426 of 2009) Lal Muhammad (in Crl. A. 383 of 2009) … Petitioner/Appellant VERSUS The State … Respondent For the Petitioner: Ch. Afrasiab Khan, ASC. (in Crl.P. 426 of 2009) For the Appellant: Mr. Arshad Ali Chaudhry, AOR (in Crl.A. 383 of 2009) Amicus Curiae: Syed Iftikhar Hussain Gillani, Sr. ASC. Mr. Zulfiqar Khalid Maluka, ASC. For the State: Mr. Shah Khawar, D.A.G. Raja Abdul Ghafoor, ASC/AOR (on behalf of A.G. Sindh). Mr. Naveed Akhtar, Addl. A.G. NWFP. Mr. Muhammad Raza, Addl. A.G. Balochistan. Mr. Saeed Yousaf, Addl. A.G. Punjab. Raja Shahid Mehmood, D.P.G. Punjab. Date of Hearing: 01 & 02.04.2010 (Announced in Open Court on 11.08.2010) *-*-*-*-*-*-*-*-*-*-*-*-*-*-*-* Crl.P.No. 426 of 2009 & Crl. A. No. 383 of 2009 etc. 2 JUDGMENT TASSADUQ HUSSAIN JILLANI, J.- While hearing Crl. Petition No. 426 of 2009, a number of questions with regard to powers of the President under Article 45 of the Constitution to grant pardon and reprieve and the policy framed by the Government of Pakistan to grant remissions under the law came up for consideration. Vide order dated 10.09.2009, the Court framed following issues and notices were issued to the Deputy Attorney General and to the Advocate Generals of the four provinces:- i) Whether under Article 45 of the Constitution of Islamic Republic of Pakistan, the President enjoys unfettered powers to grant remissions in respect of offences and no clog stipulated in a piece of subordinate legislation can abridge this power of the President as held by this Court in Abdul Malik & others v. The State & others (PLD 2006 Supreme Court 365); ii) whether the policy formulated by the Government of Pakistan, Ministry of Interior, dated August, 2009 is in consonance with the judgment delivered by larger bench of this Court in case Shah Hussain v. The State (PLD 2009 Supreme Court 460); iii) whether the Prison Rules as enumerated are subservient to Article 45 and in case of any conflict between Prison Rules and above-referred judgments as well as special remissions under Article 45 of the Constitution and what would be the legal position of the said Rules; and iv) whether any classification would be permissible in view of the nature of Crl.P.No. 426 of 2009 & Crl. A. No. 383 of 2009 etc. 3 accusation in case special remission is granted by the President of Pakistan, in view of the provisions as enumerated in Article 25 of the Constitution. 2. Detailed arguments were addressed by Ch. Afrasiab Khan, ASC, learned counsel for the petitioner, Mr. Arshad Ali Chaudhry, AOR, learned Amicus curie M/s Syed Iftikhar Hussain Gillani, Sr. ASC and Zulfiqar Khalid Maluka, ASC as also by Mr. Shah Khawar, Deputy Attorney General, Raja Abdul Ghafoor, ASC/AOR appearing on behalf of A.G. Sindh, Mr. Naveed Akhtar, Addl. A.G. NWFP, Mr. Muhammad Raza, Addl. A.G. Balochistan, Mr. Saeed Yousaf, Addl. A.G. Punjab and Raja Shahid Mehmood, D.P.G. Punjab. 3. The first issue revolves round Article 45 and has been framed in terms as under:- Whether under Article 45 of the Constitution of Islamic Republic of Pakistan, the President enjoys unfettered powers to grant remissions in respect of offences and no clog stipulated in a piece of subordinate legislation can abridge this power of the President as held by this Court in Abdul Malik & others v. The State & others (PLD 2006 Supreme Court 365). 4. The head of the State is vested with similar powers in almost all constitutions of the World as provided in Article 45 of the Constitution of Islamic Republic of Pakistan. The issues of the extent of Presidential power under such a provision, the manner of its exercise and whether it is immune from challenge in a Court has been a subject of Crl.P.No. 426 of 2009 & Crl. A. No. 383 of 2009 etc. 4 debate both within the country and in jurisdictions across the frontier. Article 45 of the Constitution reads as under: - “The President shall have power to grant pardon, reprieve and respite, and to remit, suspend or commute any sentence passed by any court, tribunal or other authority.” 5. Every country recognizes and has, therefore, provided for this power to be exercised as an act of grace in proper cases. It is by now well recognized that “Without such a power of clemency to be exercised by some department or functionary of government, a country would be most imperfect and deficient in its political morality and in that attribute of deity whose judgments are always tempered with mercy.” (American Jurisprudence 2nd Edn. Page 5). The philosophy of this special dispensation as per Corpus Juris Secundum (Vol. 67-A) is that, “The pardoning power is founded on consideration of the public good and is to be exercised on the ground of public welfare, which is the legitimate object of all punishments, will be as well promoted by a suspension as by an execution of the sentences. It may also be used to the end that justice be done by correcting injustice, as where after discovered facts convince the official or board invested with the power that there was not guilt or that other mistakes were made in the operation or enforcement of the criminal law. Executive clemency also exists to afford relief from undue harshness in the operation or enforcement of criminal law. (1) Acts of leniency by pardon are administered by the executive Crl.P.No. 426 of 2009 & Crl. A. No. 383 of 2009 etc. 5 branch of the government in the interest of society and the discipline, education and reformation of the person convicted. (2) A pardon is granted on the theory that the convict has seen the error of his ways, that society will gain nothing by his further confinement and that he will conduct himself in the future as an upright, law-abiding citizen.” 6. The power of pardon enshrined in Article 45 of the Constitution has been subject of comment by this Court in Bhai Khan v. The State (PLD 1992 SC 14) and the view taken was reiterated in a latter judgment in Abdul Malik v. The State (PLD 2006 SC 365). In Bhai Khan Supra,, this Court was of the view as follows:- “…………it may be stated that the power under Article 45 of the Constitution being a constitutional power, is not subject to any limitations or conditions that may be found in the Pakistan Penal Code or the Code of Criminal Procedure. The exercise of the discretion by the President under Article 45 is to meet at the highest level the requirements of justice and clemency, to afford relief against undue harshness, or serious mistake or miscarriage in the judicial process, apart from specific or special cases where relief is by way of grace alone, as for instance to celebrate an event or when a new President or Prime Minister is installed, where relief or clemency is for the honour of the State………..(Emphasis is supplied). 7. If a sentence is commuted, it has the effect of substituting the sentence imposed by the court with that of the President or the Federal Government or the Provincial Government as the case may be. It does not, however, wash off the guilt or alter the judgment. If commutation order has Crl.P.No. 426 of 2009 & Crl. A. No. 383 of 2009 etc. 6 been passed during the pendency of the appeal of the convict, the court can still decide about the guilt or innocence of the accused. 8. In Abdul Malik’s case (PLD 2006 SC 365), while affirming the view already taken in Bhai Khan’s Supra case, this Court held that being a constitutional dispensation, this cannot be fettered by any legislative Act or instrument. It was observed as follows:- “The power of the President to grant pardon, reprieve or respite and to remit or suspend or commute any sentence is a power which is given to Heads of the States in most of the Constitutions of the world………… 24. the argument that the power of the President to grant pardon, reprieve, respite, remit, or suspend, or commute any sentence is subject to section 402, Cr.P.C. is not tenable and is not only against the constitutional mandate but also the scope of the afore-referred provision, section 402-C, Cr.P.C. reads as under:--- “402-C. Remission or commutation of certain sentences not to be without consent. Notwithstanding anything contained in section 401, section 402, section 402A or section 402B, the Provincial government, the Federal Government or the President shall not, without the consent of the victim or, as the case may be, of the heirs, suspend remit or commute any sentence passed under any section in Chapter XVI of the Pakistan Penal Code.” 25. It is a settled principle of constitutional interpretation that a provision enshrined in the Constitution shall prevail notwithstanding anything contrary contained in a piece of subordinate legislation.” 9. In the judgments of this Court to which reference has been made in the preceding paragraphs, although it was Crl.P.No. 426 of 2009 & Crl. A. No. 383 of 2009 etc. 7 held that the powers of the President in terms of Article 45 of the Constitution are unqualified, yet there was no comment on the manner in which the President has to exercise the power i.e. whether on the advice of the Prime Minister or in exercise of his discretionary powers under the Constitution. The manner of the exercise of various powers of the President is spelt out in Article 48 of the Constitution. Article 48(1) provides that in the exercise of his “functions”, the President shall act in accordance with advice of the Cabinet (or the Prime Minister). But this is qualified by proviso stipulated therein and to Sub Article (2). A reference at this stage to Article 48 of the Constitution would be in order:- “48. President to act on advice, etc. (1) In the exercise of his functions, the President shall act [on and] in accordance with the advice of the Cabinet, (or the Prime Minister) Provided that [within fifteen days] the President may require the Cabinet or, as the case may be, the Prime Minister to reconsider such advice, either generally or otherwise, and the President shall [within ten days] act in accordance with the advice tendered after such reconsideration. (2) Notwithstanding anything contained in clause (1), the President shall act in his discretion in respect of any matter in respect of which he is empowered by the Constitution to do so [and the validity of anything done by the President in his discretion shall not be called in question on any ground whatsoever]. (4) The question whether any, and if so what, advice was tendered to the President by the Cabinet, the Prime Minister, a Minister of State shall not be inquired into in, or by, any court, tribunal or other authority. (5) - - - - - - - (6) - - - - - - - (7) - - - - - - - ” Crl.P.No. 426 of 2009 & Crl. A. No. 383 of 2009 etc. 8 10. In Al-Jehad Trust v. Federation of Pakistan, (PLD 1997 SC 84) the issue of exercise of powers by the President under various provisions of the Constitution came under consideration and this Court held that depending on the manner of exercise of the authority, there are five distinct kind of powers which the President exercises. Those are:- “(i) The Articles under which actions are to be taken in accordance with the advice tendered by the Cabinet or Prime Minister; (ii) The Articles under which the Prime Minister’s advice is required but it will be binding if it is in accordance with the law declared by the Apex Court; (iii) The Articles which specifically provide for Prime Minister’s advice or consultation independent of clause (1) of Article 48, to which Articles, aforesaid Article 48(1) would not be attracted to; (iv) The Articles under which the President has been given discretionary power and, therefore, he can act without the advice of the Prime Minister by virtue of clause (2) of Article 48; (v) The nature of the functions/duties/rights provided in certain Articles is such which exclude the application of Article 48(1).” 11. The powers/actions of the President under Article 45 of the Constitution are part of his “functions” and are to be exercised in accordance with the advice of the Cabinet or the Prime Minister. 12. Sub Article (2) of Article 48 of the Constitution relates to the discretionary powers of President in which he is empowered to act, but there is no reference to the discretion of the President in Article 45 of the Constitution. Thus in the exercise of the powers under the later provision, he has to act Crl.P.No. 426 of 2009 & Crl. A. No. 383 of 2009 etc. 9 on the advice of the Prime Minister or the Cabinet. The exercise of the power under this provision, therefore, would not fall within the ambit of Article 48(2) of the Constitution. 13. The Rules of Business framed under Article 99 of the Constitution categorize list of cases requiring orders of the President on the advice of the Prime Minister and Item No. 25 pertains to the powers of the President under Article 45 of the Constitution. 14. Even in India, the exercise of the power of the President to grant pardon or reprieve is regulated and has to be on the advice tendered by the Council of Ministers. The analogous provision in the Indian Constitution is Article 72 which, inter alia, stipulates, “the President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence.” 15. In State of Punjab v. Joginder Singh (AIR 1990 SC 1396), it was held that, “the power under Art. 72 is absolute and cannot be fettered by any statutory provision such as Sections 432, 433 and 433A of Code of Criminal Procedure. This power cannot be altered, modified or interfered with in any manner whatsoever by any statutory provision and Prison Rules though the power has to be exercised on the advice of Council of Ministers.” 16. In England the power of pardon is a royal prerogative exercised on the advice of Home Secretary. “it is an executive act, but the Home Secretary is authorized by the Criminal Appeal Act, 1907, to refer a case to the Court of Crl.P.No. 426 of 2009 & Crl. A. No. 383 of 2009 etc. 10 Criminal Appeal, either for opinion or for final disposal as if it was an appeal. Ordinarily the power is exercised after sentence when there is some special reason why a sentence shall not be carried out; but a pardon also is available before conviction.” (R. V. Boyes (1861) 1 B&S 311). 17. In United States, the President enjoys this power in terms of Article II Sec. 2(1) of the Constitution which mandates that, “He (the President) shall have the power to grant reprieves and pardons for offences against the United States except in case of impeachment.” On the extent of this power and with reference to precedent case law from U.S., Durga Das Basu says, “the pardoning power may be exercised by him at any time after the offence has been committed, either before or after trial or conviction; and this power may not be limited by Congress, either as to persons or as to the effect of pardon. 18. The foregoing survey of the powers of clemency reposed in the Heads of State indicate that the constitution- makers deemed it proper to embed this provision in the constitution so as to place it at a higher pedestal than any other legislative or administrative Act or instrument. However, it needs to be emphasized that all public power which includes the constitutional power is a public trust and has to be exercised bona fidely, for public good and welfare. The considerations for public welfare may, inter alia, include discipline, education, reformation and equity. As aptly Crl.P.No. 426 of 2009 & Crl. A. No. 383 of 2009 etc. 11 commented in ‘Corpus Juris Secundum (Vol. 67-A) as follows:- “the pardoning power is founded on considerations of the public good, and is to be exercised on the ground that the public welfare, which is the legitimate object of all punishment, will be as well promoted by a suspension as by an execution of the sentence. It may also be used to the end that justice be done by correcting injustice, as where after-discovered facts convince the official or board invested with the power that there was no guilt or that other mistakes were made in the operation or enforcement of the criminal law. Executive clemency also exists to afford relief from undue harshness in the operation or enforcement of criminal law.” 19. The question whether being a public power, could it be subjected to judicial review, was considered by the Indian Supreme Court and it held that it was reviewable though on limited grounds. Reference is made to Epuru Sudhakar Vs. Government of A.P. (AIR 2006 SC 3385) & State of Bihar Vs. Madan Lal Jain (AIR 1982 SC 774). However, since it was not a moot point in the instant case, we would not like to dilate upon issue at this stage. 20. This brings us to second issue i.e. “Whether the policy formulated by the Government of Pakistan, Ministry of Interior, dated August, 2009 is in consonance with the judgment delivered by larger bench of this Court in case Shah Hussain v. The State (PLD 2009 Supreme Court 460).” 21. To appreciate the afore-referred issue, it would be necessary to keep in mind the ratio of the judgment in Shah Hussain’s case (PLD 2009 SC 460). This Court in the said case was primarily seized of a matter in which the convict Crl.P.No. 426 of 2009 & Crl. A. No. 383 of 2009 etc. 12 having been awarded life imprisonment on two counts was though granted the benefit of section 382-B Cr.P.C. by the High Court but it was held that he was not entitled to the remissions granted by the government for the period of detention prior to his conviction (Emphasis is supplied). The High Court in view of section 402-C Cr.P.C. also disallowed remissions of sixty days granted by a general order dated 5.1.2000 issued by the Government of Balochistan and section 401 Cr.P.C. as well as the remissions of one year granted by the President of Pakistan under Article 45 of the Constitution on the eve of Eid-ul-Fitr. The said judgment of the High Court was based on this Court’s judgment in Abdul Ali’s case (PLD 2005 SC 163), wherein it was held as follows:- “the conviction and sentence of an accused could not be made to run from the date prior to the date of conviction by a competent court although in certain eventualities the execution of sentence of a convict could be postponed. Ordinarily, a conviction commences from the time it is passed. A criminal Court does not possess any power to make a sentence to precede the conviction. In other words, the conviction and sentence cannot be ante- dated.” 22. This Court re-visited this judgment (Abdul Ali Supra) in Shah Hussain’s case (Supra), and while doing so, it considered a plethora of precedent case law both of this Court and also from abroad and came to the conclusion that refusal by the Court to allow remissions of pre-sentence custody period to convicts who have been granted benefit of Section 382-B Cr.P.C. amounted to deprivation of his liberty and was violative of the fundamental right of ‘right to life’ enshrined in Crl.P.No. 426 of 2009 & Crl. A. No. 383 of 2009 etc. 13 Article 9 of the Constitution. The judgment of the High Court refusing the relief (of remissions) in question on the basis of the law laid down in Abdul Ali’s case (Supra) was thus set aside. It noted with approval the broad principles laid down in several judgments of this Court and specific reference was made in Paras 20 to 25 of the judgment (Shah Hussain’s case, PLD 2009 SC 460). The Court also deprecated the denial of remissions to a category of convict / prisoners for the pre-sentence period, as arbitrary, devoid of reasonable classification and declared it violative of Article 25 of the Constitution at page 489 paragraph 39. It observed as follows: - 39. The under-trial prisoners, or criminal prisoners, particularly those who are later convicted of the offence in connection with which they were incarcerated, sooner or later join the ranks of convicted criminal prisoners. It is discriminatory not to treat them at part with their co-prisoners living in the same or similar premises, may be under the same very roof. They are equal before law and are entitled to equal protection of law under Article 25 of the Constitution. If remissions of the pre-sentence period were to be denied to the convicts after they were granted the benefit of section 382-B Cr.P.C., we would be confronted with a situation where remission granted on the eve of Eid would be admissible to a prisoner who was convicted a day before Eid, but not to a person who was convicted a day after Eid, though the two prisoners were on an equal footing two days before Eid, i.e., till then both of them were confined as under-trial prisoners and both of them also got the benefit of section 382-B, Cr.P.C. The classification of ‘criminal prisoners’ and ‘convicted criminal prisoners’ qua the admissibility of remissions granted by any authority where the Court has passed an order granting the benefit of section 382-B Crl.P.No. 426 of 2009 & Crl. A. No. 383 of 2009 etc. 14 Cr.P.C., does not meet the test of ‘intelligible differentia’ laid down in the case of I.A. Sharwani v. Government of Pakistan (1991 SCMR 1041). The under-trial prisoners getting the benefit of section 382-B, Cr.P.C., cannot be deprived of remissions accruing during their pre-sentence custody period. Article 9 of the Constitution guarantees the right to life of a person and is very much available to a prisoner alongwith certain other fundamental rights, such as to acquire, hold and dispose of property for the exercise of which incarceration can be no impediment, though he is deprived of certain fundamental freedoms like the right to move freely throughout the country or the right to practice a profession, etc., as it was held in the case of D.B.M. Patnaik v. State of A.P. (AIR 1974 SC 2092). Therefore, the protection guaranteed under Article 9 remains available to the under-trial prisoners and they are entitled to the benefit of section 382-B, Cr.P.C., along with remissions if any, granted during their pre-sentence custody period, inasmuch as on account of denial thereof, they would be required to remain in prison for a longer time that warranted and deprived of their liberty.” 23. In the light of the observations quoted in the preceding paragraphs, the Court concluded and directed as follows:- “(1) After the use of word “shall” for the word “may” in section 382-B Cr.P.C., at the time of passing the sentence, it is mandatory for the trial Court to take into consideration the pre- sentence custody period in the light of the principles discussed above; (2) The refusal to take into consideration the pre-sentence custody period at the time of passing the sentence is illegal inasmuch as if a Court sentences a convict to imprisonment for life, which is the alternate but maximum sentence for the offence of murder, but does not make allowance for the pre-sentence custody period, it would be punishing the convict prisoner with imprisonment for life plus the pre-sentence custody period, that is Crl.P.No. 426 of 2009 & Crl. A. No. 383 of 2009 etc. 15 to say, more than the maximum legal punishment; (3) The convict-prisoners who are granted the benefit of section 382-B Cr.P.C., shall be entitled to remissions granted by any authority in their post-sentence detention or during their pre-sentence detention in connection with such offence. However, the same shall not be available to the convicts of offences under the National Accountability Bureau Ordinance, 1999, Anti-terrorism Act, 1997, the offence of karo kari, etc, where the law itself prohibits the same; (4) the law laid down in Abdul Malik’s case that under Article 45 of the Constitution, the President enjoys unfettered powers to grant remissions in respect of offences and no clog stipulated in a piece of subordinate legislation can abridge this power of the President, is hereby reaffirmed.” 24. To determine whether the policy framed by the Government of Pakistan, Ministry of Interior in August 2009 is in consonance with the judgment in Shah Hussain’s case (Supra), a reference to the same would be in order:- “MOST IMMEDIATE No. D. 2792/2009-DS (Admn) Government of Pakistan Ministry of Interior Islamabad, the August, 2009 From: Mehir Malik Khattak, Deputy Secretary (Law), To: The Registrar, Supreme Court of Paksitan, Islamabad. Subject: GRANT OF REMISSION TO CONVICTS. Dear Sir, Kindly refer to Additional Prosecutor General Punjab letter dated 28.7.2009 on the subject noted above. 2. The President has been, in exercise of his power, under Article 45 of the Constitution, granted special remission in sentences on auspicious occasions of Eidain and Pakistan and Independence Day. However, in the past special remission under Article 45 of the Constitution had been granted at liberal scale. In one case, remission of 1/5th sentence was approved in one go which in case of lifers meant 5 years remission. The duration of remission in sentences was also increased arbitrarily from 2,3 or 6 months to one year. Crl.P.No. 426 of 2009 & Crl. A. No. 383 of 2009 etc. 16 3. In 2002, the then Government keeping in view the fluctuating discretionary behaviour during different years directed Ministry of Interior to formulate a policy limiting the discretionary. Accordingly, the MOI in consultation with Law & Justice Division and Chief Justice of Pakistan and with the approval of the President formulated the policy comprising of guidelines and remissions as under:- Guideline a. The present restrictive policy may continue. Those who indulge in heinous crimes should not benefit from these remissions. (Emphasis is supplied) b. Solemn occasions on which this remission may be granted should be specified and there should be no deviation from that. Such remissions may be awarded on four occasions during a year i.e. Eid-ul-Fitr, Eid Milad un Nabi, 23rd March and 14th August. c. Mercy petitions against death sentence may be dealt with on individual basis and there should be no general clemency. d. Overcrowding in jails should not be considered a valid ground for special remissions. The indiscriminate practice in the past has at times encouraged crimes, crowding the jails further subsequently. e. Federal and Provincial Governments may continue to exercise their power under the Pakistan Penal Code / The Code of Criminal Procedure / Pakistan Prison Rules 1978 in exercise of their best judgment that genuinely repentant and occasional criminals, who are victim of circumstances, benefit more from these remissions. Remission i. Special remission of 90 days to the prisoners convicted for life imprisonment except those convicted for murder, espionage, anti-state activities, sectarianism, Zina (Sec10 offence of Zina (Enforcement of Hudood) Ordinance, 1979 (also under Sec. 377 PPC), robbery (Sec. 394 PPC), dacoity (Sec. 395-396 PPC), kidnapping/abduction (Sec. 364-A & 365-A), and terrorist acts (as defined in the Anti-Terrorism (Second Amendment) Ordinance, 1999 (No. XIII of 1999). (Emphasis is supplied). ii. Special remission for 45 days to all other convicts except the condemned prisoners and also except those convicted or murder, espionage, subversion, anti-state activities, terrorist act (as defined in the Anti-Terrorism (Second Amendment) Ordinance, 1999 (No.XIII of 1999), Zina (Sec. 10 offence of Zina (Enforcement of Hudood) Ordinance, 1979 (also under Sec. 377 PPC), kidnapping/abduction (Sec. 364-A & 365-A), robbery (Sec. 394 PPC), dacoity (Sec. 395-396 PPC), and those undergoing sentences under the Foreigners Act, 1946. iii. Special remission at sub-paras i&ii above will be admissible provided that the convicts have undergone 2/3rd of their substantive sentence of imprisonment. iv. Total remission to male prisoners who are 65 years of age or above and have undergone at least 1/3rd of their substantive sentence of imprisonment, except those involved in culpable homicide. v. Total remission to female prisoners who are 60 years of age or above and have undergone at least 1/3rd of their sentence of imprisonment except those involved in culpable homicide. vi. Special remission of one year to female prisoners who have accompanying children and are serving sentence of imprisonment for crimes other than culpable homicide. vii. Total remission to juvenile convicts (under 18 years of age) who have served 1/3rd of their substantive sentence except those involved in culpable homicide, terrorist act, as defined in the Anti Terrorism (Second Amendment) Ordinance, 1999 (No. XIII of 1999), Zina (Sec. 10 offence of Zina (Enforcement of Hudood) Ordinance, 1979 (also under section 377 PPC) robbery (Sec. 394 PPC), dacoity (Sect. 395-396 PPC), kidnapping/abduction (Sec. 364-A & 365-A) and anti-state activities. viii. Those convicted in cases processed by NAB will not be entitled to any remission. 4. Since then the above policy has been enforced. However, in 2007, on the direction of Honourable Sindh High Court provisions regarding remission at sub-para viii above were deleted. Crl.P.No. 426 of 2009 & Crl. A. No. 383 of 2009 etc. 17 Yours faithfully, (Mehir Malik Khattak) Deputy Secretary Tele:9203851” 25. The moot point in Shah Hussain’s case (supra) was the judgment of the High Court wherein certain convicts/prisoners though granted the benefit of section 382- B Cr.P.C., but were refused remissions for the period preceding their date of conviction. [The High Court had relied on a judgment of this Court in Haji Abdul Ali v. Haji Bismillah (PLD 2005 SC 163)]. This Court in Shah Hussain supra case partly endorsed the policy and the classification made therein in so far as it was backed by law by observing, “However the same (remissions) shall not be available to the convicts of offences under the National Accountability Bureau Ordinance, 1999, Anti-terrorism Act, 1997, the offence of Karo Kari, etc., where the law itself prohibits that.” It was not brought to the notice of this Court in Shah Hussain’s case (PLD 2009 SC 460) that section 10(d) of the NAB Ordinance had been declared ultra vires by a full Bench of the Karachi High Court (PLD 2007 Kar 139). So the observation made qua inclusion of convicts under the NAB Ordinance be treated as per incuriam. In terms of the policy framed by the Ministry of Interior, Government of Pakistan, certain parameters/guidelines have been laid down for the grant of remissions under Article 45 of the Constitution. A class of convicts / prisoners have been excluded who are accused of “heinous offences” in the paragraph of “remissions” in the Crl.P.No. 426 of 2009 & Crl. A. No. 383 of 2009 etc. 18 policy letter reproduced in paragraph 24 above. The expression “heinous offences” has further been elaborated in the succeeding para i.e. that such remission would be available to those prisoners convicted for life imprisonment except those convicted for murder, espionage, anti-stage activities, sectarianism, Zina (sec10 offence of Zina (Enforcement of Hudood) Ordinance, 1979 (also under Sec. 377 PPC), robbery (Sec. 394 PPC), dacoity (Sec. 395-396 PPC), kidnapping/abduction (Sec.364-A & 365-A), and terrorist acts (as defined in the Anti-Terrorism (Second Amendment) Ordinance, 1999 (No. XIII of 1999)). An analysis of the afore- referred exclusions and the classification would show that the same are based on reasonable differentia and it is neither individual specific nor arbitrary. The classification made and denial of remissions to a class of convicts / prisoners is either backed by law or rule or there is an objective criterion. A breakup of the classification, the law or rules which may back this classification or the nature of heinousness of offence is given as follows: - Sr. No. Class of prisoners / convicts excluded Reason 1. Murder It is a heinous offence 2. 3. Espionage, Anti-State activities Rule 214-A of the Prisons Rules mandates as follows: - 214.A. – No person who is convicted for espionage or anti-state activities shall be entitled to ordinary or special remission unless other-wise directed by the Provincial Government. Crl.P.No. 426 of 2009 & Crl. A. No. 383 of 2009 etc. 19 4. Secretarianism 21F. Remission. – Notwithstanding anything contained in any law or prison rule for the time being in force, no remission in any sentence shall be allowed to person who is convicted and sentenced for any offence under this Act. 5. Zina/Rape Section 10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Though this provision has since been repealed (by Act VI of 2006), but a similar provision has been inserted through section 375 and 376 in PPC. It is a heinous offence. 6. 7. Dacoity (Sec 395-396 PPC) Kidnapping/ abduction These are heinous offences. 8. Anti Terrorism Act 21F. Remission. – Notwithstanding anything contained in any law or prison rule for the time being in force, no remission in any sentence shall be allowed to person who is convicted and sentenced for any offence under this Act. 26. The afore-referred chart indicates that the policy of remissions under consideration is neither arbitrary or discriminatory and is rather based on an intelligible differentia which is permissible and is therefore, not violative of Article 25 of the Constitution and the law laid down by this Court. 27. The third issue relates to the nature of the power of the competent authority under the Prison Rules for the Crl.P.No. 426 of 2009 & Crl. A. No. 383 of 2009 etc. 20 grant of remissions in juxtaposition to the powers of remissions under Article 45 and the issue framed is: “Whether the Prison Rules as enumerated are subservient to Article 45 and in case of any conflict between Prison Rules and above-referred judgments as well as special remissions under Article 45 of the Constitution and what would be the legal position of the said Rules”. 28. As explained in the preceding paragraphs, the pardoning powers of President under Article 45 of the Constitution are part of constitutional scheme and cannot be circumscribed by any subordinate legislation or executive instrument. In the event of conflict between the two, the former has to prevail. The policy of shortening of sentences through remissions is founded on the salutary principle of criminal justice i.e. that the purpose of punishment is both deterrent and remedial or reformative and that the convict be released by granting remission in sentence. Striking a healthy balance among these considerations has been one of the recurrent themes in the evolution of justice system. In ‘Salmond on Jurisprudence’ (12th Edition by P.J. Fitzgerald) the author in Chapter 15 dealt with the purpose of criminal justice/punishment as under:- “Deterrence acts on the motives of the offender, actual or potential; disablement consists primarily in physical restraint. Reformation, by contrast, seeks to bring about a change in the offender’s character itself so as to reclaim him as a useful member of society. Whereas deterrence looks primarily at the potential criminal outside the dock, reformation aims at the actual offender before the bench. In this century increasing weight has been attached to this aspect. Less frequent use of imprisonment, the abandonment Crl.P.No. 426 of 2009 & Crl. A. No. 383 of 2009 etc. 21 of short sentences, the attempt to use prison as a training rather than a pure punishment, and the greater employment of probation, parole, and suspended sentences are evidence of this general trend. At the same time, there has been growing concern to investigate the causes of crime and the effects of penal treatment……….The reformative element must not be overlooked but it must not be allowed to assume undue prominence. How much prominence it may be allowed, is a question of time, place and circumstance.” 29. The Remissions Rules framed under the Prisons Act are primarily based on the reformative principle. In terms of section 59 of the Prison Act 1894, the Provincial Government is empowered to make rules consistent with the provisions of the Act. Till the break up of the One Unit, the grant of remissions was being regulated by the West Pakistan Prisons (Remissions and Sentences) Rules 1965. However, after the creation of four Provinces, the Government decided to issue a Jail Manual to be followed in all the four Provinces. As the prisons Department was a Provincial subject, the Federal Government in a meeting of the Inspector Generals of Prisons/Directors of Prisons of all the provinces held on 12th of April, 1976, advised the provincial governments to adopt the Draft Manual as Rules to bring about uniformity in this domain. With previous sanction of the Federal Government, the Jail Manual was adopted to be called the Pakistan Prison Rules. Chapter 6 of those Rules pertains to the grant of remissions. The Chapter comprises of Rules defining certain expressions: explaining the remission system (Rule 199), classifies the nature of remissions i.e. ordinary or special Crl.P.No. 426 of 2009 & Crl. A. No. 383 of 2009 etc. 22 (Rule 200), cases in which no ordinary remission is earned (Rule 201) and exclusion of persons from grant of remissions if he/she is convicted of an offence after admission into a prison (Rule 202). Rule 140 lays down that imprisonment for life will mean 25 years rigorous imprisonment and every life prisoner shall undergo a minimum of 15 years of substantive sentence of imprisonment. It also stipulates that the cases of lifers shall be referred to the Provincial Government after they have served out 15 years of substantive imprisonment for consideration with reference to section 401 of the Code of Criminal Procedure. Rule 215 provides for remissions on account of education. Similarly, Rule 216 is relatable to special remissions to be granted by the Superintendent of Prisons, Inspector General of Police, Provincial Government and Federal Government. The law on remissions both in Pakistan and India puts a limit on the total remissions that can be availed of by a convict undergoing life sentence. Rule 217 of Pakistan Prison Rules reads as follows: - “Rule 217.—(i) The total remission, both ordinary and special awarded to a prisoner under these Rules (other than remission for donating blood awarded under rule 212, surgical sterilization under rule 213 and for passing an examination under rule 215) shall not exceed one-third of his sentence: Provided that Government may, on the recommendation of the Inspector-General, grant remissions beyond the one-third limit in very exceptional and deserving cases. (ii) Remission, both ordinary and special, earned by a lifer convict shall be so much that a sentence of imprisonment for life is not shortened to a period of imprisonment less than 15 years.” Crl.P.No. 426 of 2009 & Crl. A. No. 383 of 2009 etc. 23 30. Sub-rule (ii) of Rule 217 in Pakistan Prison Rules reproduced in the preceding para is almost similar in import to section 433-A of the Indian Criminal Procedure Code which is as follows:- “433-A. Restriction on powers of remission or commutation in certain cases.----Notwithstanding anything contained in Sec. 432, where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or where a sentence of death imposed on a person has been commuted under Sec. 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment.” 31. In Indian Prisons Rules, there was no provision similar to Sub-rule II of Rule 217 reproduced in para 26 above. The issue of conflict between the Prisons Rules and Section 433-A Cr.P.C stipulating that a person undergoing life sentence (punishable with capital punishment) should not be released until he had served out fourteen years of imprisonment, came up for consideration before the Indian Supreme Court (1980 Cr.LJ 1440) & it upheld the later provision and declared that “the remission rules and like provision stand excluded so far as lifers punished for capital offense are concerned.” 32. In Maru Ram v. Union of India [(1981) 1 SCC 107], the Court refused to read down Section 433-A to give overriding effect to the Remission Rules of the State. The Court ruled that, Crl.P.No. 426 of 2009 & Crl. A. No. 383 of 2009 etc. 24 “Remission Rules and like provisions stand excluded so far as ‘lifers’ punished for capital offences are concerned. Remissions by way of reward or otherwise cannot cut down the sentence awarded by the court except under Section 432 of the Code or in exercise of constitutional power under Article 72/161 of the Constitution. Remission cannot detract from the quantum and quality of the judicial sentence except to the extent permitted by Section 432 of the Code, subject of course to Section 433-A, or where the clemency power under the Constitution is invoked……. Section 302, IPC or other like offence fixes the sentence to be life imprisonment and 14 years’ imprisonment under Section 433-A is never heavier than life term. Remission vests no right to release when sentence is life imprisonment. No greater punishment is inflicted by Section 433-A than the law annexed originally to the crime. Nor is any vested right to remission cancelled by compulsory 14-year jail life, since a life sentence is a sentence for life…… There is an initial presumption of constitutionality of a legislation. Unless one reaches far beyond unwisdom to absurdity, irrationality, colourability and the like, the court must keep its hands off. Deterrence is a valid punitive component of sentencing. So a measure of minimum incarceration of 14 years envisaged in Section 433-A for the gravest class of crimes like murder cannot be castigated as so outrageous as to be utterly arbitrary and violative of rational classification between lifers and lifers and as so blatantly barbarous as to be irrational enough to be struck down as ultra vires. Time has not, perhaps, come to exclude deterrence and even public denunciation altogether. Even the submission that no penal alibi justifies a prisoner being kept behind the bars if by his conduct, attainments and proven normalization, he has become fit to be a free citizen, cannot spell unconstitutionality. Though the uniform infliction of a 14-year minimum on the transformed and the unkempt is an unkind disregard for redemption inside prison to overcome the constitutional hurdle much more material, research results and specialist reports, are needed. Even for correctional therapy a long hospitalization in prison may be needed. Crl.P.No. 426 of 2009 & Crl. A. No. 383 of 2009 etc. 25 The classification of persons included under Section 433-A is not based on an irrational differentia unrelated to the punitive end of social defence. The classification cannot be castigated as one capricious enough to attract the lethal consequence of Article 13 read with Article 14.” In State of Punjab and others v. Joginder Singh and others [(1990) 2 Supreme Court Cases 661], the afore-referred view was reiterated and it was held as under:- “Remissions schemes are introduced to ensure prison discipline and good behaviour and not to upset sentences; if the sentence is of imprisonment for life, ordinarily the convict has to pass the remainder of his life in prison but remissions and commutation are granted in exercise of power under Sections 432 and 433, CrPC carving out an exception in the category of those convicts who have already enjoyed the generosity of executive power on the commutation of death sentence to one of life imprisonment. Even in such cases Section 433-A of the Code or the executive instruction of 1976 does not insist that the convict pass the remainder of his life in prison but merely insists that he shall have served time for at least 14 years. In the case of other ‘lifers’ the insistence under the 1971 amendment is that he should have a period of at least 8 ½ years of incarceration before release. The 1976 amendment was possibly introduced to make the remission scheme consistent with Section 433-A of the Code. Since Section 433-A is prospective, so also would be the 1971 and 1976 amendments.” 33. The power granted to the President of Pakistan under Article 45 of the Constitution is unfettered by any subordinate legislation. This being a constitutional dispensation, the remissions, reprieve or pardon granted under this shall prevail in the event of a conflict between the rules and an order passed under Article 45. This is in line Crl.P.No. 426 of 2009 & Crl. A. No. 383 of 2009 etc. 26 with this Courts judgment in Abdul Malik’s case which stands reiterated by this Court in Shah Hussain v. The State (PLD 2009 SC 460). In the latter judgment, it was held as follows:- “(4) The law laid down in Abdul Malik’s case that under Article 45 of the Constitution, the President enjoys unfettered powers to grant remissions in respect of offences and no clog stipulated in a piece of subordinate legislation can abridge this power of the President, is hereby reaffirmed.” 34. The fourth point mooted is about the question of ‘reasonable’ classification for the grant of remissions and the precise formulation is “Whether any classification would be permissible in view of the nature of accusation in case special remission is granted by the President of Pakistan, in view of the provisions as enumerated in Article 25 of the Constitution”. 35. The issue of classification with reference to Article 25 of the Constitution has been a subject of comment of this Court. Some of those judgments are:- (i) Jibendra Kishore Achharyya Chudhry v. Provincie of East Paksitan (PLD 1957 SC 9). (ii) Waris Meah v. State (PLD 1957 SC 157). (iii) Bazal Ahmed Ayyubi v. The West Pakistan Province (PLD 1957 Lah. 388). (iv) Zain Noorani v. Secretary of National Assembly of Paksitan (PLD 1957 Kar. 1). (v) Malik M. Usman v. State (PLD 1965 Lah. 229). (vi) East and West Steamship v. Pakistan (PLD 1958 SC 41). (vii) F.B. Ali’s case (PLD 1957 SC 506). (viii) Fauji Foundation’s case (PLD 1983 SC 457). Crl.P.No. 426 of 2009 & Crl. A. No. 383 of 2009 etc. 27 (ix) I.A. Suherwani’s case (1991 SCMR 1041). (x) Abdul Wali Khan’s case (PLD 1976 SC 57). (xi) Aziz Begum’s case (PLD 1999 SC 899) (xii) Shirin Munir and others v. Government of Punajb (PLD 1990 SC 295). 36. In a rather instructive judgment in the case Govt. of Baluchistan v. Azizullh Memon (PLD 1993 SC 341), this Court laid down the following guidelines with regard to import of Article 25 and permissible classification:- (i) That equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike; (ii) That reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis; (iii) That different laws can validly be enacted for different sexes, persons in different age groups, persons having different financial standings, and persons accused of heinous crimes; (iv) That no standard of universal application to test reasonableness of a classification can be laid down as what may be reasonable classification in a particular set of circumstances, may be unreasonable in the other set of circumstances; (v) That a law applying to one person or one class of persons may be constitutionally valid if there is sufficient basis or reasons for it, but classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25; (vi) That equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed; (vii) That in order to make a classification reasonable, it should be based; (a) On an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out; Crl.P.No. 426 of 2009 & Crl. A. No. 383 of 2009 etc. 28 (b) That the differentia must have rational nexus to the object sought to be achieved by such classification.” 37. The Court further observed that, “Permissible classification is allowed provided the classification is founded on intelligible differentia which distinguishes persons or things that are grouped together from others who are left out of the group and such classification and differentia must be on rational relation to the objects sought to be achieved by the Act. There should be a nexus between the classification and the objects of the Act. This principle symbolizes that persons or things similarly situated cannot be distinguished or discriminated while making or applying the law. It has to be applied equally to persons situated similarly and in the same situation. Any law made or action taken in violation of these principles is liable to be struck down. If the law clothes any statutory authority or functionary with unguided and arbitrary power enabling it to administer in a discriminatory manner, such law will violate equality clause. Thus, the substantive and procedural law and action taken under it can be challenged as violative of Articles 8 and 25.” 38. In Saleem Raza Vs. The State (PLD 2007 Karachi 139), convict under the NAB Ordinance had challenged inter alia challenged the vires of Section 10(d) of the NAB Ordinance which mandated that convict under the NAB Ordinance “shall not be entitled to any remission in his sentences”. The precise contention was that the said provision was discriminatory and violative of Article 25 of the Constitution. A Full Bench of the Sindh High Court relying on precedent case law of this Court came to the conclusion that class legislation was forbidden; that permissible classification is allowed provided it is founded on an intelligible differentia which distinguishes persons or things that are grouped together from others who are left out of the group and such classification and differentia must have relation with the Crl.P.No. 426 of 2009 & Crl. A. No. 383 of 2009 etc. 29 object sought to be achieved by the Act. Any law made or action taken in violation of these principles was liable to be struck down. Keeping this principle in mind, the Court held that a comparative examination of provisions contained in NAB Ordinance and Prevention of Corruption Act, 1947, indicated that those provisions were substantially the same and there was no difference in the offences of criminal misconduct contained in Section 5 of the Prevention of Corruption Act, 1947, and corrupt practices defined in Section 9 of the NAB Ordinance. Notwithstanding this similarity in substantive law, if an accused is convicted by a Court other than Accountability Court, the convict is entitled to earn remissions while the NAB convict for the commission of the same offences under similar set of circumstances was deprived of the remission on account of section 10(d) of the NAB Ordinance. The Court, therefore, found this provision to be ultra vires of the equality clause of the Constitution because: - (i) There is no intelligible differentia distinguishing one group of persons from other group of persons and thus there was no reasonable classification permissible under the law merely on the basis of change of forum the classification could not be held to be permissible as reasonable because such classification was not based on any real and substantial distinction. (ii) Where the “State itself does not make any classification of persons or things” and leaves it to the discretion of the Government or any authority to select and classify persons or things without laying down any principle or policy to guide the authority in the exercise of discretion, or a law is made by the State, whereby certain persons or group of persons are discriminated without any rational and reasonable Crl.P.No. 426 of 2009 & Crl. A. No. 383 of 2009 etc. 30 classification and leaving the other groups of the same class, the denial of benefit, privilege or right to one group of persons and allowing the other group of persons would certainly be a discrimination between the persons or things similarly situated and consequently shall be void on account of the provisions contained in Article 25(1) of the Constitution read with Article 8 thereof. (Emphasis is supplied). (iii) A test of permissible classification is that the differentia must have rational nexus to the object sought to be achieved by such classification. The object of the law has no nexus with the classification under Section 10(d) of the NAB Ordinance. 39. The Court did not comment on the vires of a similar provision in Anti Terrorism Act as the same was not under challenge but merely observed as follows:- “We will make a tentative observation to the effect that the object of enacting Anti Terrorism Act, 1997, is entirely different from the object sought to be achieved through the enactment of NAB ordinance and the provision in every law is to be considered on its own merits with reference to the particular law under consideration.” 40. However, the Court declared following provisions as intra vires:- i) “Sub Section 1 of Section 401 Cr.P.C which stipulates that the “Provincial Government shall have no power to suspend or remit any sentence awarded to an offender under Chapter XVI of the PPC, if an offence has been committed by him in the name or on the pretext of Karo Kari, Siah Kari or similar other customs or practices. ii) Rule 201(a) of the Prisons Rules as intra vires because there is a reasonable and rationale classification specifying a class of persons and still leaving the discretion for the Federal or Provincial Government and Competent Authority in the said provision. It is provided that “notwithstanding anything contained in these rules, a person convicted under the charge of espionage / Anti State activities Crl.P.No. 426 of 2009 & Crl. A. No. 383 of 2009 etc. 31 shall not be entitled to ordinary and special remission unless Federal Government or Provincial Government or competent authority makes a specific order in writing in this behalf. iii) Rule 214-A of the Prisons Rules as it only deprived those “convicts of special remission or on premature release on parole if they are sentenced for drug / narcotics offences. The Court found that the remissions were not being denied on account of mere forum of trial but on account of commission of offences pertaining to drugs and narcotics.” 41. It has been a consistent view of this Court that classification is permissible provided the same is backed by law, rules or is based on reasonable differentia. For the exercise of authority under Article 45 of the Constitution, classification of convicts on the basis of accusation is permissible as the President may, inter alia, like to grant remissions to those who are not accused of heinous offences and may refuse it to those accused of serious or terrorism related offences. In the remission policy under consideration (see para 23 above), a class of convicts involved in “heinous crimes” have been excluded from the benefit of remissions. As explained in paragraphs 24 & 25, most of these exclusions are backed by law, rule or an intelligible differentia. The classification is reasonable and applies equally to convicts/prisoners similarly placed. This differentia is not hit by equality clause of the Constitution. 42. In Government of A.P. and others v. M.T. Khan [(2004) 1 Supreme Court Cases 616], the Indian Supreme Court was called upon to consider the question of Crl.P.No. 426 of 2009 & Crl. A. No. 383 of 2009 etc. 32 classification of accused for purposes of remissions under similar provisions of its Constitution. The Court held that:- “It was considered expedient that the power is to be exercised in respect to a particular category of prisoners. The Government had full freedom in doing that and even excluding a category of persons which it thinks expedient to exclude. To extend the benefit of clemency to a given case or class of cases is a matter of policy and to do it for one or some, they need not do it for all, as long as there is no insidious discrimination involved. In the case at hand it was not only due to lack of power, but also because of conscious decision to exclude in the background of what it considered to be lack of authority, and in our view no exception could be taken to the same, legitimately.” 43. A classification made by the competent authority on the basis of intelligible differentia qua accusations/nature of offences or on the basis of law or rules reflecting the same, is permissible and would not be derogatory to the Constitution. 44. The issues framed by this Court having been answered, the Human Right Case Nos. 3200-G of 2009, 3742- P of 2009, 3928-P of 2009, 3887-P of 2009 and 9778-P of 2009 stand disposed of, whereas the main petition (Crl. Petition No. 426 0of 2009) and Crl. Appeal No. 383 of 2009 be fixed before appropriate Bench after obtaining orders from the Hon’ble Chief Justice. CHIEF JUSTICE JUDGE JUDGE Crl.P.No. 426 of 2009 & Crl. A. No. 383 of 2009 etc. 33 JUDGE (Mr. Justice Ch. Ijaz Ahmed has since been retired. JUDGE JUDGE JUDGE Announced in Open Court on the of August, 2010. JUDGE ISLAMABAD, THE Khurram Anees P.S./* APPROVED FOR REPORTING”

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Asif Saeed Khan Khosa Mr. Justice Ejaz Afzal Khan Mr. Justice Iqbal Hameedur Rahman Criminal Petition No. 433 of 2015 (Against the order dated 06.04.2015 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No. 01 of 2015 in Criminal Appeal No. 645 of 2015) Muhammad Adnan alias Dana …Petitioner versus The State, etc. …Respondents For the petitioner: Mr. Tariq Mehmood Butt, ASC with the petitioner in person. For the respondents: N.R. Date of hearing: 19.08.2015 ORDER Asif Saeed Khan Khosa, J.: Muhammad Adnan alias Dana petitioner was convicted for an offence under section 9(b) of the Control of Narcotic Substances Act, 1997 vide judgment dated 23.07.2015 handed down by the learned Additional Sessions Judge, Faisalabad and was sentenced to rigorous imprisonment for seven months and a fine of Rs. 9,000/- or in default of payment thereof to undergo simple imprisonment for two months. It is of some importance to mention here that at the time of announcement of the judgment by the trial court the petitioner Criminal Petition No. 433 of 2015 2 had slipped away and resultantly perpetual non-bailable warrants of arrest had been issued by the trial court against him. The petitioner filed Criminal Appeal No. 645 of 2015 before the Lahore High Court, Lahore challenging his conviction and sentence and also filed Criminal Miscellaneous No. 01 of 2015 seeking suspension of his sentence during the pendency of his appeal. The said appeal was admitted to regular hearing by the High Court on 06.04.2015 but on the same date the miscellaneous application filed by the petitioner seeking suspension of his sentence was dismissed because of the conduct of the petitioner displayed before the trial court. Hence, the present petition before this Court. 2. Upon filing of this petition by the petitioner the office of this Court had raised an objection regarding its entertainability in view of the provisions of Order XXIII Rule 8 of the Supreme Court Rules, 1980 which objection of the office was assailed by the petitioner before a learned Judge-in-Chamber of this Court through Criminal Miscellaneous Appeal No. 20 of 2015. On 15.06.2015 a learned Judge-in-Chamber of this Court had directed the main petition to be fixed before a Bench of this Court which would consider the question of maintainability of this petition and would then decide the petition on its merits, if need be. This petition was fixed before a Bench of this Court on 29.06.2015 and on that occasion the hearing of the matter was adjourned with an observation that the question of maintainability of this petition would be adjudicated upon by the Court on the next date of hearing besides considering the merits of the case, if found necessary. The present petition has now been fixed for hearing today and we have heard the learned counsel for the petitioner at some length. The learned counsel for the petitioner has mainly contended that after recording of his conviction and sentence by the trial court the petitioner had surrendered before the High Court at the time of hearing of his miscellaneous application seeking suspension of sentence and, thus, the High Court ought to have decided the said miscellaneous application on its merits. In support of this submission the learned Criminal Petition No. 433 of 2015 3 counsel for the petitioner has placed reliance upon the case of Mazhar Ahmed v. The State and another (2012 SCMR 997). 3. After hearing the learned counsel for the petitioner and going through the relevant record of the case appended with this petition we have observed that the objection raised by the office to entertainability of the present petition is grounded in the provisions of Order XXIII Rule 8 of the Supreme Court Rules, 1980 which read as follows: “8. Pending the disposal of a petition under this Order, the Court may direct that execution of any order for imprisonment or fine, against which leave to appeal is sought, be stayed, on such terms as the Court may deem fit: Provided that unless surrender is first made to an order of imprisonment, as above, the petition shall not be entertained. Provided further, petitions involving bail before arrest may be entertained and posted for hearing if the petitioner undertakes to appear and surrender in Court.” A bare reading of the above mentioned first proviso to Rule 8 of Order XXIII of the Supreme Court Rules, 1980 makes it abundantly clear that a criminal petition is entertainable by the office of this Court only after a surrender is made by the petitioner to an order of imprisonment outstanding against him and after entertaining of such a petition after such surrender to the order of imprisonment this Court may stay execution of the order of imprisonment or fine. Surrender to an order of imprisonment is, thus, a condition precedent for entertainment of such a petition and it is only after a valid and proper entertainment of such petition that the relief regarding stay of execution of the order for imprisonment or fine can be granted. It is also quite clear that the requirement of surrender to an order of imprisonment pertains only to criminal petitions involving an order of imprisonment (e.g., cases where a conviction has been recorded or upheld and an express order has been passed that the petitioner may be taken into custody or cases where bail of the petitioner has been disallowed or cancelled and an order has been passed that he may be taken into custody) and not to criminal petitions seeking bail Criminal Petition No. 433 of 2015 4 before arrest in a criminal case where no order of imprisonment has so far been passed. In the case in hand on 27.03.2015 the trial court had convicted and sentenced the petitioner for an offence under section 9(b) of the Control of Narcotic Substances Act, 1997 and had simultaneously passed an order that the petitioner, who was on bail till then, was to be arrested and lodged in a jail to serve his sentence of imprisonment and upon slipping away of the petitioner from the trial court on that occasion the said court had also issued perpetual non-bailable warrants for the petitioner’s arrest. It is, thus, obvious that not one but two orders of imprisonment already stand outstanding against the petitioner and admittedly he has not surrendered to the said orders of imprisonment so far. It goes without saying that surrender to an order of imprisonment is not the same thing as surrendering before a higher court without actually being imprisoned in compliance of a judicial order passed in that regard. In this view of the matter we have entertained no manner of doubt that the present petition filed by the petitioner is not entertainable till he surrenders to the above mentioned orders of imprisonment, as made explicit by the first proviso to Rule 8 of Order XXIII of the Supreme Court Rules, 1980. Reliance placed by the learned counsel for the petitioner upon the case of Mazhar Ahmed v. The State and another (supra) has been found by us to be inapt because in that case no discussion was made about the provisions of the first proviso to Rule 8 of Order XXIII of the Supreme Court Rules, 1980 and at the fag end of the judgment passed by this Court in that case a reference was made to the second proviso to Rule 8 of Order XXIII of the Supreme Court Rules, 1980 in the context of a precedent case cited before the Court. The judgment passed by this Court in that case is not relevant to the point in issue in the present petition because what is relevant to the present petition is the first proviso to Rule 8 of Order XXIII of the Supreme Court Rules, 1980 and not the second proviso to the said Rule. We have also observed that in the case of Musharaf Khan v. The State (1985 SCMR 900) leave to appeal had been granted by this Court to consider as to whether a person could approach this Court for his bail before arrest in a criminal Criminal Petition No. 433 of 2015 5 case by surrendering before this Court or not but that issue again is not relevant to the present petition as the present petition pertains to suspension of sentence or stay of execution of an order for imprisonment and not to bail before arrest which matter is regulated by the second proviso to Rule 8 of Order XXIII of the Supreme Court Rules, 1980 and not the first proviso to that Rule. 4. For what has been discussed above we have found that the present petition is not entertainable because the mandatory requirement of surrender to an order of imprisonment contemplated by the first proviso to Rule 8 of Order XXIII of the Supreme Court Rules, 1980 has not been fulfilled by the petitioner. In this view of the matter the objection raised by the office regarding entertainability of this petition is sustained and this petition is dismissed on that score. Judge Judge Judge Islamabad 19.08.2015 Not approved for reporting. Arif

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Syed Mansoor Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Mr. Justice Amin-ud-Din Khan Criminal Petition No.438 of 2021 (Against the judgment dated 17.05.2021passed by the Peshawar High Court Peshawar in Cr. Misc. B.1037-P/2020) Ghazan Khan …Petitioner(s) Versus Mst. Ameer Shuma and another …Respondent(s) For the Petitioner(s): Mr. Asad Ullah Khan Chamkani, ASC For the State: Mr. Zahid Yousuf Qureshi, Addl. A.G. KP with Mazhar Ali, ASI P.S. Katang, Mardan Date of hearing: 17.05.2021. ORDER Qazi Muhammad Amin Ahmed, J.- Non suited throughout in his quest to secure bail, lastly by a learned Judge-in- Chamber of Peshawar High Court Peshawar vide impugned order dated 12th of April, 2021, Ghazan Khan, petitioner, arrayed as one of the accused in a case of murderous assault, registered with Police Station Katlang District Mardan, seeks leave to appeal therefrom. It is alleged that on the eventful day i.e. 10.2.2021, he along with co-accused, targeted Sannan Ahmad PW who endured the assault with five entry wounds, confirmed by a medico legal certificate of even date; a monetary dispute is cited as motive for the crime. Unscathed themselves, nonetheless, the accused agitated a Criminal Petition No.438 of 2021 2 cross version on the strength of a fire shot sustained by a bubalus, owned by one Shah Muhammad, examined at a veterinary center on the following day to blame the injured as being aggressor in the episode. 2. Heard. Record perused. 3. Reliance upon a statement, purportedly made by the injured and recorded by the Investigating Officer in case diary dated 11.02.2020, surprisingly annexed with the petition, wherein he exclusively blamed Hashmand co-accused for the injuries on his person is entirely beside the mark, besides being violative of subsection 2 of section 172 of the Code of Criminal Procedure, 1898 and, thus, this petition, with disapproval, is liable to be dismissed on this ground alone. Even otherwise, having regard to the totality of circumstances whereunder the petitioner is alleged to have actively participated in the occurrence, that squarely constituted mischief of section 324 of the Pakistan Penal Code, 1860, punishable with imprisonment for a period of ten years, attracting the bar that cannot be circumvented in the face of ‘reasonable grounds’ as contemplated by section 497 of the Code, view taken by the courts below being well within the remit of law calls for no interference. Petition fails. Leave declined. Judge Judge Judge Islamabad, the 17thMay, 2021 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MUNIB AKHTAR MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CRIMINAL PETITION NO. 442 OF 2021 (On appeal against the order dated 09.04.2021 passed by the Peshawar High Court, Peshawar in Cr. Misc. (BA) No. 976-P/2021) Saeed Yousaf … Petitioner VERSUS The State and another … Respondents For the Petitioner: Mr. Dar-ul-Salam, ASC For the State: Mr. Shumayl Aziz, Addl. A.G. KPK Mr. Anwar Ali, Inspector For the Complainant: In person Date of Hearing: 15.06.2021 ORDER SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through this petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner seeks post-arrest bail in case registered vide FIR No. 687 dated 20.11.2019 under Sections 302/324/34 PPC at Police Station Akora Khattak, District Nowshera. The same relief was denied to him by the learned Trial Court as also by the High Court vide impugned order. 2. As per contents of the crime report, the deceased was taking children to school in his Datsun car. When he saw the accused armed with firearms, he informed the complainant through mobile to reach at the place of occurrence. When the complainant and his nephew reached there, co-accused Abid started firing with Kalashnikov on the deceased from the front side whereas the co- accused Iqbal started firing at the deceased from backside, due to which he lost his life. The petitioner along with the three co-accused also fired at the complainant and his nephew Mehmood due to which they received injuries. The motive was stated to be a quarrel which took place between the deceased and the accused. 3. Learned counsel for the petitioner inter alia contended that the petitioner has been falsely involved in the instant case by Criminal Petition No. 442/2021 2 the complainant against the actual facts and circumstances of this case in connivance with the local police; that in the FIR though the petitioner has been assigned specific role of causing injury on the injured PWs, however, the medical officer while examining the injured PWs has clearly opined that the injuries on both the injured PWs are suspected, which clearly reflects that the medical officer was doubtful about the infliction of the injuries as stated in the crime report; that though the co-accused of the petitioner are still at large but the criminal liability cannot be shifted from one accused to another; that the petitioner is behind the bars and during course of investigation, no recovery has been affected from him, which further lends support to the version of the petitioner claiming innocence in the case. Lastly it has been argued that the investigation is complete and the petitioner is no more required for further investigation and he is entitled for the concession of bail on this score alone. 4. On the other hand, learned Additional Prosecutor General and the complainant in person have supported the impugned order declining bail to the petitioner. Learned Law Officer contended that the petitioner has been specifically nominated in the FIR, therefore, he does not deserve any leniency by this Court. 5. We have heard learned counsel for the petitioner as also learned Law Officer and have perused the record with their assistance. There is no denial to this fact that there are four persons involved in the case. The role of causing firearm injury to the deceased is ascribed to the co-accused of the petitioner whereas the only role attributed to the petitioner is that he caused injury to the injured PWs. During medical examination of the injured PWs, it has been specifically mentioned in the medico legal report that the injuries sustained by both the injured PWs are suspected. Even otherwise, there is no specification of injury caused to the injured PWs and even the nature of injury has not been described by the Doctor. We have been informed that from the place of occurrence, four empties were recovered but since no weapon of offence has been recovered, this cannot be used against the petitioner. It has been brought in the notice of the Court that co-accused of the petitioner are still at large and there is no likelihood of their arrest in near future. We have taken care of this aspect of the case. Criminal liability cannot be shifted from one person to the other merely on the Criminal Petition No. 442/2021 3 ground that the co-accused of the petitioner are still at large. Perusal of the record reveals that one of the grounds on which the learned courts below have refused bail to the petitioner is that he remained absconder after the incident. It is now settled that an accused can be granted bail if the case of the petitioner is otherwise made out on merits and mere absconsion would not come in his way. In Rasool Muhammad Vs. Asal Muhammad (PLJ 1995 SC 477), this court has held that disappearance of a person named as a murderer after occurrence is but natural whether named rightly or wrongly. This Court in Muhammad Tasaweer Vs. Hafiz Zulkarnain (PLD 2009 SC 53) and Mitho Pitafai Vs. State (2009 SCMR 299) has held that mere absconsion is not conclusive proof of guilt of an accused person. It is only a suspicious circumstance against an accused that he was found guilty of the offence. However, suspicions after all are suspicions. The same cannot take the place of proof. The value of absconsion, therefore, depends on the facts of each case and bail can be granted if an accused has good case for bail on merit and mere absconsion would not deprive him bail, if otherwise the case of the petitioner is of “further inquiry” as envisaged under Section 497(2) Cr.P.C and further no useful purpose would be served while keeping him behind the bars till the conclusion of the trial pending adjudication before the Trial Court. 6. For what has been discussed above, the petitioner has made out a case for grant of bail. Consequently, we convert this petition into appeal, allow it, set aside the impugned order and admit the petitioner to bail, subject to his furnishing bail bonds in the sum of Rs.500,000/- (rupees five hundred thousand) with one surety in the like amount to the satisfaction of learned Trial Court. JUDGE JUDGE Islamabad, the 15th of June, 2021 Approved For Reporting Khurram