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Crl.P. No. 443-L of 2020
-: 7 :-
I have gone through the order rendered by my learned brothers
Mr. Justice Manzoor Ahmad Malik and Mr. Justice Syed
Mansoor Ali Shah. With utmost respect, I do not agree with the
reasonings recorded, hence, render my own findings.
SAYYED MAZAHAR ALI AKBAR NAQVI, J.:- The instant case
bearing FIR No. 64/2016 dated 05.02.2016 offence under
section 302, 324, 34 PPC read with section 7 Anti-Terrorism
Act, 1997 registered with police station Samanabad, Lahore is a
glaring example of atrocious act in a civilized society of 21st
Century. The background of said untoward incident is that in
fact there are two groups of criminals operating within the local
limits of police station Samanabad, one led by Ch. Saleem while
the other group is led by Sajid Chaudhary. Both the groups are
at daggers drawn with each other. On 05.02.2016 at 3.15 p.m.
two members of Sajid Chaudhary group were found in Rashid
Amin Chowk, where they were confronted by their opponents.
As a consequence, both of them were fired upon in the said
Chowk. Another person from the same group namely Mashooq
Butt reached there to rescue them but he was also dealt in the
same manner. Thereafter, members of said group of criminals
conspired with each to chalk out a plan to tackle with the
situation. Hence to fulfill their nefarious design, present
petitioner, co-accused Waqar under the patronage of Ch. Saleem
entered into nearby street where the house of complainant is
located. They resorted to reckless firing, one of the fire shot
made by petitioner with rifle .223 bore hit Bahadar Ali aged 14
years on his temporal region while co-accused Waqar fired
Crl.P. No. 443-L of 2020
-: 8 :-
hitting Safdar Ali on his forehead, another minor aged 13 years
when both brothers were standing in the balcony of their own
house. The said gruesome act was committed with nefarious
designs to create a concocted counter-version against the earlier
incident with ulterior motives. The mode and manner of
occurrence by the assailant show their inter-se connectivity qua
their mindset. After committing the double murder, petitioner
alongwith others restrained inmates of deceased family inside
their house on gun point while their house was locked from
outside. They were threatened not to report the matter to police
or even to attend their children. The most nasty aspect of this
case is that after the commission of said offence, Ch. Saleem
being in league with the local police lodged First Information
Report as complainant while depicting a false, baseless and
concocted story by distorting actual facts and circumstances
Sadaqat Ali real Chacha of both deceased rescued himself from
the clutches of the accused person, he approached police station
where he lodged a complaint which was recorded u/s 161
Cr.P.C. with the intervention of high-ups of police. Due to
sensational nature of this case it was investigated by senior
police officers. During the course of investigation the recovery of
rifle .223 bore was affected from the petitioner which was sent
to Forensic Science Laboratory. It also matched with the empties
collected from the place of occurrence. Therefore, report of
Forensic Science Laboratory is positive in nature. The
investigation concluded and found the active participation of the
Crl.P. No. 443-L of 2020
-: 9 :-
petitioner in the above said double murder with a specific role of
causing firearm injury to one of deceased on temporal region.
2.
Vide
order
dated
18.05.2020,
this
Court
requisitioned report from the learned trial court. The said report
bearing No. 55 dated 01.06.2020 is placed before us. The report
of the trial court is ambiguous on many aspects. The trial court
has not fixed the responsibility of delay rather a confusing
picture has been portrayed. Order passed by the learned Single
Bench of High Court dated 24.02.2020 while dismissing the bail
application has demonstrated a different picture, which actually
occasioned for delay in conclusion of trial from the record.
Admittedly the petitioner was taken into custody on 11.06.2016,
however, the co-accused escaped from appearance before trial
court
one
after
the
other
on
27.04.2017,
16.05.2017,
15.06.2017, 21.6.2017, 13.09.2017, 23.10.2017, 18.12.2017,
21.12.2017, 05.01.2018, 15.01.2018 and 24.01.2018. As such
the accused party practically made it impossible for the trial
court to frame charge against them. Nevertheless the trial court
after marking the attendance of all the accused persons framed
charge on 10.07.2018. The highhandedness of the accused
party continued even after the framing of charge, the accused
persons once again while playing the same tactics absented
themselves one by one on 06.08.2018, 22.09.2018, 19.10.2018,
09.11.2018, 19.11.2018, 29.11.2018, 05.12.2018, 11.12.2018,
24.12.2018, 26.01.2019, 30.01.2019, 07.2.2019, 20.02,2019,
27.02.2019, 13.03.2019, 26.03.2019, 13.04.2019, 23.04.2019,
18.05,2019, 29.05.2019, 11.06.2019, 21.08.2019, 07.11.2019,
Crl.P. No. 443-L of 2020
-: 10 :-
13.11.2019, 30.11.2019, 19.12.2019 and 13.02.2020. The data
mentioned above speaks volume qua the attitude of the accused
persons towards Court proceedings. Otherwise, it has now
become customary that the accused with crude criminal
mindset deliberately adopt such tricks in order to delay the
Court proceedings with an intent to exhaust the other party and
to further avail the benefit of proviso 3 of Section 497(1) Cr.P.C.
The element of ill design for the purpose of delay of trial is
floating in abundance in this case. The report of trial court,
wherein the complainant party was partly held responsible for
delay is nothing but made beyond the real facts.
3.
The real cause of non-appearance of complainant
and PWs before the trial court cannot be attributed to them; as
it was not intentional; rather they are forced to avoid
appearance, because they are apprehending serious threats to
their lives. The complainant has already made several attempts
in order to seek police protection but all efforts made by the
complainant proved futile. Even at one stage the police guards
were
deployed
vide
notification
dated
29.08.2016
but
unfortunately those were withdrawn due to influence of accused
party. This very fact was not brought in our notice by the trial
court. During the course of proceedings before this Court,
Sadaqat Ali (complainant) was present in person. He was given
the right of audience. He explained in the Court the reasons in
detail for non-appearance of complainant and prosecution
witnesses. He further apprised that he had already moved
various applications to police hierarchy, even to the Chief
Crl.P. No. 443-L of 2020
-: 11 :-
Justice, Lahore High Court but all efforts proved fruitless. He
further informed that lawlessness of the aforesaid groups can be
gauged from the fact that (364) empties of sophisticated
weapons were recovered from the spot. This statement of the
complainant was not controverted by anyone present in the
Court from either side. Another portion of report that three PWs
had compromised with the accused person before trial court is
in fact settlement in between the two groups having no nexus
with the case of prosecution lodged at the instance of Sadaqat
Ali complainant. The prosecution version advanced by Sadaqat
Ali complainant is still intact in all respects. Nevertheless, the
trial court has assured this Court that trial can be concluded
within the shortest possible time subject to the cooperation of
the parties.
4.
Another alarming situation has been brought in the
notice of this Court during record inspection that he police file
was manipulated by distracting Case Dairies from the original
record, during court custody. In this regard "Rapt" has already
been recorded in local police station. This very fact alone is
sufficient to raise alarm towards the gravity of situation.
5.
Now
the
pivotal
question
which
requires
determination is whether after the expiry of certain period,
benefit of proviso 3 of section 497(1) Cr.P.C. could be available
to the accused in all eventualities or there can be any legal
restriction imposed by the law. To construe the legal imports of
law, it is advantageous to reproduce it:-
Crl.P. No. 443-L of 2020
-: 12 :-
Section 497. When bail may be taken in cases of non-
bailable offence.--
1. When any person accused of non-bailable offence is
arrested or detained without warrant by an officer-in-
charge of a police station, or appears or is brought
before a Court, he may be released on bail, but he
shall not be so released if there appear reasonable
grounds for believing that he has been guilty of [an
offence punishable with death or [imprisonment for
life or imprisonment for ten years]]:
Provided that ………………………
Provided further that …………..
Provided further that the Court shall, except where it
is of opinion that the delay in the trial of the accused
has been occasioned by an act or omission of the
accused or any other person acting on his behalf or in
exercise of any right or privilege under any law for
the time being in force, direct that any person shall be
released on bail--
(a)
who, being accused of any offence not punishable
with death, has been detained for such offence for a
continuous period exceeding one year and whose trial
for such offence has not concluded; or
(b)
who, being accused of an offence punishable with
death, has been detained for such offence for a
continuous period exceeding two years and whose
trial for such offence has not concluded.
Provided further that the provisions of the foregoing
proviso shall not apply to a previously convicted
offender for an offence punishable with death or
imprisonment for life or to a person who, in the
opinion of the Court, is a hardened, desperate or
dangerous criminal or is accused of an act of
terrorism punishable with death or imprisonment for
life.
The provisos 3 & 4 of section 497(1) Cr.P.C. are co-existent qua
their application; hence, the imports of the same cannot be
constructed in isolation rather to interpret it conjointly. The
language of proviso 3 of section 497(1) Cr.P.C. demonstrates a
general principle which is clear, unambiguous in its texture
Crl.P. No. 443-L of 2020
-: 13 :-
rather it in express terms confers jurisdiction upon the court to
entertain and extend benefit of proviso 3 of section 497(1)
Cr.P.C. in the spirit of language of said provision pursuant to
the intent of the legislature, however, the said concession has
been controlled while imposing certain restriction while
introducing proviso 4 of section 497(1) Cr.P.C. The bare perusal
of proviso 4 of section 497(1) Cr.P.C override to some extent
proviso 3 of section 497(1) Cr.P.C. by limiting its efficacy by
placing conditions against the general principle as such it has
laid an embargo which has to satisfy prior to availing concession
of proviso 3 of section 497(1) Cr.P.C., resultantly, these are
practically exceptions to the general principle entails from
proviso 3 of section 497(1) Cr.P.C. The proviso 4 of section
497(1) Cr.P.C. envisages distinct legal requisites in relation to its
applicability.
(i).
That the provision of third proviso of sub-section shall
not apply to previously convicted offender in an
offence not punishable with death or imprisonment
for life.
(ii)
Or to a person who in the opinion of the court is
hardened, desperate or dangerous criminal or
involved in terrorism.
The plane reading of first requisite depicts it to be mandatory in
nature by virtue of its language which is otherwise clear
unambiguous transparent in its application. It speaks about
those weighed down with criminal background. In other words
any criminal who is previously convicted is out rightly barred
from the consideration to avail the benefit of proviso 3 of section
497(1) Cr.P.C. This condition is to apply stricto-sensu in all
Crl.P. No. 443-L of 2020
-: 14 :-
fairness without compromising it in any manner; hence, all
those who are stigmatized/tainted with criminal background are
ousted from consideration. However, the second limb of proviso
4 of section 497(1) Cr.P.C. is discretionary in its applicability.
The language itself is self explanatory ensuing the intent of said
provision. While introducing this limb of said provision the
legislature has empowered the court to form an opinion qua the
person involved in a criminal case if brought forth while taking
into consideration the act, mode and manner of occurrence and
other existing circumstances placed before the court without
being prejudiced by any previous record. The Court while
forming opinion about the criminal declaration has to satisfy all
norms of legal aspects so that opinion made should not
frustrate any ethics of decency and fairness to meet the ends of
justice. The opinion of the court should meet all legal justiciable
requirements demanded by the law in the interest of safe
administration of criminal justice.
6.
The instant case exclusively relates to second limb of
the proviso 4 of section 497(1) Cr.P.C. Although there is no
denial that this group is involved in eight other criminal cases of
serious nature but even if this aspect is kept-a-aside the
heinousness of the act committed by the petitioner in the
present case when evaluated/scrutinized in its entirety, it is
loaded with overwhelming material available on the record
which connects the petitioner as main perpetrator of double
murder case. Thus no other opinion can be formed in this case
except that the petitioner while joining hands with others had
Crl.P. No. 443-L of 2020
-: 15 :-
committed
a
gruesome
act
of
double
murder.
Hence,
accumulative effect of the entire discussion leads towards one
and the only opinion in the mind of the Court, which brings him
in the category of hardened, desperate and dangerous criminal
as stipulated under proviso 4 of section 497(1) Cr.P.C. The
findings recorded by this Court was subject matter of an earlier
case, which was dealt by a Single Bench of Sindh High Court in
a salutary judgment titled "MUHAMMAD HANIF versus THE
STATE" (PLD 1986 Karachi 437) in which it was enunciated by
the learned Court that even in the absence of previous record,
an accused can be declared hardened, desperate or dangerous
criminal subject to act, mode and manner of occurrence in that
very case. A number of judgments with divergent view were in
fields from other Courts, hence to resolve this controversy leave
to appeal was granted to pronounce an authoritative judgment
on the subject, even it was considered a case of first impression
before this Court, Therefore, in the case titled "MOUNDER and
others versus THE STATE" (1988 SCMR 1113). A larger Bench
of five Hon'ble Members was constituted which approved the
judgment of Singh High Court mentioned above in the case
"MOUNDAR and others vs. THE STATE" (PLD 1990 Supreme
Court 934). Relevant at p/939 reproduced:-
"The word "criminal" cannot be given a special
meaning as a person already convicted of a crime for
in that case, the category of provision convicts having
been separately mentioned as disentitled to the
privilege of release on bail on the ground of statutory
delay, the words under interpretation to the effect
that the person is hardened, desperate or dangerous
criminal, would be rendered completely redundant
Crl.P. No. 443-L of 2020
-: 16 :-
and meaningless. According to the learned Judge,
therefore, opinion on this question can be based
upon the materials available in the case under trial
as well as any other material which may be
produced by the prosecution to help the Court in
formation of such opinion. Somewhat similar view
was expressed by another learned Judge of the
Sindh High Court in Gull Khan and others v. The
State PLD 1986 Karp.629, in which the word
"criminal" was construed in the context of provision
under consideration, to mean a person "accused of
criminal offence or who is known to be or reputed to
committing crime".
At page No. 941 it is observed as under:-
"In subsection (1) of section 497 the legislature has
already empowered the Court even before the
commencement of the trial to make a tentative
assessment of the evidence collected against an
accused person or likely to be produced in the trial
against him, in order to reach the conclusion whether
there appears a reasonable ground for believing that
he has been guilty of an offence punishable with
death or life imprisonment or imprisonment for 10
years. The provision under consideration here is a
proviso to the same subsection, and, therefore, it will
be reasonable to construe it in the same manner
authorizing a Court to take into consideration the
evidence collected by the prosecution for purpose of
determining whether the accused is a criminal of the
categories prescribed therein. Of course the Court
can take into consideration and indeed in most of the
cases it will take into consideration other materials
produced by the prosecution in order to show that
the case falls within the prohibitions contained in the
4th proviso".
7.
As a consequence of the facts and circumstances,
the law on the subject, this Court has no hesitation to conclude
that the allegation levelled against the petitioner regarding
commission of such a heinous offence squarely comes with the
ambit of a hardened, desperate and dangerous criminal, hence,
he is not entitled to avail the benefit of proviso 3 of section 497
Crl.P. No. 443-L of 2020
-: 17 :-
(1) Cr.P.C. Therefore, I do not find any force in the said petition
which is hereby dismissed. Leave to appeal is declined.
Judge
Lahore
24.06.2020
Approved for reporting.
'Athar'
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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.445-L of 2020
(Against the order dated 17.3.2020 passed by the
Lahore High Court Lahore in T.A. No.161169 of
2020)
Akhtar Ali
…Petitioner(s)
Versus
The State
…Respondent(s)
For the Petitioner(s):
In person.
For the State:
Mr. Khurram Khan,
Additional Prosecutor General Punjab
For Respondent No.3:
In person.
Date of hearing:
15.07.2020.
ORDER
Qazi Muhammad Amin Ahmed, J.- Akhtar Ali, petitioner, is
engaged in litigation with his estranged wife Tania Kousar; he is also
accused in a criminal case registered at the instance of one Mst.
Ghazala Bibi; he has arrayed both of them in his quest for transfer of
cases pending adjudication before a learned Judicial Magistrate at
Sheikhupura to a Court at Gojra District Nankana Sahib. After his
failure before the learned District & Sessions Judge Sheikhupura, his
request before a learned Judge-in-Chamber of the Lahore High Court
Lahore met with no better fate and the learned Judge having found the
motion scandalous and frivolous, burdened him with a cost of
Rs.50,000/-. It is in this backdrop that he has resigned before us as a
last resort.
2.
In his move before the Courts below, we have found his
accusations directed against the learned Judges as outrageous as well
as scandalous; he has also targeted the members and office bearers of
the local Bar, apparently having no axe to grind in his trivial contests
wherein we have found the respondents equally reckless and abrasive.
We view the repugnant course adopted by the parties before the learned
Courts with disdain. It is fundamentally important for the peaceful
preservation of any society that its Judges attend call of their office
fearlessly with dignity, respect and independence so as to sit on the
judgment between the contestants, regardless of their status or station,
without let or hindrance. A society cannot countenance obstruction or
Criminal Petition No.445-L of 2020
2
interference with the administration of justice without incurring
disastrous consequences, therefore, to ensure freedom to a Judge within
the remits of law is a duty cast upon all and sundry without exception
and immunity,
3.
The petitioner while hurling accusations threw both caution
as well as courtesy to the wind and the learned Judge-in-Chamber was
well within the bounds of law to saddle him with a substantial cost. The
petitioner, however, before us has expressed remorse and regret,
throwing himself at the mercy of the Court; he pledged profound respect
and courtesy that appertains to a tribunal with an undertaking to be
extremely careful in the future.
4.
Restraint is a better part of judicial calling; we would never
exercise coercive authority of the State vesting in us since time
immemorial in order to wreak vengeance or as a means to uphold our
dignity or respect that we solemnly believe ‘must rest on surer
foundations’, nonetheless, given the gravity of petitioner’s reckless
behavior we would not let him off without a tag. With a stern warning
and while exercising restraint, we reduce the cost imposed by the High
Court to a sum of Rs.2000/- as a symbolic reminder to the petitioner for
his mischief.
5.
We entertain no manner of doubt that the learned
Magistrate, conscious of his calling as a tryst with divinity, uninfluenced
by the scandalous conduct of the parties, would dispose of the pending
matters in accordance with law, in the fullness of time with all
convenient dispatch. The petitioner shall deposit Rs.2000/- as cost with
the District Nazir Sheikhupura within a fortnight. Petition fails. Leave
declined.
Judge
Judge
Judge
Lahore, the
15th July, 2020
Not approved for reporting
Azmat/-
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Umar Ata Bandial
Mr. Justice Faisal Arab
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.445 of 2020
(Against the order dated 4.3.2020 passed
by the Peshawar High Court D.I. Khan
Bench in Cr. Misc. B.A. No.61-D of 2020)
Ghulam Abbas
…Petitioner(s)
Versus
The State & another
…Respondent(s)
For the Petitioner(s):
Mr. Saleemullah Ranazai, ASC
For the State:
Ms. Aysha Tasneem, ASC
Date of hearing:
04.06.2020.
ORDER
Qazi Muhammad Amin Ahmed, J.- Abdul Latif, deceased,
along with Muhammad Hanif and Hafiz Muhammad Rafique, PWs,
was on way to attend Court proceedings on 22.12.2004 when at 8:15
p.m. within the remit of Police Station City Dera Ismail Khan, Ghulam
Abbas petitioner, on a motorbike, driven by co-accused, subsequently
identified as Iftikhar Ahmed, intercepted the entourage; repeated fire
shots fatally hit the deceased while Muhammad Hanif PW survived the
gunshot. Previous blood feud is cited as motive for the crime. Petitioner
stayed away from the law and was finally arrested on 14.1.2020;
co-accused was acquitted during his absence.
2.
Heard. Record perused.
3.
Acquittal of co-accused, initially arrayed as unknown, has
not been received as a valid ground for petitioner’s release on bail, both
by the Court of Session as well as the High Court, a view found by us
as unexceptionable. Similarly, petitioner’s advanced age with health,
statedly frail, albeit with no specific disorder cannot extenuate
abscondance of almost 16 years having regard to the fatal role assigned
Criminal Petition No.445 of 2020
2
to him. Statements of the witnesses including an injured supported by
medical
evidence
constitute
“reasonable
grounds”
within
the
contemplation of section 497 of the Code of Criminal Procedure 1898,
aggravated
by
petitioner’s
absence
going
on
for
an
age,
unsurmountably stand in impediment to his release on bail, a
concession discretionary in nature. View taken by the High Court,
being within the bounds of law, does not call for interference. Petition
fails. Leave declined.
Judge
Judge
Judge
Islamabad, the
4th June, 2020
Not approved for reporting
Azmat/-
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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.446-L of 2016
(Against the order dated 05.03.2002 passed
by the Lahore High Court, Lahore in Crl. Misc.
No.4722 of 2019).
Rana Abdul Khaliq
…Petitioner(s)
VERSUS
The State, etc.
…Respondent(s)
For the Petitioner(s)
: Qari Nadeem Ahmed Awaisi, ASC
Respondent No.2
: In person
For the State
: Mr. Mazhar Sher Awan,
Additional Prosecutor General,
Punjab with Tariq Mehmood, S.I.
Date of Hearing
: 13.05.2019
JUDGMENT
Qazi Muhammad Amin Ahmed, J.- Impugned herein
is order dated 5.3.2019, whereby a learned Judge-in-Chamber of
Lahore High Court admitted Muhammad Akram, respondent to
bail in anticipation to his arrest; upon failure of a bank cheque
issued by him towards re-payment of loan, he was required in a
criminal case registered under Section 489-F of Pakistan Penal
Code, 1860, The learned High Court confirmed ad interim bail on
the ground that respondent did not ‘misuse’ ad interim bail and
that he was going to be released on post arrest bail if at all,
remitted into custody. The learned Judge in order to substantiate
his point of view, referred to the case of Khalil Ahmed Soomro and
others versus The State (PLD 2017 SC 730).
2.
Grant of pre-arrest bail is an extra ordinary remedy in
criminal jurisdiction; it is diversion of usual course of law, arrest in
cognizable cases; a protection to the innocent being hounded on
trump up charges through abuse of process of law, therefore a
petitioner seeking judicial protection is required to reasonably
Criminal Petition No.446-L of 2019.
2
demonstrate that intended arrest is calculated to humiliate him
with taints of mala fide; it is not a substitute for post arrest bail in
every run of the mill criminal case as it seriously hampers the
course of investigation. Ever since the advent of Hidayat Ullah
Khan’s case (PLD 1949 Lahore 21), the principles of judicial
protection are being faithfully adhered to till date, therefore, grant
of pre-arrest bail essentially requires considerations of mala fide,
ulterior motive or abuse of process of law, situations wherein Court
must not hesitate to rescue innocent citizens; these considerations
are conspicuously missing in the present case. The case referred to
by the learned Judge-in-Chamber unambiguously re-affirms above
judicial doctrine and thus reliance being most inapt is unfortunate
to say the least.
3.
The respondent is in attendance; despite notice and
knowledge, he has not arranged representation, seemingly as a
strategy to win time and this does not absolve this Court to decide
this case posted for hearing, at public expense. Impugned order
being in contravention of settled judicial principles cannot sustain.
This petition is converted into appeal and allowed, the impugned
order is set aside and the bail granted to the respondent is
cancelled.
JUDGE
JUDGE
Lahore, the
13th of May, 2019
Ghulam Raza/*
JUDGE
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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 Nos.457-L and 400-L of 2016
(Against the judgment dated 16.02.2016 passed by
the Lahore High Court, Lahore in Crl A. No.364-
J/2011, Crl. Revision No.1211/2011 along with M.R.
No.476/2011)
Amjad & another
(in Crl. P. No.457-L/2016)
Imtiaz Ahmed
(in Crl. P. No.400-L/2016)
Petitioner(s)
Versus
The State & another
(in Crl. P. No.457-L/2016)
Amjad & others
(in Crl. P. No.400-L/2016)
Respondent(s)
For the Petitioner(s):
Mr. M. Baleegh-uz-Zaman, ASC
(in Cr.P.457-L/2016)
Mr. Imran Raza Chadhar, ASC
(in Cr.P.400-L/2016)
For the State
Mr. Amjad Rafique,
Addl. Prosecutor General.
Date of hearing:
19.10.2020.
J U D G M E N T
Qazi Muhammad Amin Ahmed, J.- Muhammad Azam,
20, deceased, was shot dead at 11:00 p.m. on 3.3.2008 within the
precincts of Police Station Barrana District Jhang, while irrigating
his land alongside the witnesses; incident was reported by deceased’s
brother Imtiaz Ahmed (PW-1), same night 12:30 a.m. at Adda
Kalokay. According to the complainant, they were simultaneously
ploughing and irrigating the land when at about 11:00 p.m, the
deceased went to turn off the electric switch, surprised by the
petitioners, son and father inter se, accompanied by Imtiaz and
Fayyaz with two unknown assailants, differently armed. In the
Criminal Petition Nos.457-L and 400-L of 2016
2
electric bulb light, Fayyaz accused exhorted to avenge the previous
insult whereupon the witnesses rushed to rescue the deceased, who
took refuge inside a small room and it was within their view that
Amjad petitioner with a .30 caliber pistol targeted the deceased on
the left side of his belly followed by another shot by his father while
he had already fallen on cot; remainder of the accused threatened
the witnesses to stay at bay. It is alleged that a short while latter, the
accused shot one of the females of their clan to colour the incident as
a reaction over family honour. It is further alleged that a day before
the fateful incident, the deceased had an altercation with the
accused over use of electric motor without his permission and it is in
this backdrop that the accused on the instigation of Nawaz son of
Maali and Mahni son of Muhammad settled the score. Autopsy,
conducted at 11:30 a.m, noted two entry wounds on left lower side of
the abdomen. Dissatisfied with the outcome of investigation, the
complainant preferred to prosecute the case through a private
complaint; upon indictment on 4.11.2009, the accused claimed trial;
they rallied themselves behind the position taken by Amjad
petitioner. Unimpressed by the plea, the learned trial Judge
proceeded to convict the petitioners under clause (b) of Section 302
of the Pakistan Penal Code, 1860 and sentenced them to death vide
judgment dated 26.10.2011; remainder of the accused were
acquitted from the charge; a learned Division Bench of Lahore High
Court Lahore vide impugned judgment dated 16.2.2016 maintained
the convictions, however, altered the penalty of death into
imprisonment for life, vires whereof, are being assailed, both by the
convicts as well as the complainant, latter seeking revival of the
death penalty.
2.
Learned counsel for the petitioners contends that facts
manifestly evident on the record do not justify a guilty verdict as the
prosecution miserably failed to establish “proof beyond doubt” to
sustain the charge; while highlighting the improbability of the
episode, the learned counsel has referred to firearm injury sustained
by Muhammad Yousaf petitioner, completely suppressed in the crime
report; he has also referred to medico legal examination, twice
conducted on Shahida Bibi daughter of Yousaf petitioner on
4.3.2008 and 26.3.2008 to argue that position taken by the accused
during the trial truthfully preponderates over the inherently flawed
Criminal Petition Nos.457-L and 400-L of 2016
3
ocular account furnished by the prosecution. Acquittal of majority of
co-accused, though with roles inconsequential, has, nonetheless,
been cited as an additional predicament confronting the prosecution.
The learned Law Officer has faithfully defended the impugned
judgment; according to him, the scales are in balance with a
conscionable wage. The learned counsel for the complainant,
however, prayed for enhancement of life imprisonment into penalty of
death on the ground that once the Court had believed the
prosecution evidence, coldblooded murder of the deceased, a youth
in prime part of his age, petitioners ought to have been visited with
the penalty aptly imposed by the learned trial Court. There was no
judicially recognized mitigating circumstance to alter the penalty of
death, a legal sentence, into imprisonment for life, concluded the
learned counsel.
3.
Heard. Record perused.
4.
Prosecution case is founded on ocular account furnished
by Imtiaz Ahmed, Amjad Ali and Wajid Ali, examined respectively as
PW-1, PW-2 and PW-3; their testimonies have been unreservedly
received by the Courts below with the exception of acquitted
co-accused,
assigned
roles
trivially
different.
Besides
the
complainant, Sajiad Ali (PW-6) testified to independently establish
the motive, however, discarded by the High Court, nonetheless.
Going by the graphic details of ocular account, both the petitioners
are unambiguously shown being responsible for one shot each to the
deceased, opined as cause of death, individually as well as
collectively, in the ordinary course of nature. The deceased received
both the fire shots inside a small room, improvised at the venue to
house tube-well gears. According to the crime report as well as
statements of the witnesses, the deceased received both the shots on
a cot covered by a bedding, a position that runs counter to depiction
of the dead body in column 24 of the inquest report. Unanimous
acceptance of prosecution evidence both by the learned trial Judge
as well as the High Court, nonetheless, escaped fundamental issues
raised by the defence, in the following plea:
“I am innocent. The complainant party is big landlord of the
Allaqa. I am the poor man and labourer by profession. On the
day of occurrence, Amjad, Imtiaz and Waris along with
Muhammad Azam, since deceased, abducted my sister Mst.
Shahida from my house for the purpose to commit forcible
rape with her and took her at an abandoned place, confined
her and locked the room and Muhammad Azam was busy in
committing rape upon her. When I came to know, I went there,
broke/open the door to rescue Mst. Shahida from the hands of
Criminal Petition Nos.457-L and 400-L of 2016
4
Muhammad Azam deceased. Muhammad Azam started firing
from inside the room on me. I also made fire shot in self
defence of my person and honour during this cross firing,
Shahida my sister, Yousaf my father were injured at the
hands of Muhammad Azam deceased and Muhammad Azam
also sustained injury who later on died. The local police was
under the influence of complainant party, he refused to got
medically examined Mst. Shahida for rape as well as her
injuries. My mother applied to the Area Magistrate in this
respect but the I.O. only got medically examination of her
injury. My mother again applied for medico legal of Mst.
Shahida for rape and under the order of Area Magistrate, she
was medically examined. I made firing to save the honour and
person of my sister Mst. Shahida from Muhammad Azam and
others. Shahida was not cited as PW in this case, nor she was
made accused. The investigation was conducted by malafide.
My mother Sattan filed an application before Mr. Nazeer
Ahmed Aqeel, learned ASJ u/s 22-A, 22-B Cr.P.C. for
registration of case. The certified application is Ex.DB. The
learned ASJ pleased to pass order dated 28.4.2008 which is
Ex.DB/1. The act of accused is very desperate and palace. I
am innocent.”
These two diametrical positions essentially require a thorough
examination as the latter in the event of being found near to reality,
even if not found as the whole truth, would devastatingly undermine
the entire prosecution case. Muhammad Yousaf petitioner was
medically examined under a police docket shortly after the
occurrence at 4:15 a.m. and the medical officer observed following
injuries on his person:
1.
A lacerated wound ½ x ½ cm with inverted margins, on
the palmer of the index finger of the left hand near base.
Injury was kept under observation and X-Ray was
advised.
2.
A lacerated wound 2 cm x 1.5 cm with everted margins on
dorsum of the index finger of the left hand, 3 cm above the
base of the finger. KUO.
Probable duration of the injuries is given as between 3 to 9 hours;
medical examination conducted at 4:15 a.m; the time frame on the
outer side suggests that Muhammad Yousaf had already received the
bullet injury and was, thus, physically incapacitated to shoot the
deceased at the stated point of time as alleged by all the witnesses
with one voice. Prosecution’s complete silence on the receipt of
firearm injury by Muhammad Yousaf, intriguingly reflects upon its
case. There is yet another part of the story that may not find a buyer;
according to the witnesses, Amjad petitioner first shot the deceased
who then felled on the cot inside the room and it was thereafter that
Muhammad Yousaf petitioner targeted him with the second shot,
landing on the same part of the body; there does not appear any
earthly reason for Muhammad Yousaf to join the undertaking already
being effectively carried out by his son. Presence of a cot with a
bedding in a small room, otherwise designed to manage tube-well
apparatus, nonetheless, in the backdrop of plea raised by the
Criminal Petition Nos.457-L and 400-L of 2016
5
petitioners appears to be a circumstance fraught with suspicion,
reinforced by medico legal examination of Shahida Bibi at 9:45 a.m.
under a police docket with following observations:
1.
A stitched wound of about 19 cm long having 13 stitches
extending from xiphisternum to pubic area on the interior
abdominal wall.
2.
A wound of 1.5 cm x 1 cm on the right lateral aspect of
abdominal wall about 16 cm below and lateral to injury
No.1.
She was once again examined through police on a magisterial
direction for the determination of sexual assault albeit with findings
inconclusive.
Recovery
of
pistol
from
Amjad
petitioner
is
inconsequential whereas hatchet attributed to Muhammad Yousaf
runs counter to the prosecution case set up qua the accused.
Massive suppression of injuries endured by some of the accused and
screening of Shahida Bibi from the scene are circumstances that
inevitably cast their shadows on the prosecution case. Even if the
explanation offered by the accused is not viewed as the whole truth,
in view of circumstances mentioned above, the occurrence does not
appear to have taken place in the manner as alleged in the crime
report with events faltering on the scales of probability. An innocent
proxy lurking behind a twisted tale presents a real danger of error
and, thus, it would be expedient as well as safe to extend benefit of
doubt to both the petitioners to rule out the apprehended risk.
Criminal Petition No.457-L of 2016 is converted into appeal and
allowed. The petitioners/appellants are acquitted of the charge and
shall be released forthwith if not required to be detained in any other
case.
As a natural corollary, Criminal Petition No.400-L of 2016
stands dismissed.
Judge
Judge
Judge
Lahore, the
19th October, 2020
Not approved for reporting
Azmat*
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE MUNIB AKHTAR
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
CRIMINAL PETITION NO. 458 OF 2021
(On appeal against the order dated 12.04.2021 passed by
the Peshawar High Court, Mingora Bench (Dar-ul-Qaza),
Swat in Cr.M(BA) No. 160-M/2021)
Hussain Ahmed
… Petitioner
VERSUS
The State etc
… Respondents
For the Petitioner:
Raja Inaam Ameen Minhas, ASC
Syed Tariq Aziz, AOR
For the State:
Mr. Shumayl Aziz, Addl. A.G. KPK
Date of Hearing:
14.06.2021
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. 46 dated 29.05.2020 under Section 302/34
PPC at Police Station Nawagai, District Bajaur. 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, there was a land
dispute between the complainant and the petitioner and his co-
accused. On the fateful day and time, the accused were plowing the
disputed land with tractor when complainant along with the
deceased went there and asked them to leave the land. Upon this
the accused person fired at the head of the deceased with a pistol,
due to which he lost his life.
3.
Learned counsel for the petitioner inter alia contended
that in the FIR no specific role has been attributed to the petitioner
and only a general allegation has been leveled; that nothing has
been mentioned in the FIR as to whose fire hit the deceased; that
under the similar circumstances, the co-accused has been granted
bail, therefore, the petitioner also deserves the same concession;
Criminal Petition No. 458/2021
2
that neither any empty nor the weapon of offence has been
recovered from the petitioner and that the investigation was
conducted dishonestly and real facts were suppressed just to frame
the petitioner in the false case.
4.
On the other hand, learned Law Officer has defended
the impugned judgment. He mainly contended that as per the law
laid down by the superior courts, the order of the Trial Court is not to
be interfered with unless there is perversity in the order. He added
that during investigation, the role of causing fire shot was attributed
to the petitioner, therefore, he is the main accused and 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.
6.
Admittedly, no specific role has been ascribed to the
petitioner in the FIR and the allegation leveled against him is of
general nature. It was during investigation that the role of fire shot
was attributed to the petitioner. However, it was the case of the
petitioner that the Police Diaries were manipulated by the Police. In
paragraph 6 of the impugned order, the learned High Court has
admitted this fact but it did not take into consideration this aspect of
the matter on the pretext that only tentative assessment of the
available record is required. Admittedly vide order dated 03.02.2021
passed by the learned Trial Court, the co-accused of the petitioner
namely Liaquat Ali has been granted bail by the learned Trial Court
on the ground that there is no mention of eye-witnesses in the FIR
and there is conflict between the role assigned to him in the FIR and
the statements made by the eye-witnesses. On our query, learned
Law Officer admitted that the record was tampered with during the
investigation. In these circumstances, when the learned High Court
had admitted about the tampering of the record, while following the
rule of consistency the petitioner is also entitled for the same relief.
Reliance is placed on the case reported as Muhammad Fazal @ Bodi
Vs. The State (1979 SCMR 9). Admittedly, neither any empty was
taken into possession from the place of occurrence nor the weapon of
offence has been recovered from the petitioner. From the tentative
assessment of the record and keeping in view the provision of
Criminal Petition No. 458/2021
3
Section 497(2) Cr.P.C, we are of the considered view that the
petitioner has made out a case squarely falling within the ambit of
further inquiry as envisaged under Section 497(2) Cr.P.C. As a
consequence, we convert this petition into appeal, allow it and admit
the petitioner to post-arrest 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
14th of June, 2021
Not Approved For Reporting
Khurram
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
Present:
MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL
MR. JUSTICE QAZI MUHAMMAD AMIN AHMED
Criminal Petition No.46-P of 2015
Iftikhar Ali
…Petitioner
Versus
Gul Rehman and another
..Respondent
For the Petitioner(s):
Mr. Altaf Khan, ASC
For the Respondent(s): Mr. Muhammad Nisar,
Addl. A.G. K.P.
Date of hearing:
12.7.2021
ORDER
Qazi Muhammad Amin Ahmed, J-. Fazal Ilahi, 48, in the
backdrop of a dispute over immovable property was shot dead at 8:00 p.m.
on 1.1.2012 within the precincts of Police Station Zaida District Swabi; the
incident was reported by his brother Iftikhar who singularly blamed Gul
Rehman respondent for the crime; convicted by a learned Additional
Sessions Judge at Swabi under clause (b) of Section 302 of the Pakistan
Penal Code, 1860, he was sentenced to imprisonment for life vide judgment
dated 16.7.2012, however, acquitted from the charge by a Division Bench of
Peshawar High Court vide impugned judgment dated 18.02.2015, vires
whereof, are being assailed on the ground that in the face of overwhelming
evidence primarily comprising ocular account by natural witnesses, there
was no occasion for the High Court on prosecution’s alleged failure on
peripheral issues, an error that, according to the learned counsel for the
petitioner, results into miscarriage of justice.
2.
We have gone through the impugned reasoning recorded by
the High Court to overturn the conviction and found it to have been swayed
primarily by a plea of alibi supported by the prayer leader of the village
mosque who, however, opted to stay away from the witness-box alongside
the respondent himself. Similarly, certain discrepancies in the site plan
were viewed to prosecution’s detriment without having been confronted to
the witnesses during the trial. Unscathed survival of the witnesses was also
2
received with suspicion by the High Court. Generality of the above
observations, notwithstanding, nonetheless, the High Court does not
appear to have taken any exception to the ocular account furnished by the
witnesses of locality in a small rural neighborhood, unanimously pointing
their finger upon the respondent. We consider it expedient to grant leave to
reappraise entire evidence with a view to secure the ends of justice. Send
for Gul Rehman 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, executable through Station
House Officer concerned within a fortnight.
Judge
Judge
Peshawar,
12th July, 2021
Azmat/-
‘Not approved for reporting’
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mazhar Alam Khan Miankhel
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.46-P of 2016
(Against the order dated 20.04.2016 passed by the Peshawar High Court Peshawar
passed in Cr. R. No.66-P/2015 with Cr. Misc. No.189-P/2016)
Muhammad Iltaf Khan
…Petitioner(s)
Versus
Basheer and others
…Respondent(s)
For the Petitioner(s):
Mr. Muhammad Tariq Hoti, ASC
Mr. Muhammad Ajmal Khan, AOR
For the State:
Mr. Shumayl Butt, Advocate General KP
Malik Akhtar Hussain, Addl. Advocate General
KP
Mr. Aamir Javed, Addl. Attorney General for
Pakistan.
Date of hearing:
26.07.2021
ORDER
Qazi Muhammad Amin Ahmed, J.- Aggrieved by certain
imputations, viewed as calculatedly malignant, the petitioner instituted
a criminal complaint under section 500 of the Pakistan Penal Code,
1860 (P.P.C.), directly in the Court of Session at Mardan against his
accusers, respondents herein; they were summoned pursuant to the
process of the Court to face indictment vide order dated 18.05.2015,
challenged on the ground that the learned Sessions Judge could not
have issued the process without taking cognizance in derogation to the
procedure provided under section 193 of the Code of Criminal
Procedure, 1898 (the Code). The argument weighed with a learned
Judge-in-Chamber of the Peshawar High Court and the process was
quashed in pursuance thereto vide impugned judgment dated
20.04.2016, being assailed herein. Respondents alongside the Attorney
Criminal Petition No.46-P/2016
2
General for Pakistan and Advocate General Khyber Pakhtunkhwa were
sent for, latter to assist the Court.
2.
According to the learned counsel for the petitioner, in the
wake of addition of section 502-A in the P.P.C., introduced by Act IX of
2004, there was no embargo left in the field for the Court of Session,
standing in impediment to assumption of cognizance by itself for
offences enumerated under Chapter XXI thereof as the said amendment
expressly excluded the conventional magisterial route; he has laid
emphasis on the non-obstante clause inserted in section 502-A, to argue
that it expressly left out application of the Code. Prominent amongst his
various submissions and references was the argument that the
legislature, in its wisdom and competence, devised a special procedure
for expeditious disposal of cases of defamation within a stipulated
timeframe and, thus, the Court of Session was consciously empowered
to take direct cognizance in order to obviate procedural delays, a
purpose that can be clearly ‘Read Down’ without possibility of error; he
was supported by the Advocate General Khyber Pakhtunkhwa who
addressed on Court call.
Learned counsel for the respondents, contrarily, defended the
impugned judgment on the ground that non-obstante clause merely
envisaged prosecution of the offence by a Court of Session,
notwithstanding the quantum of sentence provided therefor and, thus,
it could not be construed to have swept away the entire mechanism
provided under the Code as embargo under section 193 of the Code
expressly stood in impediment thereto; he has referred to section
203-A, B and C of the Code to argue that expression “taking of
cognizance” of designated offences, “in the court of competent
jurisdiction” is conspicuously missing in section 502-A of the P.P.C. to
unambiguously suggest that the complaint was to have been routed
through the regular procedure; he has been supported by the Deputy
Attorney General for Pakistan.
3.
Heard. Record perused.
4.
Section 193 of the Code places a complete and clear bar on
taking of cognizance of any offence by the Court of Session in its
original jurisdiction unless the case is sent up by a Magistrate under
subsection 2 of section 190 of the Code. It is petitioner’s case that
introduction of section 502-A inserted through the Defamation
(Amendment Act IX) of 2004 in the P.P.C. circumvents the supra bar
Criminal Petition No.46-P/2016
3
and a complaint for prosecution of defamation under section 500 of the
P.P.C can be directly instituted in the Court of Session for decision
within the stipulated period of ninety days; the argument is built on the
non-obstante clause that reads as under:
“502-A.
Trial
of
offences
under
this
chapter.-
Notwithstanding anything contained in the Code of
Criminal Procedure, 1898 (Act V of 1898), the Court of
Session shall have the jurisdiction to try an offence
under this Chapter and decide it within a period of
ninety days.”
A non-obstante clause in a Statute is a potent legislative tool often
employed, essentially to achieve a limited/specific statutory purpose,
nonetheless, the concomitant overriding effect is purpose specific
without impinging upon the structural integrity of the Statute; it merely
presents a restricted deviation or departure without disturbing the
overall functionality of the Statute.
Offence under section 500 of the P.P.C. is punishable with
imprisonment that may possibly extend to a period of 5 years and as
such, triable by a Magistrate. The legislature in its wisdom desired an
expeditious trial of the offence with right of appeal going to the High
Court and this appears to be the dominant purpose for insertion of
section 502A in the P.P.C. with no bearings upon the procedure,
otherwise provided for the institution of a complaint; aforesaid
construction is supported by the law declared by this Court in the cases
reported as Syed Azhar Hussain Shah and another Vs. The State and
others (2019 S C M R 537), Major ((Retd.) Barkat Ali and others Versus
Qaim Din and others (2006 S C M R 562), Habibul Wahab-el-Kheiri Vs.
Ch. Saeed Ahmad (1979 S C M R 545), Rahim Dad Vs. The State and
another (1980 P Cr. L J 500), Riffat Hayat Vs. Judge Special Court for
Suppression of Terrorist Activities, Lahore and another (1994 SCMR
2177), JIK Industries Limited and Ors. Vs. Amarlal Versus Jumani and
Ors. (AIR 2012 SC 1079), Madhav Rao Jivaji Rao Scindia Bahadur and
Ors. Vs. Union of India (UOI) and Ors. (AIR1971 SC 530), Central Bank of
India Vs. State of Kerala and Ors. (2009) 4 SCC 94, Balveer Singh and
Ors. Vs. Respondent: State of Rajasthan and Ors. (AIR 2016 SC 2266),
P.C. Gulati Vs.Lajya Ram Kapur and Ors (AIR 1966 SC 595) and Basdeo
and Ors. Vs. Emperor (AIR 1945 All 340).
Criminal Petition No.46-P/2016
4
The High Court though well within the remit of law, nonetheless,
should have preferred to return the complaint for its proper institution,
therefore,
the
complainant/respondent,
successive
failures,
notwithstanding, may still present his complaint before the Area
Magistrate for its onward transmission to the Court of Session for
redressal of grievance complained, if so advised. Petition fails. Leave
declined.
Judge
Judge
Announced in open Court on 16.11.2021
at Islamabad
Approved for Reporting
Azmat/*
Judge
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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 No.460 OF 2021
(Against
the
order
dated
23.02.2021
passed
by
the
Lahore
High
Court
Rawalpindi Bench in Crl. Misc. No.246-
B/2021)
Noor Khan
…Petitioner(s)
Versus
The State
…Respondent(s)
For the Petitioner(s):
Ms. Hifza Ibrar Bukhari, ASC
Syed Rifaqat Hussain Shah, AOR
For the State:
N.R.
Date of hearing:
24.05.2021.
ORDER
Qazi Muhammad Amin Ahmed, J.- The petitioner was
surprised by a police contingent on 05.12.2020 within the precincts of
Police Station Civil Lines, Rawalpindi with 1320 grams of cannabis,
concealed in a shopping bag; he was declined bail throughout, lastly by
a learned Judge-in-Chamber of Lahore High Court Rawalpindi Bench
vide impugned order dated 23.02.2021; he seeks leave to appeal
therefrom.
2.
Heard. Record perused.
3.
Red-handed with seizure of considerable quantity of the
contraband squarely brings petitioner’s case within the remit of
‘Prohibition, contemplated by section 51 of the Control of Narcotic
Substances Act, 1997; his claim of false implication is an issue that
cannot be attended without going beyond the barriers of tentative
assessment, an exercise prohibited by law. On our own analysis of the
record, view concurrently taken by the courts below is not open to any
legitimate exception. Petition fails. Leave declined.
Judge
Judge
Islamabad, the
24th May, 2021
Not approved for reporting
Azmat/-
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Umar Ata Bandial
Mr. Justice Faisal Arab
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.464 of 2020
(Against
impugned
judgment
dated
23.4.2020 passed by Peshawar High Court
Peshawar in Cr.M.(BA) No.843-P/2020)
Muhammad Hayat
…Petitioner(s)
Versus
The State & another
…Respondent(s)
For the Petitioner(s):
Mr. Mazullah Barkandi, ASC
Syed Rifaqat Hussain Shah, AOR
For the State:
Ms. Aysha Tasneem, ASC
along with Raza Raban SI, Peshawar
For the Complainant:
Mr. Hasnain Ali, ASC
Date of hearing:
05.06.2020.
ORDER
Qazi Muhammad Amin Ahmed, J.- Aurangezb along with
his nephew Intikhab Alam was asleep on 5.2.2020 in his Hujjra
situated within the precincts of Police Station Mithra, Peshawar, when
at 10:00 p.m. they were surprised by armed intruders; they ostensibly
demanded to search the premises so as to apprehend the hiding
Talbans and seize their arms; they subdued the inmates including the
children after tying them in different rooms and left the scene with the
valuables comprising cash, gold ornaments and a vehicle. The
complainant extricated himself and lodged report with the police at
10:00 a.m. As the investigation progressed, the petitioner was arrested
alongside co-accused; he was identified by the witnesses in a test
identification parade; pursuant to disclosure, he led to the recovery of
some of the robbed articles.
Criminal Petition No.464 of 2020
2
2.
Heard. Record perused.
3.
Alleged discrepancy in the actual number of assailants,
stressed at inordinate length is an issue that cannot be settled within
the restricted scope of tentative assessment of the material collected by
the investigating agency. Similarly, flaws attributed to the test
identification parade cannot be attended without undertaking a
journey into prohibited territory. These are the issues, essentially to be
determined by the trial Court, on the strength of evidence, yet to be
recorded. In the absence of any apparent motive, suggestive of malice,
identification of the accused coupled with recovery of the looted articles
from within the safety of a dwelling at an odd hour of night to the
horrors of the inmates that included children and women, we do not
feel persuaded in our discretion to allow the request. Petition fails.
Leave declined.
Judge
Judge
Judge
Islamabad, the
5th June, 2020
Not approved for reporting
Azmat/-
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mazhar Alam Khan Miankhel
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.47-P/2017
(Against the judgment dated 08.9.2017 of the Peshawar High Court
Peshawar passed in Cr.A. No.338-P/2016)
Sui Northern Gas Pipelines Ltd through
its G.M. Hayatabad Peshawar
…Petitioner(s)
Versus
M/s Saif Textile Mills Ltd. 3rd Floor Kalsoom Plaza, 2020,
Blue Area, Islamabad, Industrial Estate Gadoon Amazai,
District Swabi
…Respondent(s)
For the Petitioner(s):
Mr. Asad Jan, ASC
For the Respondent(s):
Mr. Shahid Qayyum Khattak, ASC
Mr. Tasleem Hussain, AOR
Date of hearing:
30.6.2021
ORDER
Qazi Muhammad Amin Ahmed, J.- Respondent is a textile
unit, set up in Gadoon Amazai, incorporated under the Companies
Ordinance, 1984 with the name and style of M/s Saif Textile Mills Ltd,
powered on natural gas supplied by Sui Northern Gas Pipelines Limited
(SNGPL) through Meter No.74058, initially installed at the premises on
27.11.2009. The gas company noted a substantial shortfall in the
readings recorded by the meter and replaced it with a new one on
24.01.2010. Loss to the exchequer was estimated as Rs.11.68 million. It
is in this backdrop that the respondent arraying, amongst others
Federation of Pakistan along with Gas & Regulatory Authority, SNGPL
and Executive Engineer, SNGPL filed W.P. No.3433 of 2011 in the
Peshawar High Court, seeking multiple declarations and prayers; the
High Court, however, vide order dated 20.12.2011 transmitted the writ
petition to the District & Sessions Judge/Tribunal Protection Consumer
Interest Peshawar to redress respondent’s grievance; it also restrained
the department from disconnecting the gas connection. The Sessions
Judge transferred the complaint to the Consumer Court constituted
under the Khyber Pakhtunkhwa Consumer Protection Act, 1997
(Khyber Pakhtunkhwa Act No.VI of 1997), “the Act”. The complaint was
dismissed vide order dated 08.04.2015, however, the High Court, vide
order dated 3.7.2015, once again remanded it for decision afresh with
results no different than earlier vide order dated 21.04.2016, impugned
Criminal Petition No.47-P/2011
2
by the respondent before the High Court. The High Court vide
impugned judgment dated 8.9.2017 accepted the appeal in the following
terms:-
“For the reasons discussed above, I while
accepting this appeal, set aside the judgment of
the learned Consumer Court dated 21.04.2016
and allowed the complaint”
2.
Learned counsel for the petitioner contends that there was
no occasion for the High Court, in the first place, to transmit the
Constitution petition involving factual controversies requiring technical
verification for determination to the Consumer Court and, thus, on each
occasion the Consumer Court rightly dismissed the complaint. It is next
argued that the Act is a Statute devised to protect legitimate rights of a
consumer to have best value for his money and for that places specified
obligations upon the manufacturer as is evident from its preamble; the
respondent is not a consumer nor the petitioner a manufacturer within
the contemplation of section 2(c) and 2(j) of the Act and, thus, the High
Court had misdirected itself to refer the issue to the Court, an error
rectified through successive dismissals leaving no space for the High
Court to allow the complaint by putting at peril a colossal amount due
to the public exchequer, concluded the learned counsel.
3.
Contentions raised need consideration; leave, inter alia, is
granted to the petitioner. Mr. Shahid Qayyum Khattak, ASC has
entered appearance to defend the impugned order. Office is directed to
prepare the paper book with parties, at liberty to place the additional
documents, if any. Since, a short matter involving public exchequer is
involved, the office shall cause fixation of the appeal with all convenient
dispatch.
Cr.M.A. No.61-P/2017
4.
Operation of the impugned judgment shall be held in
abeyance.
Judge
Judge
Peshawar, the
30th June, 2021
Not approved for reporting
Azmat/-
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IN THE SUPREME COURT OF PAKISTAN
( Appellate Jurisdiction )
Present:
Mr. Justice Sardar Tariq Masood
Mr. Justice Amin-ud-Din Khan
Mr. Justice Syed Hasan Azhar Rizvi
CRIMINAL PETITION NO.475 OF 2022
(On appeal against the order dated 15.04.2022 passed by the
Lahore High Court, Lahore, in Crl. Misc. No.11519-B of 2022)
Amir Faraz
…
…
Petitioner
Versus
The State
…
…
Respondent
For the appellant :
Mian Pervaz Hussain, ASC
(via video link from Lahore)
Mr. Anis M. Shahzad, AOR
For the State
:
Mr. Muhammad Jaffar, Addl. PG Pb
(via video link from Lahore)
For respondent No.2 :
Sardar M. Latif Khan Khosa, Sr. ASC
Syed Iqbal Hussain Shah Gillani, ASC
Date of hearing
:
08.12.2022
JUDGMENT
SARDAR TARIQ MASOOD, J.- Through this Criminal
Petition, Amir Faraz complainant of case FIR No.201/2021, dated
15.05.2021, registered at Police Station City Farooqabad, District
Sheikhupura, impugns the order dated 15.04.2022, through which
post arrest bail was granted to respondent No.2-Nadeem Zulf who
is accused in the above said FIR.
2.
Learned counsel for the petitioner/complainant contends
that within one hour and twenty minutes of the occurrence, the
matter was reported to the police and in the said prompt FIR it was
specifically mentioned that respondent Nadeem Zulf fired with his
pistol hitting Naseem Zulf deceased on right side of his forehead,
who succumbed to the said injury; that Nadeem Zulf alongwith
others committed murder of his two brothers (Naseem Zulf and
Waseem Zulf) when they were present in the land of Naseem Zulf,
the brother-in-law of the complainant; that it is an occurrence
Crl.P.475/2022
2
wherein two brothers have been done to death by their own brother
Nadeem Zulf and others; that the statements of the eye witnesses
are available on record confirming the prosecution version
mentioned in the FIR; that the High Court while granting bail to
the respondent has relied upon the opinion of the second
Investigating Officer which was based upon a single case Diary
dated 22.09.2021, when Rizwan Akram, Abdul Razzaq and
Muhammad Ishtiaq made statements that, when they were passing
near the place of occurrence, they saw the accused and
complainant party quarreling with each other; that said Rizwan
Akram, Abdul Razzaq and Muhammad Ishtiaq earlier appeared
before the Investigating Officer, but after about four months they
took another stance before the second Investigating Officer and on
their assertion the said Investigating Officer concluded that
although the respondent was present there but he was empty
handed; that said Rizwan Akram, Abdul Razzaq and Muhammad
Ishtiaq neither made witnesses in this case nor their statements
under section 161 of the Code of Criminal Procedure (Code) were
recorded and even their names were not mentioned in the report
under section 173 of the Code; that according to the second
Investigating Officer, the complainant party was aggressor but
surprisingly no one from the respondent’s side received even a
single scratch but on the other hand, two persons lost their lives
from the side of the complainant party; that no cross-case was ever
got registered by the respondent’s side against the complainant
party regarding their alleged aggression; that respondent after
getting bail is misusing the concession of bail by hampering the
trial as on 18.03.2022 the charge was framed and thereafter, on
numerous dates of hearing, the witnesses had appeared but the
defence counsel avoided again and again by requesting for
adjournment; that, on the other hand, the respondent is
pressurizing his own family members including the complainant
not to pursue the case against him; that the misuse of concession
of bail can be considered from this fact that on 18.07.2022,
statements of two witnesses were recorded but on the request of
the defence counsel the cross-examination was reserved and they
have not been cross-examined till now.
Crl.P.475/2022
3
3.
On the other hand, learned counsel for the respondent, at
the very outset, relied upon the case of Mst. Sughran Bibi vs. the
State (PLD 2018 SC 595) and contends that it is the duty of the
Investigation Officer to dig out the truth which was done in this
case; that it was the case of Hanan Zulf son of Nadeem Zulf that
he actually committed murder of both the deceased when they
made aggression upon respondent Nadeem Zulf; that from the
place of occurrence six crime empties were recovered and found
wedded with the pistol which was recovered from Hanan Zulf; that
bail was granted by a competent Court and cannot be cancelled
until the order is perverse, patently illegal and factually incorrect
and has resulted into miscarriage of justice which is lacking in this
case; that as trial has commenced, bail should not be cancelled.
Besides Sughran Bibi’s case (supra) the learned counsel has relied
upon certain other judgment in the cases of Muhammad Sharif vs.
Shafqat Hussain alias Shaukat etc (1999 SCMR 338), Sami Ullah
and another vs. Laiq Zada and another (2020 SCMR 1115), Sidra
Abbas vs. the State and another (2020 SCMR 2089) and
Muhammad Shoaib vs. the State and another (2022 SCMR
326).
Lastly contends that the co-accused Hasan Iqbal who fired
upon the other deceased namely Waseem Zulf hitting on his right
arm, was granted bail by the High Court while taking into
consideration his role and opinion of the Police Officer and case of
the respondent is at par with the case of Hasan Iqbal, co-accused
4.
Learned Addl. PG., while supporting the arguments of the
learned counsel for the petitioner/complainant contends that
commencement of trial is not a hurdle when bail granting order is
perverse and factually incorrect, as in the present case, the
impugned order is based upon an opinion of a Police Officer which
is not backed by strong material and data; that bail was granted to
the respondent when charge had already been framed and if bail
can be granted when trial had already been commenced, the same
can be cancelled on the same principle; that due to the dispute
over the inherited property, the respondent committed murder of
his two real brothers and in that eventuality, he was not entitled to
concession of bail, especially when the subsequent investigation
Crl.P.475/2022
4
was not based on solid material. Further contends that although
six empties were recovered from the place of occurrence and the
same were found to have been fired from the weapon recovered
from Hanan Zulf but said recovery is just a corroborative piece of
evidence and even the negative report of FSL being a corroborative
piece of evidence cannot be considered at the time of grant or
refusal of a bail. On the other hand, the deceased Waseem Zulf
received the injuries having different dimensions and the injury
attributed to the respondent on the person of Naseem Zulf was
totally of different dimension than the injuries on the person of
Waseem Zulf, indicating that different weapons had been used in
the occurrence.
5.
Heard, perused the record. Although two persons lost their
lives but complainant thereafter approached the Police while going
to the Police Station and lodged the report within one hour and
twenty minutes of the occurrence, when the Police Station was at a
distance of 2½ kilometers and while lodging the FIR, he
categorically attributed fatal injury on the head of Naseem Zulf
deceased, to respondent Nadeem Zulf. He is the sole accused who
caused solitary fatal firearm injury with pistol to Naseem Zulf
deceased, whereas the remaining accused fired upon other
deceased i.e. Waseem Zulf. A specific pistol shot injury is
attributed to respondent Nadeem Zulf which got full support from
the medical evidence and the injury attributed to him was
sufficient to cause death of the said deceased. The witnesses
mentioned in the FIR, got recorded their statements on the same
day under section 161 of the Code and supported the version put
forward by the complainant in the FIR.
6.
In the earlier investigation the respondent was found guilty
but
subsequently
the
Investigation
was
conducted
by
SHO/Investigating Officer who, after recording the statements of
Rizwan Akram, Abdul Razzaq and Muhammad Ishtiaq on
22.9.2021, opined that although the respondent was present at the
place of occurrence but he was empty handed. According to
learned Addl. PG., the three witnesses even appeared before the
earlier Investigating Officer but they again appeared before the
second Investigating Officer after more than four months and
Crl.P.475/2022
5
stated that they saw both the parties quarreling. We have observed
that while relying upon their assertion, the Investigating Officer
opined as mentioned above. No independent statement of Rizwan
Akram, Abdul Razzaq and Muhammad Ishtiaq under section 161
of the Code, was recorded. They were not mentioned in the report
under section 173 of the Code as PWs in this case. Except the
above mentioned statement of these witnesses, no other material
was collected by the second Investigating Officer who opined that it
was the complainant party who was aggressor. According to the
Investigating Officer Hanan Zulf, one of the accused, claimed that
he had committed the murder of these persons. Although the
second Investigating Officer opined that complainant party was
aggressor but surprisingly, nobody from the respondent side
received even a single scratch. The Investigating Officer did not
make effort to get recorded the statement of Hanan Zulf under
section 164 of the Code, so a bald inadmissible statement of co-
accused that too, before the police, was taken into consideration
for forming such opinion. No doubt, the opinion of the
Investigating Officer has some persuasive value, if the same is
based upon a strong and concrete material which is lacking in the
present case.
7.
We have also observed that Nadeem Zulf respondent,
alongwith two co-accused earlier filed petition for protective pre-
arrest bail before the Lahore High Court and in the said petition, it
is nowhere asserted that complainant party was aggressor nor any
ground regarding cross-version, was agitated, meaning thereby
that at that time, this plea was not taken by the respondent and
was subsequently agitated, due to which the subsequent
Investigating Officer formed the said opinion and due to this
circumstance his opinion has no persuasive value at the stage of
bail and it would be the trial Court which after recording the
evidence will appreciate this aspect of the case.
As far as the cases referred by the learned counsel regarding
opinion of the Investigating Officer is concerned, the facts of
Sughran Bibi’s case (supra) are different because in the present
case the respondent side did not make any effort to lodge any
report regarding the aggression of the complainant side and even
Crl.P.475/2022
6
any private complaint was never filed by the respondent side
against the complainant party. We have also observed that in
Sughran Bibi’s case (supra) it was observed that it is the duty of
the Investigating Officer to dig out the truth but the said exercise
should be based upon concrete admissible material and not a bald
opinion, and Courts are not bound to accept the bald opinion of
any Investigating Officer which is not based upon a reasonable,
plausible and strong material. Even otherwise, Sughran Bibi’s case
(supra) has different facts and was decided on different proposition
i.e. regarding registration of second or subsequent FIR.
8.
It is settled that in criminal matters, each case has its own
peculiar facts and circumstances and the same has to be decided
on its own facts. In the present case, the petitioner is specifically
nominated in the FIR for causing firearm injury on the head of the
deceased and the said injury was spelt out from the medical
evidence. He was found involved in the commission of offence in
the first investigation and the ipse dixit of the second Investigating
Officer, especially in the above mentioned circumstances, had no
persuasive value. Although learned counsel for the respondent has
relied upon certain judgments and even the learned counsel for the
petitioner has also placed reliance on certain judgments qua
opinion of the Investigating Officer but we observe that in all the
said judgments, the basic thing, which has to be considered by the
Court, is whether the said opinion is based upon cogent and
concrete material. In the absence of any material/data no credit
can be given to such ipse dixit of the Police Officer. If the plea i.e.
ipse dixit of the police, on the basis of which the respondent has
been released on bail is accepted, the same would amount to
discredit the version of the eye witnesses at this initial stage of the
case which of course is not permissible in the peculiar
circumstances of the case. The practice adopted by the learned
High Court through the impugned order is not appreciable. The
High Court while granting bail to the respondent has ignored the
relevant material indicating, prima-facie, involvement of the
accused in the commission of the crime and took into account
irrelevant material which had no nexus to the question of grant of
bail to the accused. It is settled law that bail granting order could
be cancelled if the same was perverse. An order which is, inter-alia,
Crl.P.475/2022
7
entirely against the weight of the evidence on record, by ignoring
material evidence on record indicating, prima-facie, involvement of
the accused in the commission of crime, is always considered as a
perverse order, which is in present case as material evidence on
the record brought by prosecution promptly, was not given any
weight by the High Court and a perverse order was passed upon a
baled opinion of second Investigating Officer.
9.
So for principle of rule of consistency is concerned, although
Hasan Iqbal was granted post arrest bail by the High Court vide
order dated 18.01.2022 but we observed that he was attributed a
fire shot, hitting on right arm of Waseem Zulf another deceased
but said injury was not fatal and was not the cause of death. In
that eventuality, learned counsel for the respondent could not
satisfy our query as to how respondent’s case is at par with Hasan
Iqbal because the fire shot attributed to the present respondent, on
the head of Naseem Zulf, was the cause of death. So far argument
of the learned counsel for respondent that six empties recovered
from the place of occurrence were found to have been fired from
the pistol allegedly recovered from Hanan Zulf, cannot be
considered at this stage as the same at the most could be
considered as a corroborative piece of evidence but in the present
case there is substantive ocular account, whose names are
mentioned in the FIR. Likewise, non-recovery of weapon from the
respondent is not sufficient for not cancelling the bail because it is
always considered as a corroborative piece of evidence. It is settled
principle of law that corroboratory piece of evidence, if missing,
cannot discard the ocular account recorded on the day of
occurrence, at bail stage.
10.
So far argument of the learned counsel that the trial has
commenced, we observed that the charged was framed on
18.03.2022 but the High Court granted bail to respondent on
15.4.2022 when trial had already been commenced and if bail can
be granted after the commencement of trial, the same can be
cancelled even after the commencement of trial, especially when
bail granting order is perverse and based upon ipse dixit of Police,
which is not based upon strong material or data. Of course, bail
Crl.P.475/2022
8
can be cancelled if bail granting order is erroneous and resulted
into miscarriage of justice, as done in this case.
11.
It is also a circumstance that after getting bail, according to
learned counsel for the petitioner, the respondent is misusing the
same by hampering the trial as on numerous dates of hearing the
prosecution witnesses appeared before the Court but their
statements were not recorded on the request of defence counsel.
Even on 18.07.2022, statements of two prosecution witnesses were
recorded but their cross-examination was reserved on the request
of the defence counsel and subsequently, till date, the said
witnesses have not been cross-examined. This aspect of the case is
also indicative of the fact that the bail is being mis-used by
hampering the trial. Even otherwise, no hard and fast rule can be
laid down that bail should not be cancelled merely for the reason
that the trial has commenced or is likely to commence because
every case is to be examined in the light of its own facts, and the
crucial question that arises for determination would be as to
whether a person is entitled to grant of bail under the provision of
section 497 Cr.P.C. which, as already observed, the respondent
was not entitled to, especially, when there is sufficient material
available against him in the shape of ocular account as well as the
medical evidence and the circumstance that he alongwith other
accused committed the murder of his two real brothers. The
judgments relied upon by the learned counsel for the respondent,
to this effect, having different facts and circumstances, could not
be applied in this case.
12.
All the above mentioned circumstances have been ignored by
the High Court while granting bail to the respondent, record to that
extent has not been examined by the High Court and same order
can be considered as perverse, because the material collected by
the first Investigating Officer, on the day first, was totally ignored
by the High Court while granting bail in such a double murder
case.
13.
Due to the above mentioned reasons, while converting this
petition into an appeal the same is allowed and the impugned
order passed by the High Court is set aside and the bail granted to
Crl.P.475/2022
9
the respondent Nadeem Zulf is hereby cancelled/recalled. The
above observations are tentative in nature and will have no bearing
upon subsequent proceedings during trial as the trial Court is
required to decide the case on its own merits and the evidence
recorded during the trial, without being influenced by this order.
These are the reasons of our short order dated 08.12.2022, which
is reproduced as under :
“For reasons to be recorded later, this petition is converted
into appeal and allowed. Bail already granted to the
respondent is hereby recalled.”
Judge
Judge
Judge
Islamabad
09.01.2023
M.Saeed/*
APPROVED FOR REPORTING.
Judge
Crl.P.475/2022
10
* Even otherwise, no hard and fast rule can be laid down that bail should not be cancelled merely for the reason that the trial has commenced or is likely to
commence because every case is to be examined in the light of its own facts, and the crucial question that arises for determination would be as to whether a
person is entitled to grant of bail under the provision of section 497 Cr.P.C. which, as already observed, the respondent was not entitled to the concession of bail
especially when there is sufficient material available against him in the shape of ocular account as well as the medical evidence and the circumstance that he
alongwith other accused committed the murder of his two real brothers. The judgments relied upon by the learned counsel for the petitioner, having different
facts and circumstances could not be relied upon in this case.
** It is settled that in criminal matters, each case has its own peculiar facts and circumstances and the same has to be decided on its own facts. In the present
case, the petitioner is specifically nominated for causing firearm injury on the head of the deceased and the said injury was spelt out from the medical evidence.
He was found involved in the commission of offence in the first investigation and the ipse dixit of the investigating officer, especially in the above mentioned
circumstances, had no persuasive value. Although learned counsel for the respondent has relied upon certain judgments and even the learned counsel for the
petitioner has also placed reliance on certain judgments qua opinion of the investigating officer but we observe that in all the said judgments, the basic thing,
which has to be considered by the Court, is whether the said opinion is based upon cogent and concrete material. In the absence of any material/data no credit
can be given to such ipse dixit of the police officer. If the plea i.e. ipse dixit of the police, on the basis of which the respondent has been released on bail is
accepted, the same would amount to discredit the version of the eye witnesses at this initial stage of the case which of course is not permissible in the peculiar
circumstances of the case. The practice adopted by the learned High Court through the impugned order is not appreciable. The High Court while granting bail to
the respondent has ignored the relevant material indicating, prima-facie, involvement of the accused in the commission of the crime and took into account
irrelevant material which had no nexus to the question of grant of bail to the accused. It is settled law that bail granting order could be cancelled if the same was
perverse. A perverse order was defined as an order which was, inter-alia, entirely against the weight of the evidence on record, by ignoring material evidence on
record indicating, prima-facie, involvement of the respondent in the commission of crime.
Due to the above mentioned reasons, while converting this petition into an appeal, the impugned order passed by the High Court is set aside and the bail granted
to the respondent is hereby recalled. These are the reasons of our short order dated 08.12.2022 which is reproduced as under :
“For reasons to be recorded later, this petition is converted into appeal and allowed. Bail already granted to the respondent is hereby recalled.”
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
Present:
MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL
MR. JUSTICE QAZI MUHAMMAD AMIN AHMED
Criminal Petition No.48-P/2015
(Against the judgment dated 19.02.2015 passed by the
Peshawar High Court Mingora Bench (Dar-ul-Qaza) Swat in
Crl. Appeal No.182/2014)
Muhammad Daud and others
…Petitioners
Versus
Syed Abid Ali and another
..Respondents
For the Petitioner(s):
Mr. Naveed Akhtar, ASC
For the Respondent(s): Mr. Muhammad Inaam Yousfzai,
Addl. A.G. K.P.
Date of hearing:
12.7.2021
ORDER
Qazi Muhammad Amin Ahmed, J-. A shoot out within the
precincts of Jehanzaib College Saidu Sharif Swat resulted into multiple
casualties, each youthful; Muhammad Fawad (PW-6), Zafar Ali (PW-9)
survived the life of fire, however, Muhammad Musa and Hashim Khan
succumbed to their wounds. The petitioner along with Nasir, since
proclaimed offender, was arrayed as the culprits in the crime report lodged
by Muhammad Daud Khan (PW-18); during the trial, he was joined by other
witnesses. Prosecution failed at the first tier as a learned Additional
Sessions Judge acquitted the respondent from the charge vide judgment
dated 14.6.2014; appeal against acquittal met with no better fate vide
impugned judgment dated 19.2.2015, vires whereof, are being assailed on
the ground that both the courts, in concurrence, ran into grievous error by
relying upon reticent deposition by the injured witnesses, notwithstanding,
that other eye witnesses present at the spot categorically named the
respondent as well as the proclaimed offender, both spearheading the
assault in a unison inside an educational premises. Forensic report
confirming use of two different weapons with three empties wedding one
weapon left at the spot, was a circumstance that heavily reflected upon
respondent’s culpability, next argued the learned counsel.
2
2.
We have examined the record to find that though both the
injured witnesses categorically confirmed receipt of fire shot injuries at the
stated venue and point of time in the backdrop, suggested in the crime
report, however, given their positions in the opposite direction in the
crowded canteen, they had not visually seen the respondents, taking on the
deceased, a shortcoming seemingly made up by other witnesses present at
the spot. In the totality of circumstances and having regard to the
absconsion of one of the assailants, we consider it expedient to grant leave
so as to reappraise entire evidence with a view to secure the ends of justice.
Send for Abid Ali through bailable warrants in the sum of Rs.200,000/-
with one surety in the like, returnable to the Assistant Registrar of this
Court, executable through Station House Officer concerned, within a
fortnight.
Judge
Judge
Peshawar,
12th July, 2021
Azmat/-
‘Not approved for reporting’
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
MR. JUSTICE JAWWAD S. KHAWAJA, HCJ
MR. JUSTICE DOST MUHAMMAD KHAN
MR. JUSTICE QAZI FAEZ ISA
Criminal Petition No.488 of 2015
(Against the order dated 5.6.2015 of
the Lahore High Court, Lahore passed
in Crl. Misc. No.5654-B of 2015)
Zaigham Ashraf
…
Petitioner(s)
Versus
The State, etc.
…
Respondent(s)
For the petitioner(s):
Ms. Bushra Qamar, ASC
Syed Rafaqat Hussain Shah, AOR
For the State:
Ch. Zubair Ahmed Farooq, Addl. PG
Mr. M. Hanif, SI, P.S. Malakwal.
For the complainant:
Rai Muhammad Nawaz Kharal, ASC
Date of hearing:
19.8.2015
JUDGMENT
Dost Muhammad Khan, J-. The petitioner, Zaigham Ashraf, is
seeking leave against the order of the learned Judge in Chamber of the
Lahore High Court, Lahore, refusing him grant of bail in Crime No.98
dated 11.03.2014, registered for offences u/Ss.302, 324, 148, 149
and sections 337-F(iii), 120-B and 109 PPC, by PS Malakwal, District
Mandi Bahauddin.
2.
Mst. Kiran Tanveer w/o Faiz Miran, while reporting the
crime alleged that, deceased Mst. Ambreen, her younger sister, was
married to Shahid Imran. The couple was blessed with three male
children. The husband of the deceased died on 20.10.2012, however,
Crl.P..488/2015
2
in his lifetime he had transferred bungalow No.D-5, Block-408, in
Defence, Lahore, another under-construction house at Gojra and seven
acres of land to Mst. Ambreen, which caused serious annoyance to the
accused party. After the death of her husband, the deceased and her
children were ousted from the house by the accused, who also forcibly
occupied the above properties, besides, misappropriating dowry
articles and gold ornaments of the deceased. To that effect a civil suit
was filed by the deceased which was pending disposal in the Civil
Court, at Malakwal.
3.
After attending the hearing of the case, on 11.03.2014,
the complainant along with the deceased, followed by the two
witnesses on motorbike, left for home, however, they were intercepted
by the accused, namely, (i) Muhammad Ashraf (ii) Kamran Ashraf (iii)
Fakhar Ashraf (iv) Imran Ashraf (v) Zaigham Ashraf (petitioner) (vi)
Mudassar @ Kalu and three unknown persons, who were duly armed
with Kalashnikov rifles. Accused Kamran Ashraf, Fakhar Ashraf and
Zaigham Ashraf made rapid firing with their Kalashnikov rifles at Mst.
Ambreen who got injured and died, while with the fire shots of
Mudassar @ Kalu, Khurram Ashraf and Fakhar Ashraf, Altaf Hussain
(PW) was hit and got injured. The present petitioner also effectively
fired at Altaf, hitting him on his knee-joint, whereafter all the accused
fled away. The injured, Altaf Hussain, also succumbed to the injuries
later.
We have heard the learned ASC for the petitioner, learned
Additional P.G. for the State as well as the learned ASC for the
complainant and have perused the record.
4.
During the course of investigation, the Investigating Officer
discovered that the present petitioner Zaigham Ashraf, was lodged in
Abbottabad Prison of KPK in crimes under Articles 3 and 4 of the
Crl.P..488/2015
3
Prohibition (Enforcement of Hadd) Order, 1979, PS Cantt., Abbottabad
and he was in the Prison on the date and time of the present tragedy
and that, he was released from the Prison on 13.03.2014. The
Investigating Officer, therefore, verified the record of the Prison and
made inquiries from the Prison authorities, as a result he charged the
present petitioner for crimes u/Ss. 109 and 120-B PPC for the
abetment of the crime and hatching conspiracy with the co-accused to
commit the crime.
5.
At the conclusion of the investigation, the charge sheet,
filed in the Trial Court contained S.109 and 120-B PPC and in this way
the Prosecution itself has relied upon the plea of alibi of the petitioner
and he has been implicated for abetment of the crime and offence of
conspiracy, contradicting the stance of the complainant that the
petitioner was present on the spot and participated in the crime.
6.
There is no hard and fast rule that plea of alibi shall not be
considered at bail stage because while granting or refusing to grant
bail to an accused person, the Court is not required to see and
consider the materials/evidence, collected in favour of the Prosecution
but also to give proper attention to the defence plea, taken by an
accused person.
7.
In the case of Khalid Javed Gillan v. The State (PLD
1978 SC 256), broader principles were laid down with regard to
accepting the plea of alibi of accused in that case, making tentative
assessment of the materials brought on record and it was held as
follows:-
“S.497— Bail— Assessment of evidence—Court, in
matters of bail, to go by its assessment of “the common
course of natural events, human conduct, and public and
private business, in their relation to the facts of the
particular case— Prosecution though may prove a
Crl.P..488/2015
4
prosecution witness to be man of unimpeachable
character
for
purpose
of
bail,
however,
hostile
relationship between parties circumstances not irrelevant
to Court’s assessment of material produced before it—
Petitioner’s plea of alibi supported by affidavit of a
disinterested person, a medical practitioner of high
repute, not having any ostensible connection with
petitioner—Bail absence of proof of Doctor’s evidence
being not fit to be relied upon, held, could not be properly
refused—Impugned order being based on misreading of
S.497, petitioner ordered to be released on bail.”
When the bail is ordinarily granted to an accused person, who is
charged for raising ‘Lalkara’ i.e. abetting the crime then, the case of
the accused who is not present on the spot and is charged for
abetment and conspiracy, is certainly placed on better pedestal for
grant of bail in the absence of strong, cogent and tangible
evidence/materials, collected by the Prosecution, during the course of
investigation, connecting his neck with the crime in a reasonable
manner. The record before us, on careful perusal, does not suggest
any such evidence, having been brought on record. Therefore, the plea
of alibi taken by the petitioner, is not only reasonably established at
the moment but has also been acted upon and believed by the
Prosecution and why he was charged for abetment u/Ss. 109 and 120-
B PPC.
8.
Similarly, in the case of Tariq Bashir v. State (PLD 1995
SC 34) it was held that:-
“Grant or refusal of bail in cases punishable with death or
imprisonment for life or for 10 years must be determined
judiciously having regard to the facts and circumstances
of each case…Provisions of S.497 Crl.P.C. are not punitive
in nature as regards offences punishable with death , or
imprisonment for life, imprisonment for ten years, as
there is no concept of punishment before judgment in
law.”
Crl.P..488/2015
5
The words/phrase contained in section 497 Cr.P.C. ‘reasonable
grounds’ to believe is of high import and meaning, requiring the
Prosecution to show to the Court of law that it is in possession of
sufficient materials/evidence, constituting ‘Reasonable grounds’ that
accused has committed an offence falling within the prohibitory limb of
section 497 Cr.P.C.
To the contrary, the accused’s burden is not that much heavier
like the Prosecution. He has only to show that the evidence/materials,
collected by the Prosecution or/and the defence plea taken by him
create reasonable doubts/suspicion in the Prosecution case and he is
entitled to avail the benefit of it. True that Court of law is required to
make only tentative assessment of materials, placed on record by the
Prosecution and no definite opinion shall be formed, conducting a pre-
trial inquiry or deeply appreciating the evidence on record because
such exercise is not permissible at bail stage.
9.
To curtail the liberty of a person is a serious step in law,
therefore, the Judges shall apply judicial mind with deep thought for
reaching at a fair and proper conclusion albeit tentatively however,
this exercise shall not to be carried out in vacuum or in a flimsy and
casual manner as that will defeat the ends of justice because if the
accused charged, is ultimately acquitted at the trial then no reparation
or compensation can be awarded to him for the long incarceration, as
the provisions of Criminal Procedure Code and the scheme of law on
the subject do not provide for such arrangements to repair the loss,
caused to an accused person, detaining him in Jail without just cause
and reasonable ground. Therefore, extraordinary care and caution
shall be exercised by the Judges in the course of granting or refusing
to grant bail to an accused person, charged for offence(s), punishable
with capital punishment. The Courts are equally required to make
Crl.P..488/2015
6
tentative assessment with pure judicial approach of all the materials
available on record, whether it goes in favour of the Prosecution or in
favour of the defence before making a decision.
10.
In the case of Amir v. The State (PLD 1972 SC 277) it
was held that, “for purposes of bail, law not to be stretched in favour of
prosecution—Benefit of doubt, if any arising, must go to accused even on bail
stage”. Similar view was taken in the case of Manzoor v. The State
(PLD 1972 SC 81). These principles so laid down, are based on
enunciation of law in interpreting the provision of section 497 Cr.P.C.
and broader principle of justice. Till date, no departure or deviation
has been made therefrom by this Court then, these are the principles
of law and have binding effect and shall be construed as guiding
principles by all the Courts in the matter of grant or refusal of bail.
11.
In the instant case, as discussed above, the plea of alibi of
the accused has not been disbelieved by the Prosecution rather it was
accepted after due verification from the Prison Authorities and Record,
and it was for this reason that the present petitioner was subsequently
charged for crimes u/Ss. 109 and 120-B PPC. Thus, in this way, his
presence from the crime spot at the time of commission of the present
crime stands excluded.
Keeping in view the two conflicting versions; one given by the
complainant in the FIR and the other by the Investigating Agency
based on documentary evidence with regard to the plea of alibi, the
case of the present petitioner has become certainly one of further
inquiry, falling within the ambit of sub-section (2) of section 497
Cr.P.C., where grant of bail becomes the right of accused and it is not
a grace or concession, to be given by the Court. In the absence of any
exceptional ground or reason, denial of bail in such a case would
amount to exercise a discretion in a manner, not warranted by law and
principle of justice.
Crl.P..488/2015
7
12.
Accordingly, this petition is converted into appeal and is
allowed and the petitioner is granted bail in the light of the terms of
our short order of even date, which is reproduced below:-
“The petitioner seeks bail in case FIR No.98 dated
11.3.2014, offence under Sections 302, 324, 148 and 149
PPC (Sections 337-F(iii), 120-B and 109 PPC were added
later on), registered with P.S. Malakwal, District Mandi
Bahauddin.
2.
For reasons to be recorded, the petitioner is
allowed bail on furnishing personal bail bonds in the sum
of Rs.2,00,000/- with two sureties in the like amount to
the satisfaction of the trial Court. The petition is
converted into appeal and is allowed. The trial Court shall
comply with the directions of the High Court in respect of
early disposal of the case”.
Note: Needless to remark that the above assessment and
observations, recorded by us are tentative in nature and the Trial
Court has to decide the case of the petitioner on the basis of evidence,
to be recorded at the trial.
Chief Justice
Judge
Judge
Islamabad, the
19th August, 2015
Nisar/’’
‘Approved for reporting’
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IN THE SUPREME COURT OF PAKISTAN
(AppellateJurisdiction)
PRESENT:
Mr. Justice Maqbool Baqar
Mr. Justice Qazi Muhammad Amin Ahmed
Crl. P. No.493 of 2021
(Against the judgment dated 16.04.2021 passed by
the Peshawar High Court Bannu Bench in B.C.A.
No.8-b OF 2021)
Noor Aslam
…Petitioner(s)
Versus
The State through P.G. and another
…Respondent(s)
For the Petitioner(s):
Mr. Muhammad Waheed Anjum, ASC
Mehmood Ahmed Sheikh, AOR
For the Respondent(s):
Mian Shafaqat Jan, Addl. A.G. KP
Date of hearing:
02.06.2021.
ORDER
Qazi Muhammad Amin Ahmed, J.- The petitioner,
accused in a case of murderous assault, was granted bail by a learned
Additional Sessions Judge at Lakki Marwat vide order dated 29.1.2021;
the concession was recalled by a learned Judge-in-Chamber of Peshawar
High Court at Bannu Bench vide impugned order dated 16.04.2021, leave
to appeal wherefrom is being prayed for, primarily on the ground that in
the absence of strong reasons there was no occasion for the High Court to
interfere with exercise of discretion to disturb an order, interlocutory in
nature, particularly when the concession was not alleged to have been
abused.
According to the prosecution, on the eventful day i.e. 3.9.2019,
the petitioner targeted Wali Ullah PW with his Kalashnikov in consequence
whereof the latter sustained two bullet wounds on right epigastrium and
left hand; a stray bullet hit a nearby transformer as well, in the backdrop
of a dispute raging between the injured and the assailant; medico legal
examination of even date, under a police docket, confirmed receipt of two
entry wounds with a corresponding exit. After the incident, the petitioner
stayed away from law for a considerable span of time.
Crl. P. No.493 of 2021
2
2.
Heard.
3.
Argument
that
exceptionally
strong
grounds
to
justify
cancellation of bail were not available with the High Court do not hold
water in the peculiar facts and circumstances of the present case;
complainant’s miraculous survival despite massive damage to the
epigastrium region, confirmed by medical examination shortly after the
assault, prima facie, attracted the mischief envisaged by section 324 of the
Pakistan Penal Code, 1860 and, thus, constituted “reasonable grounds”
within the contemplation of section of 497 of the Code of Criminal
Procedure, 1898, standing in impediment to release of an offender in the
absence of any consideration calling for further probe. The learned
Additional Sessions Judge also ran into error by conveniently describing
petitioner’s disappearance from law as inconsequential, errors that have
rightly been rectified by the learned Judge-in-Chamber. No doubt, grant of
bail is a discretionary relief, however, exercise of discretion must be
structured on sound judicial considerations, objectively deducible from the
record of the case, particularly in cases punishable with imprisonment of
ten years or above and, thus, grant of bail in disregard thereof by itself
constitute a strong ground, justifiably calling for interference. Impugned
order being within the remit of law calls for no interference. Petition fails.
Leave declined.
Judge
Judge
Islamabad, the
2nd June, 2021
Not approved for reporting
GhulamRaza/-
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE MAQBOOL BAQAR
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
CRIMINAL PETITION NO. 495 OF 2021
(On appeal against the order dated 16.02.2021 passed by
the Lahore High Court, Lahore in Crl. Misc. No. 50990-
B/2020)
Syeda Sumera Andleeb
… Petitioner
VERSUS
The State and another
… Respondents
For the Petitioner:
Mr. Mazhar Iqbal Sindhu, ASC
Syed Rifaqat Hussain Shah, AOR
For the State:
Ch. Muhammad Sarwar Sindhu, Addl. P.G.
Mr. Asif Raza, S.I.
Date of Hearing:
07.06.2021
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. 266 dated 19.02.2020 under Section 489-F
PPC at Police Station Sattokatla, Lahore. The same relief was denied
to her by the learned Trial Court as also by the High Court vide
impugned order.
2.
As per contents of the crime report, the petitioner and
her husband took loan of rupees twenty million from the
complainant in the presence of witnesses and towards the discharge
of the liability, they gave the complainant a cheque amounting to
Rs.50,00,000/-, which belonged to an account which was being
jointly maintained by the petitioner and her husband. When the
complainant did not get back the amount lent, he deposited the
cheque in his account but the same was dishonored.
3.
Learned counsel for the petitioner inter alia contended
that the petitioner has no concern with the case as she was just
maintaining a joint account with her husband; that her husband,
who is the main accused, is still at large; that she is a lady and has
Criminal Petition No. 495/2021
2
to look after her three children, one of which is a minor girl aged
about 5 years; that the only reason on which the cheque was
dishonored was that the signatures over the cheque do not match
with the specimen signature; that the offence does not fall within the
prohibitory clause of Section 497 Cr.P.C and that in the given
circumstances, the petitioner deserves concession of bail in the
interest of safe administration of justice.
4.
On the other hand, learned Law Officer has opposed the
contentions raised by learned counsel for the petitioner. He while
supporting the impugned order declining bail to the petitioner
contended that the petitioner is involved in a number of cases of
similar nature, which shows that she is an habitual offender; that
the petitioner along with her husband, in furtherance of their
common intention, had intentionally deprived the complainant from a
huge amount and as such she does not deserve any leniency by this
Court.
5.
Arguments heard. Record perused.
It is an admitted fact that the petitioner was
maintaining a joint account with her husband, who is fugitive from
law. The petitioner was taken into custody by the local police and
she is behind the bars for the last 11 months without
commencement of trial. The maximum punishment provided under
the statute is 3 years. It has been surfaced on the record that the
signature over the cheque mismatched with the specimen signature,
which ultimately dishonored. So far as the argument of learned Law
Officer that the petitioner is involved in a number of cases of similar
nature is concerned, mere registration of criminal cases does not
deprive a person from grant of bail, if he/she is otherwise entitled
for the same relief. In Muhammad Rafiq Vs. State (1997 SCMR 412),
this Court has candidly held that if an accused is involved in a
number of cases, it is not sufficient to deprive him of his liberty.
Same was the view of this Court in Moundar Vs. The State (PLD
1990 SC 934). Even otherwise, the petitioner is a woman folk and
has three children to look after including a child of 5 years of age.
The offence does not fall within the prohibitory clause of Section 497
Cr.P.C.
Criminal Petition No. 495/2021
3
6.
For what has been discussed above, the petitioner has
made out a case for bail. Consequently, we convert this petition into
appeal, allow it and set aside the impugned order. The petitioner is
admitted to bail, subject to her furnishing bail bonds in the sum of
Rs.10,00,000/- (rupees one million) with one surety in the like
amount to the satisfaction of learned Trial Court.
JUDGE
JUDGE
Islamabad, the
7th of June, 2021
Approved For Reporting
Khurram
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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. 499 OF 2019
Con appeal against the judgment dated 20022019
passed by the Lahore High Court, Rawalpindi
Bench in Criminal Appeal No. 393/2018)
Tajamal Hussain Shah
Petitioner
VERSUS
The State and another
Respondents
For the Petitioner:
Mr. Talat Mehmood Zaidi, ASC
Mr. Muhammad Sharif Janjua, AOR
For the State:
Mirza Muhammad Usman, DPG
Date of Hearing: 21042022
JUDGMENT
SAYVED MAZAHAR All AKBAR NAQVI. J.- Petitioner was tried by the
learned Additional Sessions Judge, Jand, Attock pursuant to a case
registered vide FIR No. 238 dated 07.11.2009 under Sections 302/34 PPC
at Police Station Jand, Attock, for committing murder of Muhammad
Sajjad, son of the complainant. The learned Trial Court vide its judgment
dated 06.04.2018 convicted the petitioner under Section 302(b) PPC and
sentenced him to imprisonment for life. He was also directed to pay
compensation amounting to Rs. 300,000/- to the legal heirs of the
deceased Muhammad Sajjad or in default whereof to further undergo SI
for six months. Benefit of Section 382-B Cr.P.C. was also extended to him.
In appeal, the learned High Court maintained the conviction and sentences
recorded by the learned Trial Court,
2. The prosecution story as given in the judgment of the
learned Trial Court reads as under:-
CRIMINAL PETITION NO. 499 OF 2019
"2. As per brief facts narrated in complaint Exh.PL, complainant
Muhammad Aslam son of Khan Mulakh (since deceased) was
resident of Chapri, he was cultivator by profession. On 07.11.2009 at
about 0430 p.m. complainant was present at Hussain! Chowk
Chapri, while his son Muhammad Sajjad (since deceased) was
proceeding to the shop of one Jabir for purchasing mobile card.
Aashiq Hussain Shah son of Dildar Hussain Shah, Tajamal Hussain
and Nazakat Hussain sons of Aashiq Hussain residents of Chapri
were sitting on the chairs outside their Baitakh. After purchasing the
card on returning back to home, when Muhammad Sajjad son of
complainant reached near the house of Ashiq Hussain Shah, Nazakat
Hussain son of Ashiq Hussain caught hold of Muhammad Sajjad
while abusing, he started scuffling and called his father and brother
that today Muhammad Sajjad beaten him. On which Tajamal
Hussain son of Ashiq Hussain while abusing took out pistol 30 bore
from his Dhab and made fire shot on Muhammad Sajjad, which
landed on his chest, who became injured and fell down. On seeing
the occurrence, complainant went forward to rescue his son, on
which Ashiq Hussain Shah son of Dildar Hussain took out pistol and
made fire shot on complainant, which landed on the right arm of
complainant, Ashiq Hussain made 2d fire shot, which landed on the
rib of right side; in the meanwhile, Ghulam Raza son of Jewan Khan,
Zulfiqar Ahmad son of Bashir Ahrnad, Muhammad Razzaq son of
Noor Khan alongwith other people while seeing the occurrence
came and rescued them. Motive behind the occurrence is that
quarrel had took place between Nazakat Hussain Shah and Wajid
son of complainant prior, due to which Ashiq Hussain Shah along
with his son, in furtherance of common intention, in order to take
revenge of their disgrace injured them. Complainant alongwith his
son Muhammad Sajjad were being taken to hospital in injured
condition for medical treatment, on the way Muhammad Sajjad
succumbed to the injuries."
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 19 witnesses and one CW. 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 material contradictions and discrepancies in the prosecution
evidence, which have not been properly dealt with by the courts below.
Contends that the injury ascribed to the petitioner by the witnesses of the
CRIMINAL PETITION NO. 499 OF 2019
3
ocular account was on chest of the deceased but the same is contradicted
by the medical evidence. Contends that the plea of alibi of the petitioner
was verified by the Investigating Officer but the same has not been given
any credence. Contends that the prosecution has to prove its case without
any shadow of doubt but it has miserably failed to prove its case.
Contends that the reasons given by the learned courts below to sustain
conviction of the petitioner are speculative and artificial in nature and
resulted into miscarriage of justice, therefore, the impugned judgment
may be set aside.
5. 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. He
contends that any minor discrepancy in the prosecution evidence does not
entitle the petitioner for acquittal Lastly contends that the petitioner
remained absconder for ten years, which clearly indicates that he was fully
involved in the commission of the crime, 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.
The ocular account in this case is furnished by Zulfiqar
Ahmed (PW-18) and Muhammad Daraz (PW-19). According to these PWs
of the ocular account, the petitioner while armed with .30 bore pistol
made a straight fire shot on Muhammad Sajjad, deceased, which landed
on his chest, due to which he fell down and ultimately succumbed to the
injury. However, this stance is contradicted by the medical evidence.
According to Dr. Raheem Khan (PW-15), who conducted postmortem
examination of the deceased Muhammad Sajjad, the injury on the chest,
just above the nipple of the deceased, was an exit wound and the margins
of the wound were black whereas the entry wound was on the back of the
deceased i.e. at thoracic spine. The blackening around the wound shows
that the fire shot would have been made from a close range but according
CRIMINAL PETITION NO. 49$ OF 2019
4
to the site plan, the petitioner was shown standing at a distance of 18
steps away from the deceased. This major discrepancy raises serious
doubts on the credibility of the prosecution witnesses of the ocular
account. It was petitioner's stance that on the fateful day and time, he was
not present at the place of occurrence and was visiting his cousin, who
was posted at 62 signal Battalion Misrial Road, Rawalpindi and in-fact the
deceased alongwith 25/30 persons attacked upon his house while armed
with lethal weapons and beat his father. This plea of alibi of the petitioner
was inquired into by the Investigating Officer i.e. Mehmood Khan, SI (PW-
17), who after thorough investigation found the same to be true. The 10.
also got a verification letter dated 2.02.2017 issued by the Commanding
Officer of 62 Battalion, which was placed on record. In support of this
assertion, Havaldar Tamraiz Khan, 62 Signal Battalion appeared as DW-7
and stated on oath that on the fateful day and time, the petitioner was
physically present at 62 signal Battalion. This plea of alibi finds support
from record produced by DW-7. The pistol .30 bore allegedly recovered on
the pointation of the petitioner was transmitted to the Punjab Forensic
Science Agency but the matching report of the same with crime empties
recovered from the spot was negative, therefore, the recovery of pistol
becomes inconsequential. According to the prosecution the motive of the
occurrence was previous quarrel between co-accused Nazakat Hussain
Shah (tried separately) and Wajid, son of the complainant. However, the
prosecution failed to produce the said Wajid in order to prove the motive
part, therefore, it can safely be concluded that prosecution could not
prove the motive part of the story. 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,
which cannot be made basis for conviction, rather it is the prosecution
who has to prove its case independently without any reasonable shadow
of doubt. In Rasool Muhammad Vs. Asal Muhammad (PU 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. In these
CRIMINAL PETITION NO. 49P OF 2019
5
circumstances, a doubt in the prosecution case has arisen, benefit of
which must be given to the petitioner. It is a 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 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 is set
aside. The petitioner is acquitted of the charge. He shall be released from
jail forthwith unless detained/required in any other case. The above are
the detailed reasons of our short order of even date.
Islamabad. the
21" of April, 2022
Approved For Reporting
I (,. Itid till'
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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. 50-Q of 2017
(Against
the
judgment
dated
19.06.2017 passed by the Balochistan
High Court, Quetta in Crl. Appeal
No.337/2016)
Muhammad Ashraf
…Petitioner(s)
Versus
The State
…Respondent(s)
For the Petitioner(s): Mr. Zahoor Ahmed Chishti, ASC
For the State:
Mr. Wallayat Hussain,
Addl. Prosecutor General Balochistan
Date of hearing:
13.10.2020.
ORDER
Qazi Muhammad Amin Ahmed, J.- Mehboob Ali, 35,
was shot dead during the wee hours of 21.6.2015, while asleep as a
guest in the house of his brother Abdul Karim (PW-5), located within
the precincts of Police Station Levies Dashat, Mastung. Incident was
reported
by
his
sister
Zarnaz
(PW-1),
a
resident
in
the
neighbourhood; she accused the petitioner alongside Dur Khan,
Qadir Bukhsh, Badal Khan, Haji Khan and Muhammad Yousaf,
away from the law till date, for the murder in the backdrop of a
previous dispute. Spot inspection includes seizure of blood as well as
18 casings of Kalashnikov. Autopsy report confirmed multiple
entrance wounds on the forehead with corresponding exits,
cumulatively leading to the death. The petitioner was alone to
contest indictment before the learned Sessions Judge Mastung; vide
Criminal Petition No.50-Q of 2017
2
judgment dated 08.10.2016 he was convicted under sections 302,
449 of the Pakistan Penal Code, 1860 and sentenced to
imprisonment for life and seven years RI, respectively, with a
direction to pay compensation as well as fine, upheld by the High
Court of Balochistan vide impugned judgment dated 19.06.2017,
albeit with a direction for concurrent commutation of sentences, pre-
trial period inclusive.
2.
Learned counsel for the petitioner contends that the
deceased was done to death under mysterious circumstances in an
unseen occurrence, noticed subsequently and reported through the
witnesses, stage-managed after consultations; that despite his
having endured the period of physical remand, no recovery was
effected from the petitioner, a circumstance in itself, vindicating his
position. Occurrence being a night affair, reported after inordinate
delay, the question of assailants’ identity is looming large on the
scene, concluded the learned counsel. The learned Law Officer has
faithfully defended the impugned judgment.
3.
Heard. Record perused.
4.
The prosecution has primarily relied upon ocular account
furnished by Mst. Naz Malik (PW-3), Abdul Fatah (PW-4) and Abdul
Karim (PW-5); the last is real brother of the deceased whom he
visited during the fateful night in the month of Ramzan; Mst. Naz
Malik is a niece, wife of Abdul Fatah (PW-4), residents of the locality;
all of them unanimously pointed their fingers upon the petitioner,
accompanied by the absconding co-accused who took on the
deceased shortly after close of Sehar. In this backdrop, the
hypothesis of a mistaken identity in the month of June with early
dawn is beside the mark. Given the location of police station at a
distance of 30/32 kilometers from the place of occurrence in the
province of Balochistan with primitive means of communication,
report straight at the police station cannot be viewed with suspicion.
With assistance of learned counsel, we have gone through the
statements of witnesses to find them in a confidence inspiring
unison; inconsequential cross-examination mostly comprising of
bald suggestions, each vehemently denied, fails to reflect upon the
credibility of witnesses; on the contrary, confirms an ongoing dispute
between the deceased and Dur Khan, one of the accused still
Criminal Petition No.50-Q of 2017
3
absconding. The witnesses being inmate of the premises, themselves
have no axe to grind against the accused nor are expected to swap
the actual offender with the innocent, as there is nothing on the
record to even obliquely entertain any theory of substitution; they
have rightly been held as worthy of credence; reliance upon their
testimonies by the Courts below being in accord with the principles
of safe administration of criminal justice calls for no interference.
Petition fails. Leave declined.
Judge
Judge
Judge
Islamabad, the
13th October, 2020
Not approved for reporting
Azmat/-
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mazhar Alam Khan Miankhel
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.500 of 2020
(Against order dated 15.4.2020 passed by
the Peshawar High Court Bannu Bench in
Crl. Misc. No.BA No.142-B/2020)
Kamran Ullah
…Petitioner(s)
Versus
The State & another
…Respondent(s)
For the Petitioner(s):
Mr. Talat Mehmood Zaidi, ASC
Mr. Muhammad Sharif Janjua, AOR
For the State:
Mr. Anis M. Shahzad, ASC
with Umar Nawaz, ASI
For the Complainant:
Mr. Dil M. Khan Alizai, ASC
Date of hearing:
06.07.2020.
ORDER
Qazi Muhammad Amin Ahmed, J.- Aftab Alam, 35/36,
left home at about 7:00 p.m.; his wife, as stated by him, expected her to
return shortly thereafter, however, upon failure to return, became
suspicious and informed her brother-in-law at 2:00 a.m.; his mobile
handset did not respond multiple attempts. Search started in the
morning to find the dead body lying in a pool of blood in a field; he was
done to death by unknown assailant(s) with fire shots; stricken by
shock, the family was clueless about the motive behind the crime.
As investigation progressed, the petitioner was taken on board as a
suspect on the basis of complainant’s supplementary statement dated
26.2.2020 wherein Sajid Ali Shah was also arrayed as an accomplice
for the murder in the backdrop of a monetary dispute; the latter
pursuant to a disclosure, led to the recovery of a .30 caliber pistol,
a weapon that did not forensically tally with the casings secured during
Criminal Petition No.500 of 2020
2
spot inspection. Semi burnt cell phone handsets used by the deceased,
concealed underneath the soil, were recovered at petitioner’s instance
vide inventory dated 25.2.2020.
2.
Heard. Record perused.
3.
Be that as it may, complainant’s strong belief about
petitioner’s culpability notwithstanding, evidentiary value of various
pieces of prosecution evidence hitherto collected has to survive judicial
scrutiny to cross the barriers of rules of evidence; the exercise has
admittedly not yet commenced. Prosecution for the present is not
possessed with any digital proof to establish subscriptive nexus
between the deceased and the handsets. Call Detail Record (C.D.R.)
purportedly suggestive of conversation between the deceased and the
accused shortly before his death, nonetheless, sans contents/details
thereof. Without prejudice to the merits of the prosecution case, to be
essentially settled by the trial Court, nonetheless, petitioner’s case
squarely falls within the remit of subsection 2 of section 497 of the
Code of Criminal Procedure 1898; a case for his release on bail stands
made out. Criminal Petition No.500 of 2020 is converted into appeal
and allowed; petitioner/appellant 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/duty Judge.
Judge
Judge
Islamabad, the
6th July, 2020
Not approved for reporting
Azmat/-
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE IJAZ UL AHSAN
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
CRIMINAL PETITION NO. 507-L OF 2021
(On appeal against the order dated 02.04.2021 passed by
the Lahore High Court, Lahore in Criminal Miscellaneous
Application No. 15372-B/2021)
Kazim Ali and others
… Petitioners
VERSUS
The State etc
… Respondents
For the Petitioners:
Rana Muhammad Shahid Mahmood, ASC
a/w petitioners
For the State:
Mr. Muhammad Jaffer, Addl. P.g.
Mr. Tahir Bashir, SI
Date of Hearing:
11.10.2021
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 petitioners have assailed the order dated
02.04.2021 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. 285 dated 25.07.2020 under Sections 337-
F(v) / 337-F(i) /337-F(ii) /337-A(i) / 337-H(2) / 354 / 452 / 427 /
148 / 149 PPC at Police Station Sher Garh, District Okara 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 and
‘sotas’ firstly attacked on the complainant party and injured cousin
of the complainant and thereafter trespassed into the houses of
relatives of the complainant, gave beating to the women folk and
children and also set on fire two motorcycles.
3.
At the very outset, it has been argued by learned
counsel for the petitioners that the petitioners are falsely roped in
this case against the actual facts and circumstances of this case.
Criminal Petition No. 507-L/2021
2
Contends that the story advanced by the complainant does not
inspire confidence as a large number of persons while committing
the offence in the manner as disclosed by the prosecution witnesses,
their role cannot be specified with exactitude as is narrated in the
crime report. Contends that 4 out of 17 accused were arrested by
the Police and they have been granted post-arrest bail by the court
of first instance. Contends that the role of the petitioners is similar to
the co-accused already granted bail, hence, they are also entitled for
the concession of bail on the principle of consistency. Contends that
the learned High Court while adjudicating the matter has wrongly
observed that Sections 354/427/452/148/149 PPC are attracted in
this case and did not take into consideration the role ascribed to
each of the petitioners. Contends that most of the offences are
bailable in nature and cannot be made basis for declining bail to the
petitioners without recording the evidence during the course of trial.
Lastly contends that the petitioners are entitled for the concession of
bail on this score alone.
4.
On the other hand, learned Law Officer argued that
there is no denial to this fact that co-accused of the petitioners four
in number have been granted post-arrest bail and as such the case
of the petitioners is similar to those already extended concession of
bail.
5.
We have heard learned counsel for the parties at some
length and have gone through the record.
There is no denial to the fact that there is a delay of four
days in lodging the FIR for which no plausible explanation has been
given. As per the contents of the crime report, 17 persons are
nominated in the crime report, who allegedly while variously armed
caused injuries to the injured PWs on various parts of the body.
There is a counter version of the occurrence which was recorded by
the local police regarding the same occurrence vide FIR No.
310/2020 under Sections 379 / 354 / 427 / 337-A(i) / 337-L(ii) /
148 / 149 PPC at Police Station Sher Garh, District Okara. While
evaluating the facts and circumstances narrated from both ends, it
has become imperative for this Court to adjudicate the matter
keeping in view the role ascribed to accused nominated in counter
case and while keeping the same in juxtaposition it has to arrive at
Criminal Petition No. 507-L/2021
3
a conclusion which meets the requirements of the dictates of justice.
During course of arguments, it has been pointed out that four co-
accused of the petitioners were taken into custody by the local police
and they have been granted post-arrest bail by the court of
competent jurisdiction, which has not been challenged by the
complainant at any forum. We are conversant with the fact that as
per the contents of the crime report, the case of either of the
petitioners cannot be distinguished from the four co-accused who
have been granted the concession of post-arrest bail. In such like
situation, when it is admitted fact that the role ascribed to a large
number of accused is of general nature and that cannot be
distinguished from each other, if 4 out of 17 accused have already
been granted bail by the court of competent jurisdiction which
remains unchallenged by the complainant, any order by this Court
on any technical ground that the consideration for pre-arrest bail
and post-arrest bail are entirely on different footing, would be only
limited upto the arrest of the petitioners because of the reason that
soon after their arrest they would be entitled for the concession of
post-arrest bail on the plea of consistency. In a similar situation in
the case reported as Muhammad Ramzan Vs. Zafarullah (1986
SCMR 1380), the respondent, who was involved in a murder case,
was allowed pre-arrest bail by the learned High Court while the
other similarly placed co-accused were granted bail after arrest. The
complainant did not challenge the grant of bail after arrest to the
similarly placed co-accused and sought cancellation of pre-arrest
bail granted to the respondent before this Court by filing a criminal
petition but this Court dismissed the petition for cancellation of bail
by holding that “no useful purpose would be served if the bail of
Zafar Ullah Khan respondent is cancelled on any technical ground
because after arrest he would again be allowed bail on the ground
that similarly placed other accused are already on bail.” In these
circumstances, it is the Trial Court who after recording of evidence
would decide about the guilt or otherwise of the petitioner. Prima
facie there are sufficient grounds to take into consideration that the
case of the petitioners is fully covered by Section 497(2) Cr.P.C.
calling for further inquiry to their guilt.
Criminal Petition No. 507-L/2021
4
7.
For what has been discussed above, we convert this
petition into appeal, allow it and set aside the impugned order dated
02.04.2021 passed by the learned Single Judge of the High Court.
The petitioners are admitted to pre-arrest bail subject to their
furnishing bail bonds in the sum of Rs.100,000/- each with two
sureties each in the like amount to the satisfaction of learned Trial
Court.
JUDGE
JUDGE
Lahore, the
11th of October, 2021
Approved For Reporting
Khurram
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE MUNIB AKHTAR
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
CRIMINAL PETITION NO. 509 OF 2021
(On appeal against the order dated 26.04.2021 passed by
the Peshawar High Court, Bannu Bench in Cr. Misc. (BA)
No. 190-B/2021)
Akhtar Ullah @ Akhtar Ali
… Petitioner
VERSUS
The State and another
… Respondents
For the Petitioner:
Mr. Farman Ali Khattak, ASC
For the State:
Mr. Shumayl Aziz, Addl. A.G. KPK
Date of Hearing:
16.06.2021
ORDER
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through the instant
criminal petition filed under Article 185(3) of the Constitution of
Islamic Republic of Pakistan, 1973, the petitioner seeks leave to
appeal against the impugned order of learned Peshawar High Court,
Bannu Bench dated 26.04.2021, with a prayer to grant post-arrest
bail in case FIR No. 05 dated 12.01.2021 under Sections
324/427/34 PPC at Police Station Shah Saleem, District Karak in
the interest of safe administration of criminal justice.
2.
As per contents of the crime report, it is alleged that the
petitioner while armed with a Kalashnikov, on the asking of co-
accused Rehman Ullah, made a fire shot, which landed on the right
heel of injured PW Muhammad Wajid (complainant of the case), as a
consequence whereof, the instant FIR was got registered by him.
Petitioner filed a petition for post-arrest bail before the learned
Additional Sessions Judge, Karak, which was dismissed vide order
dated 13.04.2021. The order of learned Additional Sessions Judge
was challenged by the petitioner before the learned Peshawar High
Court, Bannu Bench by filing a criminal miscellaneous application
which too met the same fate vide the order impugned. Hence, the
instant petition for leave to appeal.
3.
Learned counsel for the petitioner has argued that
petitioner has been falsely roped in this case against the actual facts
Criminal Petition No. 509/2021
2
and circumstances of this case; that the motive ascribed to the
petitioner is not substantiated from the record; that though petitioner
has been ascribed direct role of causing a firearm injury on the
person of injured PW (complainant) but according to medico legal
report, the dimension of the injury as well as the name of the expert
who examined the injured PW has not been mentioned, which is
spelled out from Page 18 of the instant petition; that as per
prosecution, the injured PW was admitted to the hospital and
examined on 12.01.2021, whereas he was discharged from the
hospital on 25.01.2021 but the details of the same are not
mentioned anywhere. It has further been argued that the locale of
injury is on the non-vital part which clearly reflects that the
petitioner had no intent to commit the murder of injured PW
(complainant) and the provisions of section 324 PPC are not
attracted in this case. Lastly, it has been argued that petitioner is
behind the bars since 23.02.2021, investigation of the case is
complete and he is no more required for the purpose of investigation
and on this score alone, he is entitled for the concession of bail.
4.
On the other hand, learned Additional Advocate
General, KPK has supported the impugned order declining bail to the
petitioner. Learned Law Officer contended that the petitioner is
specifically named in the crime report with allegation of causing a
firearm injury on the person of complainant with a lethal weapon;
that an empty of 7.62 bore was recovered from the spot which
clearly shows that the injured PW was fired at by the petitioner with
a Kalashnikov. He, however, frankly conceded that during the
course of investigation, no recovery of alleged weapon has been
affected from the petitioner.
5.
We have heard learned counsel for the petitioner as also
learned Law Officer and have perused the record with their able
assistance.
There is no denial to this fact that the occurrence has
taken place in the broad daylight, which was promptly reported. As
far as the allegation against the petitioner is concerned, there are
certain aspects of the case which require determination to arrive at a
conclusion whether the petitioner is entitled for the relief sought for.
It has been observed by us that the injury ascribed to the petitioner
on the person of complainant is surely on his right heel. During the
course of medical examination of complainant, the Doctor has not
given any details regarding dimension of the injury. Though one
Criminal Petition No. 509/2021
3
empty of 7.62 bore was secured from the spot by the investigating
agency, but no recovery of alleged weapon was affected from the
petitioner. Therefore, the recovery of crime empty from the spot
becomes inconsequential and does not have any legal force. Perusal
of medico legal report reveals that the same is on a plain paper and
name and designation of the Doctor who examined the injured PW
have not been mentioned. As per prosecution, the injured PW
Muhammad Wajid (complainant) remained admitted in the hospital
after the occurrence for a couple of days but discharge slip is not
available on the record. In Muhammad Umar Vs. The State and
another (PLD 2004 SC 477), while granting bail to accused, this
Court observed that a perusal of medical certificate of injured
revealed that allegedly the accused (petitioner) fired upon the outer
side of the right leg’s middle part of the injured Shahid Iqbal,
therefore, prima facie, he had no intention to fire upon the vital part
of the injured for the purpose of launching murderous assault. Even
otherwise, the question qua applicability of section 324 PPC would
be determined by the learned trial Court after recording of evidence.
All these aspects of the case if evaluated conjointly, the case of
petitioner squarely becomes one of further enquiry falling within the
ambit of section 497(2) of Cr.P.C. Even otherwise, the petitioner is
behind the bars since 23.02.2021, the investigation of the case is
complete and 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 bond in the
sum of Rs.200,000/- (rupees two hundred thousand) with one
surety in the like amount to the satisfaction of learned Trial Court.
JUDGE
JUDGE
Islamabad, the
16th of June, 2021
Approved For Reporting
Khurram
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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 Nos.513 & 102-P of 2021
(Against the judgment dated 19.3.2021 passed by the Peshawar
High Court Bannu Bench Bannu in Crl. A. No.7-B/2021)
Muhammad Anwar
(in C.P.513/2021)
Dildar Hussain
(in C.P.102-P/2021)
…..Petitioner(s)
Versus
The State through A.G. Khyber Pakhtunkhwa and
another
(in C.P.513/2021)
Muhammad Anwar and another
(in C.P.102-P/2021)
…Respondent(s)
For the Petitioner(s):
Mr. Asghar Ali Khan, ASC
(in Cr.P.513/2021)
Mr. Tariq Khan Kakar, ASC
(in Cr.P.102-P/2021)
For the State:
Mr. Zahid Yousaf Qurshi,
Addl. Prosecution General, KP
Date of Hearing
28.01.2022.
ORDER
Qazi Muhammad Amin Ahmed, J.- Indicted for
murderous assault, Muhammad Anwar, petitioner, was returned
a guilty verdict by a learned Addl. Sessions Judge at Banda Daud
Shah, District Kark; convicted under section 324 of the Pakistan
Penal Code, 1860, he was sentenced to 8-years RI with a
direction to pay fine; on coordinate charges, arisen out of injuries
endured by Diladar Hussain (PW-6), he was directed to pay
monetary compensation in terms of Daman. The High Court
maintained the conviction, however, reduced the sentence of
imprisonment of 8-years to 4-years vide impugned judgment
dated 19.03.2021, leave to appeal wherefrom is being prayed for.
2.
On the eventful day, i.e. 01.04.2019, Dildar Hussain
was present in the village mosque when at 2:00 p.m. within the
Criminal Petition Nos.513 & 102-P of 2021
view of witnesses, the petitioner armed with a .30 caliber pistol
targeted him with multiple fire shots. Motive for the crime was a
dispute over installation of water connection. The injured was
shifted to the hospital where the Medical Officer noted three entry
wounds with corresponding exits involving right hypochondrium,
umbilicus and dorsal side of right feet. The casings secured from
the spot were opined to have been fired from one weapon, never
recovered during the investigation.
3.
Learned counsel for the petitioner contends that the
courts ran in concurrence of error inasmuch as the prosecution
had miserably failed to prove its case on the strength of proof
beyond doubt; that independent witnesses, admittedly present in
the mosque, did not come forward to support the complainant,
himself no other than real brother of the injured; that forensic
report regarding casings in the absence of any wedded weapon
hardly lent any support to the prosecution. Nature of injuries
fails
to
constitute
“intention
or
knowledge”
within
the
contemplation of section 324 of the Act, a sine qua non, to attract
mischief thereof and, thus, the petitioner could only be saddled
with the monetary compensation for the injuries endured by the
witness, being outcome of assault simpliciter, concluded the
learned counsel. The learned Law Officer faithfully defended the
impugned judgment.
4.
Heard. Record perused.
5.
The occurrence is a daylight affair inside village
mosque at a point of time where the presence of witnesses cannot
be viewed as improbable. The incident is reported to the police
with a remarkable promptitude, followed by medical examination
that conclusively confirms receipt of three fire shots with a
weapon awfully lethal by all means. Survival of the victim is
nothing less than a miracle; he came forward to unambiguously
point his accusing finger upon the petitioner, a solitary assailant
at the scene. It would be naive to argue that three consecutive
fires hitting different parts of the body do not constitute “intention
or knowledge” and circumstances contemplated by section 324 of
the Act ibid to bring petitioner’s case within the remit of the said
statutory provision. Aftermaths of a deadly assault particularly by
Criminal Petition Nos.513 & 102-P of 2021
firearm cannot be quantified on the touchstone of degree of
concomitant violence experienced by a victim; it is not his
perseverance or endurance that determines assailant’s culpability
nor intervention by Providence presents him any extenuating
option; it is solely his own conduct that decisively determines the
intention regardless of the consequences thereof. Likewise,
primary punishment for murderous assault is imprisonment that
may extend to 10-years; punishment provided for the injuries is,
in addition thereto, so as to monetarily compensate the victim,
having no indemnifying effects on the former. Criminal Petition
No.513 of 2021 fails. Leave declined.
Much water has flown under the bridge and, thus, we do
not feel inclined to enhance sentence at this point of time.
Criminal Petition No.102-P of 2021 also fails; leave declined.
Judge
Judge
Judge
Islamabad, the
28th January, 2022
Azmat/-
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Umar Ata Bandial, CJ
Mr. Justice Muhammad Ali Mazhar
Mr. Justice Athar Minallah
CRIMINAL M. A. NO. 641 OF 2023 IN
CRIMINAL PETITION NO. NIL OF 2023
(Application for exemption of Filing of Petition through Special
Attorney in the matter of arrest of the petitioner from the premises
of IHC).
Imran Ahmed Khan Niazi
…Petitioner(s)
Versus
The State and others
…Respondent(s)
For the petitioner(s)
: Mr. Imran Ahmed Khan Niazi
(in-person)
(on Court’s call)
Mr. Hamid Khan, Sr. ASC
Raja Aamir Abbas, ASC
Mr. Shoaib Shaheen, ASC
Mr. Gohar Ali Khan, ASC
Mr. Salman Safdar, ASC
Mr. Niaz ullah Niazi, ASC
Mr. Ashfaq Ahmed Kharal, ASC
Mr. Muqtedir Akhtar Shabbir, ASC
Mr. Waqar Rana, ASC
For Federation
: Mr. Mansoor Usman Awan, AGP
a/w:Barr. Maryam Ali Abbasi, Adv.
Mr. Javaid Iqbal Wains, Addl AG
Mr. Rashdeen Nawaz Kasuri,
Addl. AG
For NAB
: Mr. Asghar Hussain, PG NAB
Mr. Muzaffar, DPG
Mr. M. Rafay Maqsood,
Sr. Spl. Prosecutor
For ICT
: Mr. Jehangir Khan Jadoon, AG
Dr. Akbar Nasir Khan, IGP
Date of hearing
: 11.05.2023 at 05:45 pm
Crl.M.A. NO. 641 OF 2023
2
O R D E R
For the reasons to be recorded later, this Misc. Application is
allowed, Criminal Petition be numbered accordingly and the same is
converted into appeal and disposed of in the following terms:
i)
The manner of execution of the arrest warrant issued by the
Chairman, National Accountability Bureau (NAB) dated
01.05.2023 in the Al-Qadir Trust case within the premises of
the Islamabad High Court against petitioner is invalid and
unlawful. The execution of said warrant violated the
petitioner’s right of access to justice and the sanctity and
safety of the Court as he had already surrendered to the
Court for seeking judicial relief against the action taken by
NAB in the Al-Qadir Trust case. In this regard, the
fundamental rights of the petitioner under Articles 4, 9, 10-A
and 14 of the Constitution of Islamic Republic of Pakistan
have been infringed.
ii)
The petitioner is directed to be produced before the
Islamabad High Court tomorrow i.e. 12.05.2023 at 11:00 am
for hearing of his Writ Petition filed to challenge the NAB
action against him in the Al-Qadir Trust Case. The NAB
authorities and the ICT Police shall ensure foolproof
security to the petitioner until his production in the
Islamabad High Court in this regard.
iii)
The Registrar of the Islamabad High Court is directed to
place the matter i.e. the Writ Petition before the Hon’ble
Chief Justice of the Islamabad High Court for constituting a
Bench for hearing the same.
iv)
In order to ensure the security of the petitioner until his
appearance in the High Court tomorrow i.e. 12.05.2023 at
11:00 am, he shall remain in the premises where he is
presently retained in police custody, namely, the Police
Lines Guest House, H-11, Islamabad (Police Guest House).
Crl.M.A. NO. 641 OF 2023
3
v)
Whilst the petitioner is in the Police Guest House, he shall
be entitled to meet up to 10 guests, whose particulars shall
be provided by him to the concerned Police Officer, subject
to security check by the police. These persons shall be
allowed to stay with the petitioner as long as desired by
him.
vi)
This order shall remain valid until the production of the
petitioner before the High Court in the aforementioned Writ
Petition tomorrow i.e. 12.05.2023 at 11:00 am and shall be
subject to any order that is passed by the High Court.
vii)
This order shall not cause any prejudice to the proceedings
of investigation being conducted by the NAB in the matter
of the Al-Qadir Trust.
Sd/-
Chief Justice
Sd/-
Judge
Sd/-
Judge
Islamabad,
11.05.2023.
NOT APPROVED FOR REPORTING.
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mushir Alam
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.520 of 2020
(Against the order dated 30.4.2020 passed by the
Lahore High Court Lahore in Cr. M. No.8114-
B/2020)
Hazrat Nabi Shah alias Hazrat Khan
…Petitioner(s)
Versus
The State & another
….Respondent(s)
For the Petitioner(s):
Mr. Muazzam Butt, ASC
Syed Rifaqat Hussain Shah, AOR
For the State:
Rana M. Arif Kamal Noon
Prosecutor General, Punjab (on court notice)
Rana Abdul Majeed, Addl. P.G. Punjab
Mr. Sarwar Sindhu, Addl. P.G. Punjab
Rai Tahir, Addl. I.G. CTD Punjab
Sohail Khan, Inspector/IO, CTD, Sargodha
Syed Asad Muzaffar, SP Model Town Lahore
Altaf Hussain, DSP
Nisar Ahmed, SI/Incharge Investigation
Munir Ahmed, SI
For co-accused (Ismail Khan): Mr. Aftab Alam Yasir, ASC
along with Ismail Khan, in person.
Date of hearing:
25.08.2020.
ORDER
Qazi Muhammad Amin Ahmed, J.- On 4.12.2019, pursuant
to a tip off, Hazrat Nabi Shah and Ismail Khan, residents of Khyber
Pakhtunkhaw were intercepted by a contingent of CTD Sargodha along
with a cache that included explosives, an hand grenade, a .30 caliber
pistol as well as live munitions. A learned Division Bench of Lahore High
Court Lahore granted bail to Ismail Khan on 23.4.2020, however, declined
the motion by Hazrat Nabi Shah vide order dated 30.04.2020. It is in this
backdrop that Hazrat Nabi Shah alias Hazrat Khan petitioner approached
this Court for bail when vide order dated 30.07.2020 Ismail Khan
co-accused was sent for to show cause as to why bail granted to him be
not cancelled.
2
The High Court granted bail to Ismail Khan co-accused on the
ground that hand grenade, statedly recovered at his instance, was not sent
to any notified expert for confirmation of its explosive potential and that
the official who defused the bomb was not a declared “notified expert”. It is
on this finding that the learned counsel for Hazrat Nabi Shah alias Hazrat
Khan sought bail on the ground of requirement of principle of consistency
besides arguing that petitioner’s family had lodged complaint of his having
been a missing person much earlier than his arrest in the present case
and it is for this reason that a fake recovery is foisted upon him to validate
his illegal detention.
Pursuant to notice, Ismail Khan co-accused, is in attendance;
adopting the reasons of the High Court, it is argued by his learned counsel
that he had been rightly released on bail as his culpability in the absence
of a forensic report squarely brought his case within the purview of further
probe; he has next argued that once bail is granted, exceptionally strong
grounds are required to recall the freedom, a practice consistently followed
by this Court. Learned Prosecutor General Punjab has faithfully defended
the State. It is argued that the accused, apparently having no inter se
relationship, hailing from the remoteness of a different province, were
arrested red-handed with a substantial volume of explosives and arms
with huge capacity to play havoc in a populous city and as such there was
no occasion for grant of bail to one of them on a ground that was not only
legally untenable but also could not be attended without travelling beyond
the barriers of tentative assessment, a journey prohibited by law.
2.
Heard. Record perused.
3.
The accused, both teenagers, respectively belong to different
parts of Khyber Pakhtunkhaw, i.e. Peshawar and Mehmand Agency; they
had apparently no business to be in a distant city and as such hypothesis
of their manipulated arrest, as argued at the bar, may not find a buyer.
Similarly, seizure of considerable quantity of explosives that included an
hand grenade, a pistol and cash cannot be brushed aside on a bald denial
alone as the local authorities do not appear to have an axe to grind. On the
contrary, their surprise arrest and recovery of contraband constituted
‘reasonable grounds” to bring their plea within the remit of Prohibition,
standing in impediment to their release on bail.
On the date of their arrest i.e. 04.12.2019, the Investigating Officer
along with Muhammad Suleman, Bomb Disposal Squad Expert attached
3
with Civil Defence Sargodha, defused the hand grenade and prepared a
memo with following remarks:-
“(a) It is certified that A/M Explosives material found
alive, serviceable, operational and can be used for
any types of terrorists activities.
(b)
It is further clarified that explosive cannot be
extracted from hand grenade and detonators for
preparation of samples parcels as they contains
High/Primary high explosive which is very sensitive to
heat and spark.”
The above observations of the expert escaped the notice of the High Court
that also appears to have ignored forensic reports confirming awful
lethality of other items seized in the totality of circumstances and, thus,
erroneously misdirected itself to grant bail to Ismail Khan, co-accused,
inexorably placed in an identical position with his co-accused, rightly
denied the concession. Argument that once bail is granted, recall requires
most extraordinary measures is beside the mark as in an appropriate case,
like one in hand, the Court would unhesitatingly strike down the error,
manifestly
reflecting
upon
the
law.
Seizure
of
high
intensity
explosives/devices given their devastating potential/threat to unsuspecting
public at large must be viewed with appropriate caution, therefore, having
regard to the legislative intent, exercise of discretion in bail matters needs
to be contoured carefully. Criminal Petition No.520 of 2020 fails. Leave
declined. Order dated 23.04.2020 is set aside; bail granted to Ismail Khan
co-accused is cancelled. The above observations, however, shall not
shadow the trial, to be essentially settled on the strength of evidence alone,
with all convenient dispatch, preferably within a period of six months.
Judge
Judge
Islamabad, the
25th August, 2020
Not approved for reporting
Azmat/-
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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 Nos.527 to 529 of 2017 and
Crl. M.A. No.520/2018
(Against the judgment dated 06.04.2017 of the Lahore High Court,
passed in Cr.As.460-E, 468a-E and 482-E of 2014)
NAB through its Chairman, Islamabad
…Petitioner
(In all cases)
Versus
Brigadier (Retd.) Hamid Mehmood
(Crl. Petition No.527 of 2017)
Muhammad Shafique Ahmed
(Crl. Petition No.528 of 2017)
Khawaja Jamil Ahmed
(Crl. Petition No.529 of 2017)
…Respondent(s)
For the Petitioner(s):
Mr. Naeem Tariq Sanghera,
(In all cases)
Special Prosecutor, NAB
For the State:
N.R.
(In all cases)
Date of Hearing
22.02.2022.
ORDER
Qazi Muhammad Amin Ahmed, J.:- Brig. ® Hamid
Mehmood, Muhammad Shafiq Ahmed and Khawaja Jamil Ahmed,
respectively arrayed as respondents in Crl. P. No.527, 528 & 529 of
2017, respectively, were returned a guilty verdict by Accountability
Court No.1 Rawalpindi in NAB Reference No.19 of 2006 vide judgment
dated 11.11.2014; convicted under section 9-a (iii), (iv), (vi) & (xii) of
the National Accountability Bureau Ordinance, 1999 and sentenced to
12-years rigorous imprisonment each with fine to the tune of US $ 2.4
million, to be apportioned equally, recoverable as arrears of land
revenue, under section 10 thereof with forfeiture of US $ 1,15,883
deposited by Brig. ® Hamid Mehmood respondent at the time of his
release on bail; they were also disqualified in terms of section 15 of the
Ordinance ibid. A Division Bench of the Lahore High Court, vide
2
Crl. Petition Nos.527 to 529 of 2017 and
Crl. M.A. No.520/2018
impugned judgment dated 6.4.2017 acquitted the respondent from the
charge, being impugned through the captioned petitions.
2.
According to the prosecution, Brig. ® Hamid Mehmood
was chief executive/owner of a Lahore based company set up under
the name and style of Khalid Tariq Trading Company whereas
Muhammad Shafique Ahmed, Director of Nizampur Cement Plant
(NCP), owned by Army Welfare Trust (AWT); Khawaja Jamil Ahmed
respondent ran a business at Karachi under the rubric of Unique
Agency. M/s Muhammad Shafique Ahmed in connivance with co-
accused Khawaja Jamil Ahmed, latter purporting as an agent of M/s
Product & Technologies Singapore signed a contract for supply of
40000 metric ton Indonesian coal to furnace the cement plant, without
any accreditation from the said company. As per prosecution, Brig. ®
Hamid Mehmood, being at the helm of affair and fully cognizant of the
scam, played a pivotal role in transfer of Rs.144 million through Soneri
Bank Rawalpindi by producing fake shipping documents without any
consignment, ever reaching the furnace. It is also prosecution case
that through fake and forged documents, a sum of US $ 2395115 was
released for M/s Products & Technologies Singapore with the
connivance of one Hong Wei on 28.3.2005, a portion whereof
comprising US $ 115883 were transacted in the personal foreign
currency account of Brig. ® Hamid Mehmood during the period
31.3.2005 to 19.4.2005. Khawaja Jamil Ahmed respondent caused
further loss to the exchequer by assisting the co-accused to fabricate
fake/bogus shipments from a local source to the tune of Rs.55.72
million. Total loss to the exchequer is worked out as Rs.13,70,91,628/-
As the respondents claimed trial the prosecution produced 12
witnesses besides plethora of documentary evidence, confirming inter
se transactions through automatic banking systems, viewed as
constituting preponderance of “proof beyond doubt” by the learned
Accountability Judge.
3.
Learned Special Prosecutor NAB contends that in the face
of irrefutable and overwhelming evidence, comprising transactions
through banking channels, there was no occasion for the High Court
to entertain any hypothesis, other than respondents’ guilt and, thus,
3
Crl. Petition Nos.527 to 529 of 2017 and
Crl. M.A. No.520/2018
the impugned acquittal, being in gross violation of settled norms of
administration of criminal justice, warrants interference to avoid
miscarriage of justice as well as to secure financial interest of the
Republic. It is next argued that the so called “shortcomings” referred to
by the High Court, being peripheral, illusory and inconsequential could
hardly override the tangible positive proof, inexorably pointed upon
respondents’ culpability, being artificial, merit outright rejection.
Leave is granted to, inter alia, consider the above contentions. Notice
shall issue to the respondents through bailable warrants in the sum of
Rs.1 million each with one surety, returnable to Additional Registrar
(Judicial) of this Court. Direction issued by the High Court for the
refund of amount deposited by Brig. ® Hamid Mehmood respondent at
the time of his release on bail is held in abeyance till the final disposal
of the appeal.
Judge
Judge
Judge
Islamabad, the
22nd February, 2022
Azmat/-
4
Crl. Petition Nos.527 to 529 of 2017 and
Crl. M.A. No.520/2018
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mazhar Alam Khan Miankhel
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.527 of 2020
(Against the order dated 28.4.2020
passed by the High Court of Balochistan,
Quetta in Crl. B. A.T. No.40/2020)
Noor Bakhsh
…Petitioner(s)
Versus
The State
…Respondent(s)
For the Petitioner(s):
Mr. Liaquat Ali Khan Tareen, ASC
Syed Rifaqat Hussain Shah, AOR
For the State:
Syed Baqar Shah, ASC
Date of hearing:
01.07.2020.
ORDER
Qazi Muhammad Amin Ahmed, J.- Noor Bukhsh,
petitioner herein, seeks admission to post arrest bail; he had allegedly
shot one Abdul Qayyum, way back on 29.9.2013 within the remit of
Police Station Gawadar on his opposition over an unauthorized gasoline
outlet, managed by him in the neighbourhood; fire shot injury on the
spinal cord finally resulted into the death, though after lapse of almost
six years. Section 324 of the Pakistan Penal Code, 1860, after injured’s
death has been substituted with section 316 thereof. Repeated
attempts for bail failed before the Courts below, last being in the High
Court on 28.04.2020 on account of absence of a fresh ground.
2.
Heard.
3.
Petitioner stayed away from law for a period exceeding half
a decade and was finally arrested on 3.2.2020; being a fugitive from
law, that too for a pretty long period of time, he has disentitled himself
to the concessions, ordinarily extended in discretion to an offender.
While it is for the trial Court to determine the cause of death and
consequences thereof, the case initially set up in the crime report,
supported by the statements of the witnesses and medical evidence
constitutes ‘reasonable grounds’ within the contemplation of section
Criminal Petition No.527 of 2020
2
497 of the Code of Criminal Procedure 1898 with space for further
probe or inquiry in absence whereof, he cannot be released on bail even
on that score. Petitioner’s last attempt in the High Court through a
subsequent petition without any fresh ground has rightly been
declined, calling for no interference by this Court. Petition fails. Leave
declined.
Judge
Judge
Islamabad, the
1st July, 2020
Not approved for reporting
Azmat/-
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE UAZ UL AHSAN
MR. JUSTICE MUNIB AKHTAR
MR. JUSTICE SAYYEO MAZAHAR AL! AKBAR NAQVI
'9FA)
CRIMINAL PETITION NOs. 53-Q & 66-Q OF 2020
(On appeal against the judgment dated 30.06.2020 passed by
the High Court of Balochistan, Quetta in Criminal Appeal No.
43712017 & Murder Reference No, 1112017)
GuI Zarin S/O Abdul Hakim etc
Kamal-ud-Din
Petitioners
(in Cr.P. 53-QJ2020)
(In Cr.P. 66-0J2020)
Versus
Kamal-ud-Din and another
(in Cr.P. 53-QJ2020)
The State
(in Cr. P. 66-012020)
Respondent(s)
For the Petitioners:
Mr. Kamran Murtaza, Sr. ASC
(in Cr.P. 53-QJ2020)
Mr. Jameel Ramzan, ASC
(in Cr.P. 66-013030)
For the State:
Syed Pervaiz Bukhari, State counsel
Date of Hearing:
09.03.2022
JUDGMENT
SAYVED MAZAHAR ALl AKBAR NAQV!, J.- Petitioner Kamal-ud-Din was tried by
the learned Additional Sessions Judge, Killa Abdullah at Chaman pursuant to a
case registered vide FIR No. 6812003 dated 31.05.2003 under Sections
302/324/337-A/147/148/149 PPCfor committing murder of Muhammad Sabir,
cousin of the complainant. The learned Trial Court vide its judgment dated
27.12.2017 convicted the petitioner Kamal-ud-Din under Section 302(b) PPC
and sentenced him to death. He was also directed to pay Compensation
amounting to Rs.500,0001- to the legal heirs of the deceased or in default
whereof to further suffer SI for six months. In appeal, the learned High Court,
while maintaining the conviction of the petitioner under Section 302(b) PPC,
altered the sentence of death into imprisonment for life. The amount of
Compensation and the sentence in default whereof was maintained. Benefit of
Section 382-B Cr.P.C. was also extended to him. Against the impugned
CRIMINAL PETITION NOs. 53-Q & 66-Q OF 2020
-:2:-
judgment, the petitioner Kamol-ud-Din has filed Criminal Petition No. 66-
0J2020 whereas the complainant has filed Criminal Petition No. 53-0.12020
seeking enhancement of the sentence awarded to the petitioner-convict
Komal-ud-Din.
2. The prosecution story as given in the impugned judgment reads
as under:-
'2. The prosecution case as gleaned from the application
submitted by PW-1A GuI Zarin are that on 31st May, 2003 at 8:00
pm his three brothers Muhammad Hanfia, Muhammad Aulia,
Noor Shah and cousin Muhammad Sabir were on their way home
situated at Killi Salahuddin from border and when they reached
Boghra Road bypass the accused persons Kamal, Karam, Fateh
Khan, Abdul Samad Sons of Umai, Dilbar son of Fateh Khan,
Abdul Samad, Sher Ali, Muhammad Wali sons of Abdul Qadeer,
Shaista Khan, Gaji, Janon sons of Abdul Raheern and four
unknown person had blocked the road by parking their vehicles,
on which the brother of the complainant namely Hanfia told the
accused persons to open the road, whereupon the accused
persons became furious and attacked upon his brothers and
cousins with Churries, knives and pistols. It was alleged that
accused Kornai, Fateh Khan, Karam, Abdul Samad sons of Haji
Umai and Dilbar son of Fateh Khan were making firing with
pistols. It was alleged that due to firing made by accused Kornai,
Muhammad Sabir became seriously injured and succumbed to his
injuries on his way to hospital, whereas Muhammad Hanfia,
Muhammad Aulia and Noor Shah were injured by knives and
churries of accused persons. It was further alleged by the
complainant that he can recognize the four accused persons by
their appearance. With these allegations FIR No. 68 of 2003
under Sections 302, 324, 337-A, 147, 148, 149 PPC was registered
with Levies Thana Chaman, District Killa Abdullah."
3. After completion of the investigation, report under Section 173
Cr.P.C. was submitted before the Trial Court. The prosecution in order to prove
its case produced ten witnesses. In his statement recorded under Section 342
Cr.P.C, the petitioner-convict pleaded his innocence and refuted all the
allegations leveled against him. He also recorded his statement on oath as
envisaged under Section 340(2) Cr.P.0 and produced one witness Asmatu/lah in
his defence.
4. Learned counsel for the petitioner-convict argued that there are
glaring contradictions and dishonest improvements in the statements of the
CRIMINAL PETITION NOs. 53-Q & 66-Q OF 2020
-: 3:-
prosecution witnesses of the ocular account, which have escaped notice of the
courts be/ow. 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. Contends that when the learned High
Court after close scrutiny of the evidence has held that the occurrence took
place at the spur of the moment, there was no motive or premeditation on the
part of the petitioner, then there was no occasion to maintain his conviction.
Contends that on the some set of evidence, co-accused Samad has been
acquitted of the charge by the learned Trial Court, therefore, the petitioner also
deserves the some treatment to be meted out.
5.
On the other hand, /earned counsel for the complainant assisted
by learned Law Officer contended that the impugned judgment to the extent of
altering the sentence of death awarded to the petitioner-convict into
imprisonment for life is contrary to low and facts and as such is liable to be set
aside. Contends that the statements of the witnesses of the ocular account are
sufficient to sustain the conviction of the petitioner on the capita/ charge but
the learned High Court reduced the quantum of punishment on shaky and
vague grounds, which are not tenable in law.
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.
In order to prove its case, the prosecution has mainly relied upon
the statements of injured witnesses namely Muhammad Hanfia (PW-3), 0/ia
(PW-4), Noor Shah (PW-6) and the statements of Sirajuddin (PW-2) and
Nizamuddin (PW-5). These prosecution witnesses were subjected to lengthy
cross-examination by the defence but nothing favourable to the petitioner-
convict or adverse to the prosecution could be produced on record. These PWs
remained consistent on each and every material point inasmuch as they made
deposition exactly according to the circumstances happened in this case,
therefore, it can safely be concluded that the ocular account furnished by the
prosecution is reliable, straightforward and confidence inspiring. As far as
minor contradictions in the statements of the PW5 are concerned, the some ore
CRIMINAL PETITION NOs. 53-Q & 66-Q OF' 2020
-: 4:-
natural as admittedly the petitioner remained absconder for a period of 12
long years and the trial begun after his arrest on 24.09.2015. Aftersuch a lapse
of time, some minor discrepancies may occur but the some are neither
dishonest nor are sufficient to discard the testimonies of the PWs of the ocular
account. The medical evidence available on the record is in line with the ocular
account so for as the nature, locale, time and impact of the injury on the
person of the deceased is concerned. So for as the question that the PWs were
closely related to the deceased, therefore, their testimony cannot be believed
to sustain conviction of the petitioner-convict is concerned, it is by now a well
established principle of law that mere relationship of the prosecution witnesses
with the deceased cannot be a ground to discard the testimony of such
witnesses unless previous enmity or ill will is established on the record to
falsely implicate the accused in the case but no such thing could be brought on
record. All these PW5 have reasonably explained their presence at the place of
occurrence. Learned counsel for the petitioner-convict could not point out any
reason as to why the complainant has falsely involved the petitioner-convict in
the present case and let off the real culprit, who has committed murder of his
cousin. Substitution in such like cases is a rare phenomenon. The complainant
would not prefer to spare the real culprit and falsely involve the petitioner
without any rhyme and reason. The recovery is held to be inconsequential as
admittedly the petitioner was arrested after 12 years of the occurrence and it
W05 impossible to retain the crime weapon with him in such a long period of
time. The petitioner had also got recorded his statement under Section 340(2)
Cr.P.0 and produced one defence witness in support of his version that he was
not present at the place of occurrence at the relevant time. However, except
for the bald statement, no credible evidence in this regard could be brought on
record. As for as the argument of learned counselfor the petitioner that on the
some set of evidence co-accused Samad who was ascribed the similar role has
been acquitted whereas the petitioner has been convicted is concerned, the
learned High Court has rightly observed that the case of the petitioner is
distinguishable to that of the acquitted co-accused as all the eye-witnesses
stated that the bullet, which hit the deceased, was fired by the petitioner
whereas only a general role of firing was ascribed to the co-accused Samad. In
these circumstances, it can safely be said that the prosecution has brought on
i1
CRIMINAL PETITION NOs. 53Q & 66-Q OF 2020
-: 5:-
record reliable evidence to sustain the conviction of the petitioner. However, so
far as the quantum of punishment is concerned, we are of the view that when
the learned High Court itself has observed that the occurrence took place at the
spur of the moment over the blockage of passage and there was no pre-
meditation on the part of the petitioner; the petitioner only fired single shot
and did not repeat the some despite having ample opportunity to do so; no
motive has been alleged by the prosecution for the commission of the crime
and the recovery of the weapon is inconsequential, the sentence of
imprisonment for life was not justified. In this view of the matter, we convict
the petitioner Kamal-ud-Din under Section 302(c) PPC and sentence him to
fourteen years RI. So for as the argument of the learned counsel for the
complainant that it was not a sudden affair and the finding that the petitioner
only fired single shot is contrary to record is concerned, despite our repeated
queries he could not show us from record anything in support of his contention,
which could persuade us to hold otherwise.
7. For what has been discussed above, Criminal Petition No. 66-
0J2020 is converted into appeal and partly allowed and the impugned
judgment is modified as stated in the preceding paragraph whereas Criminal
Petition No. 53-012020 is dismissed. The above are the detailed reasons of our
short order of even date.
Islamabad, the
9th of March, 2022
Approved For Reporting
Em
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Sh. Azmat Saeed, ACJ
Mr. Justice Ijaz ul Ahsan
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.533 of 2019
(Against the judgment dated 22.4.2019
passed by the Peshawar High Court, Bannu
Bench
in
Criminal
Miscellaneous
B.A.
No.123-B/2019).
Alamgir Khan
…Petitioner(s)
VERSUS
The State and another
…Respondent(s)
For the Petitioner(s)
: Mr. Salahuddin Malik, ASC
Mr. M.A. Sheikh, AOR
For the State
: Mr. Zahid Yousaf Qureshi,
Addl. A.G. KPK.
Muhammad Alam, A.S.I.
Date of Hearing
: 31.7.2019.
O R D E R
Qazi Muhammad Amin Ahmed, J.- Alamgir Khan,
petitioner herein, declined downstairs throughout, seeks
admission to bail; he was surprised by a raiding party, within
the precincts of Police Station Lakki Marwat, surreptitiously
siphoning
natural
gas
in
a
residential
premises
to
unauthorizedly generate electricity being distributed to a large
number of consumers in the neighborhood; he is also accused
of criminally intimidating the contingent, brandishing a pistol
on them, however took to the heels on arrival of police.
Appliances
being
used,
comprising
electric
generators,
stabilizers with electric panels as well as other paraphernalia
to power the system were secured vide inventory.
2.
Position taken by the learned counsel for the
petitioner requires an in-depth analysis, essentially on the
Criminal Petition No.533 of 2019
2
basis of evidence, yet to be recorded and thus falls far outside
the barriers of tentative assessment. Statements of the
witnesses, functionaries of the State with no animus or malice,
duly corroborated by apparatus secured from the spot,
constitute ‘reasonable grounds’, within the contemplation of
Section 497 of the Code of Criminal Procedure, 1898 to prima
facie frame the petitioner with the charge that attracts the bar
contained therein as Section 462-C of the Pakistan Penal Code,
1860 carries a punishment that may extend to ten years
rigorous imprisonment. View taken by the Courts below being
well within the remit of law is not open to any exception.
Petition fails. Dismissed.
Acting Chief Justice
JUDGE
Islamabad, the
31st of July, 2019
Ghulam Raza/*
JUDGE
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Sajjad Ali Shah
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition Nos.534 & 513 of 2019
(Against the judgment dated 11.03.2019 passed by the Lahore High
Court Rawalpindi Bench Rawalpindi in Crl. Appeal No.728-J/2016
with M.R. No.10/2017)
Khalid Naseer
(in Cr.P.534/2019)
Khurram Attaullah
(in Cr.P.513/2019)
…Petitioner(s)
Versus
The State
(in Cr.P.534/2019)
Khalid Naseer & another
(in Cr.P.513/2019)
….Respondent(s)
For the Petitioner(s):
Ch. Afrasiab Khan, ASC
(in Cr.P. No.534 of 2019)
For the State:
N.R.
For the Complainant:
Raja Ikram Amin Minhas, ASC
Syed Rifaqat Hussain Shah, AOR
(in Cr.P.513/2019)
Date of hearing:
17.09.2020.
ORDER
Qazi Muhammad Amin Ahmed, J.- Raja Saifullah Khan,
60/65, hereinafter referred to as the deceased, accompanied by Khuram
Attaullah (PW-13), Farrukh Atta and Hameed Ullah (PW-14) was returning
home at about 7:25 p.m. on 24.06.2010; as he reached in front of the
house of Khalid Naseer, petitioner herein, the latter emerged therefrom
with a .30 caliber pistol and soon after exhortation repeatedly shot the
deceased, targeting different parts of the body. Litigation, both criminal as
well as civil, raging between the parties is cited as motive for the crime.
Still gasping for life, the deceased was rushed to THQ Hospital Pind Dadan
Khan where after a brief struggle he succumbed to the injuries. Khurram
Attaullah, PW laid information with the police at 8:40 p.m. in the hospital.
The Medical Officer noted three entry wounds on the locales mentioned in
Criminal Petition Nos.534 & 513 of 2019
2
the crime report. The petitioner stayed away from law, however, was finally
arrested on 16.3.2014; indicted before a learned Additional Sessions Judge
at Pind Dadan Khan, he claimed trial that resulted into his conviction
under clause (b) of Section 302 of the Pakistan Penal Code, 1860; he was
sentenced to death vide judgment dated 29.10.2016. The High Court
upheld the conviction, however, altered penalty of death into imprisonment
for life vide impugned judgment dated 11.03.2019, being assailed both by
the petitioner as well as the complainant through the captioned petitions,
being decided by this single judgment.
2.
Learned counsel for the convict contends that the deceased
was done to death in an un-witnessed occurrence and that the petitioner
had been arrayed on account of a misconceived and misplaced suspicion
due to past bad blood between the parties. In order to qualify the argument,
the learned counsel has referred to the statement of Khuram Attaullah
(PW-13) admitting that he managed a Computer & Commerce Institution at
Mian Channu, a place situated at a considerable distance. According to the
learned counsel, being architect of the case, absence of the complainant
from the scene casts away the entire case. It is next argued that given the
admitted animosity between the two sides, prosecution evidence required a
more cautious and careful scrutiny, an exercise omitted by the Courts
below. Failure of motive and inconsequential recovery have also been
highlighted as flaws inherent in the prosecution structure. It would be
unsafe to maintain the conviction, concluded the learned counsel. Learned
counsel for the complainant while defending the impugned judgment has
prayed for reversal of death penalty; he argued that given the magnitude of
violence, callously unleashed upon the deceased without any provocation,
there was hardly an occasion for the High Court to alter the penalty of
death after affirming the conviction. According to him, the death penalty
was the only conscionable wage in circumstances.
3.
Heard. Record perused.
4.
Crime scene is located at a distance of 15 kilometers from the
police station; occurrence statedly took place at 7:25 p.m. during the last
week of June. Despite gun shots, including on the back of chest with a
corresponding exit, the petitioner was brought to the hospital in semi
unconscious condition where he was attended by the medical officer at 9:00
p.m. under a police docket. Interregnum between the occurrence and
deceased’s initial medical examination excludes possibility of any
Criminal Petition Nos.534 & 513 of 2019
3
manipulation, consultation or deliberation in recording of complaint at 8:40
p.m, 20 minutes before the conclusion of medical examination. Petitioner’s
disappearance from the scene for about three years is a circumstance that
cannot be viewed with favour. No serious challenge has been thrown to the
motive, set up in the crime report, though disbelieved by the High Court for
prosecution’s failure to establish the rancor through independent evidence.
Dissimilarity of casings secured from the spot with the weapon shown to
have been belatedly recovered is not of much consequence inasmuch as the
petitioner was not expected to retain the pistol during the long period of his
absconsion as a trophy of his crime. The fate of the case essentially hinges
upon the ocular account furnished by Khuram Attaullah (PW-13) and
Hameed Ullah (PW-14). Attack on former’s credentials as a chance witness,
subsequently managed at the scene, is an argument structured on a half-
cooked cross-examination and, thus, fails to inspire confidence; the witness
candidly admitted that though resident of the village, he was running a
Computer & Commerce Institution at Mianchannu; this inconclusive probe,
by itself, does not exclude his presence from the scene at 7:25 p.m; in an
otherwise inordinate cross-examination, his presence in Mianchannu, on
the fateful day, is not even suggested to him and it was merely alleged that
he was not present at the spot and that in connivance with the police he
maneuvered the crime report, a position vehemently denied. Given the
timeframe wherein the deceased was initially medically examined under a
police docket and recording of complaint Ex.PJ shortly preceding therefrom
do not support the hypothesis of complainant’s absence from the scene; he
has comfortably faced the cross-examination by sharing all the relevant
details compatible with the salient features of the incident and events
collateral therewith. The next witness is Hameed Ullah (PW-14); his
statement is in a complete unison with Khurram Attaullah PW and the
defence counsel opened cross-examination with a suicidal question, in
response whereto, he stated as under:
“My house is adjacent to the Baithak of Khalid
Naseer accused towards its eastern side”
Subsequent attempts by the defence through multiple bald suggestions,
consistently denied, failed to neutralize the impact. A witness, resident next
to the scene of occurrence, furnishing exhaustive details, found consistent
with the testimony of other witness, in line with medical evidence is entitled
to credence without demur. Despite three entry wounds, nomination of
Criminal Petition Nos.534 & 513 of 2019
4
single accused by the complainant in the backdrop of persisting bad blood
reveals a truthful restraint from casting a wider net, confined to the actual
offender alone, who could not have been possibly swapped through
substitution in a small rural neighbourhood. Criminal Petition No.534 of
2019 fails. Leave declined.
5.
In the peculiar facts and circumstances of the case, the learned
High Court preferred the alternate penalty of imprisonment for life upon
prosecution’s failure to produce independent evidence to establish the
motive though otherwise figuring as a common ground on the record,
nonetheless, imprisonment for life, a legal sentence provided under the law,
we do not feel persuaded to interfere with the quantum settled by the High
Court. Criminal Petition No.513 of 2019 is dismissed. Leave declined.
Judge
Judge
Islamabad, the
17th September, 2020
Not approved for reporting
Azmat/-
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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 NO. 537 OF 2021
(On appeal against the order dated 07.05.2021 passed
by the Lahore High Court, Multan Bench in Crl. Misc. No.
2846-B/2021)
Sajid Hussain @ Joji
… Petitioner
VERSUS
The State and another
… Respondents
For the Petitioner:
Kh. Qaiser Butt, ASC a/w petitioner
For the State:
Mirza Abid Majeed, DPG
Mr. Jam Saleem, DSP
Date of Hearing:
06.09.2021
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 pre-arrest bail in case registered
vide FIR No. 678/2019 under Section 302 PPC at Police Station Old
Kotwali, Multan. The same relief was denied to him by the learned
Trial Court vide order dated 21.04.2021 and was also declined by the
learned High Court vide impugned order dated 07.05.2021.
2.
Briefly stated the facts of the matter are that on
24.11.2019, the complainant and the petitioner went to see Malik
Amir Sultan at his house. At about 01.00 am, one Haroon while
armed with pistol came at the residence of the said Amir Sultan and
made two fire shots with his pistol, one of which landed on the right
thigh of the said Amir Sultan. The said Amir Sultan was evacuated
for medical treatment in injured condition but he succumbed to the
injuries on his way to hospital. Initially, the petitioner was cited as a
prosecution witness in the FIR but subsequently on the statement of
Mst. Masooma Bibi, real sister of the deceased, he was arrayed as an
accused in the case.
Criminal Petition No. 537/2021
2
3.
At the very outset, learned counsel for the petitioner
argued that the petitioner has been falsely involved in this case due
to mala fides of the complainant in connivance with the local police;
that primarily the petitioner was cited as a prosecution witness in the
crime report and his statement under Section 161 Cr.P.C was
recorded by the Investigating Officer in this regard; that the
prosecution has taken a somersault after lapse of considerable time
while introducing Mst. Masooma Bibi, who got recorded her statement
under Section 161 Cr.P.C. wherein she leveled the allegations of
causing two successive fire shots on the person of the deceased to the
petitioner; that the delayed statement of the prosecution witnesses
introduced at a belated stage leaves sufficient room to extend the
relief sought for; that the whole prosecution case is based upon bald
statements of the two prosecution witnesses, which prima facie seem
to be made after due deliberation and consultation, hence, the same
do not strengthen the prosecution case in any manner.
4.
On the other hand, learned Deputy Prosecutor General
has defended the impugned order declining bail to the petitioner. He
mainly submitted that the petitioner was specifically nominated by
Mst. Masooma Bibi with a specific role of causing successive fire
shots at the person of the deceased; that she is a natural witness and
has no malice against the petitioner to falsely involve him in the case.
5.
We have heard the arguments of both sides and have
perused the record with their assistance.
We are conscious of the fact that the petitioner has
assailed the instant petition seeking extraordinary relief of pre-arrest
bail from this Court in a murder case, which entails capital
punishment. The superior courts of the country are hesitant to extend
the said relief in such like cases and the same is exercised with due
care and caution sparingly. However, this Court being the ultimate
court of justice is supposed to do complete justice in the interest of
safe administration of criminal justice and whenever it feels that the
case of the prosecution is based upon trump up charges or mala fides
it comes for the rescue of the innocent persons. Even otherwise, a
duty is casts upon the courts of law to provide protection of law to the
innocent persons against whom frivolous litigation has been lodged.
In the instant case, this Court cannot loose sight of the fact that the
petitioner was cited as a prosecution witness while lodging the crime
Criminal Petition No. 537/2021
3
report with a role of facilitating the evacuation of the deceased to the
hospital by calling Police Emergency Helpline ‘15’ and Rescue 1122.
Apart from this, it is also admitted fact that the prosecution kept mum
for almost one year and it was on 22.10.2020 that one Mst. Masooma
Bibi was introduced by the prosecution who made a statement under
Section 161 Cr.P.C. claiming herself to be an eyewitness of the
occurrence and leveled the allegation of causing two successive fire
shots on the person of the deceased to the petitioner. The statement of
Mst. Masooma Bibi was further supplemented by another eyewitness.
However, the same was recorded with an inordinate delay of 1 year
and 4 months. During the course of proceedings before us, we have
specifically inquired from the Investigating Officer about any progress
made in the investigation qua the role of the petitioner but he failed to
substantiate any incriminating material except the bald statements
made by two prosecution witnesses at a belated stage. Delayed
recording of statement of prosecution witnesses and its value has
been enunciated by now as universal application where it is now
established principle of law that any statement of the prosecution
witnesses if recorded at a belated stage, it looses its sanctity.
Reliance is placed on the judgment reported as Abdul Khaliq Vs. The
State (1996 SCMR 1553). This judgment was followed by this Court
in another judgment reported as Noor Muhammad Vs. The State
(2020 SCMR 1049) wherein it was held as under:-
“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 v. 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".”
6.
We are also conscious of the fact that earlier the scope of
pre-arrest bail was narrow and it was only limited to rare cases.
However, the law is not static in any manner rather it has to grow
while passing through the process of evolution which is an essential
ingredient of safe administration of criminal justice. In the case of
Miran Bux Vs. the State (PLD 1989 SC 347), the petitioner/accused
was charged in a murder case but before he could be arrested, he
Criminal Petition No. 537/2021
4
approached the learned Sessions Judge for grant of pre-arrest bail,
which was accordingly granted to him. However, on the application of
the complainant before the learned High Court seeking cancellation of
bail granted to the petitioner Miran Bux, the learned High Court
cancelled the pre-arrest bail granted to him. Being aggrieved by the
order of the learned High Court, the petitioner in that case
approached this Court and this Court restored the bail granted to him
by the learned Sessions Judge by holding as under:-
4. Apart from this we find that the Sessions Judge granted the
pre-arrest bail to the appellant after considering the merits of
the, case inasmuch as he inter alia observed that the injury
alleged to have been caused by the appellant to the leg of the
deceased by gun. shot was according to the post-mortem note,
neither fatal nor was caused on the vital part of the body and
was declared to be simple and that it was a case of further
inquiry so far as the appellant is concerned. The High Court did
not at all, consider the case on merits though this Court in the
case of Jamaluddin v. State 1985, SCMR1949 has observed at
page 1952 of the report as follows:
“it has been laid down by this Court that the grant or
refusal of bail in criminal cases primarily depends upon
the facts of each case and no hard and fast rules can be
laid down in this regard. In Murad Khan's case to which
reference was made by the learned Judge, this Court
reiterated the principle that arrest for ulterior motives such
' as humiliation and unjustified harassment was a valid
consideration for grant of pre-arrest bail. Similar rule was
laid down in Zia-ul-Hasan's case. In our opinion.
therefore, the order of the learned Sessions Judge, did not
in any respect, disregard the well-recognized principle for
grant of pre-arrest bail to the petitioner. Without upsetting
the finding, reached by the learned Sessions Judge that
the petitioner had been involved for ulterior motives of
harassing due to enmity existing between the parties, the
learned Judge in the High Court was not justified to
invoke his suo motu powers for the purpose of canceling
the order of bail."
7.
This Court in the above-referred salutary judgment
rendered by a five members’ bench has broadened the scope of pre-
arrest bail and held that while granting extraordinary relief of pre-
arrest bail, merits of the case can be touched upon. Hence, virtually
the scope of pre-arrest bail has been extended by this Court while
rendering the afore-referred judgment. Even otherwise, this aspect of
the law further lends support from the bare reading of provisions of
Section 497/498 Cr.P.C. The word ‘further inquiry’ has wide
connotation. Interpretation of criminal law requires that the same
should be interpreted in the way it defined the object and not to
construe in a manner that could defeat the ends of justice. Otherwise,
Criminal Petition No. 537/2021
5
an accused is always considered a ‘favorite child of law’. When all
these aspects are considered conjointly on the touchstone of
principles of criminal jurisprudence enunciated by superior courts
from time to time, there is no second thought to this proposition that
the scope of pre-arrest bail indeed has been stretched out further
which impliedly persuade the courts to decide such like matters in
more liberal manner. Because basic law is bail not jail. Otherwise, the
liberty of a person is a precious right, which has been guaranteed by
the Constitution of Islamic Republic of Pakistan, 1973. Denial of
liberty of a person is a serious step in law, therefore, the Courts
should apply judicial mind with deep thought for reaching at a fair
and proper conclusion. Such exercise should not be carried out in
vacuum or in a flimsy or casual manner as that would defeat the
ends of justice because if the accused is ultimately acquitted at the
trial then no reparation or compensation can be awarded to him for
the long incarceration he had already suffered. Even none of the
provisions of Cr.P.C provide any remedy to be claimed by the
petitioner for its compensation.
8.
In view of the facts and circumstances and the spirit of
the law as stated above, we are of the considered view that the
petitioner has made out a case for grant of extraordinary relief of pre-
arrest bail. Resultantly, we convert this petition into appeal, allow it
and set aside the impugned order. The ad-interim pre-arrest bail
granted to the petitioner by this Court vide order dated 15.06.2021 is
hereby confirmed.
JUDGE
JUDGE
JUDGE
Islamabad, the
6th of September, 2021
Approved For Reporting
Khurram
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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 AHMAD
Criminal Petition No.540-L OF 2021
(Against the order dated 31.03.2021 passed by the Lahore High
Court of Lahore in Crl. Misc. No.19186-B/2021)
Syed Husnain Haider
…Petitioner(s)
VERSUS
The State and another
…Respondent(s)
For the Petitioner(s):
Syed Tayyab Nasir Mehmood, ASC
(video link at Lahore)
along with Syed Husnain Haider, in
person (at Islamabad)
For the Respondent(s):
Ch. Muhammad Maqsood Butter, ASC
Date of Hearing:
14.07.2021
O R D E R
Qazi Muhammad Amin Ahmed, J.- In a family breach, the
petitioner has been blamed by the complainant, no other than a close
relative, to have issued him two bank cheques, to the tune of rupees one
crore forty-seven lac, towards fulfillment of a financial obligation, arisen out
of a botched sale transaction relating to some piece of land, bounced upon
presentation; avoiding arrest for a considerable span of time, he has finally
been declined judicial protection by a learned Judge-in-Chamber of Lahore
High Court vide order dated 31.3.2021 to argue before us that in the
absence of any subsisting ‘financial obligation’ he had handed over the
cheques to his brother Syed Zulqarnain as security instrument for the
settlement of family feud, fraudulently taken over by the complainant,
cancellation whereof, is being pursued through a declaratory suit, sub judice
Criminal Petition No.540-L OF 2021
in a Civil Court at Chunian till date, a position vehemently contested by the
learned Law Officer with the assistance of counsel for the complainant.
2.
Heard. Record perused.
3.
The
impugned
instruments
admittedly
belonged
to
the
petitioner; these carry a wording on their back as “shorty”, however, the
learned counsel despite his best attempt has not been able to point out, even
obliquely, any clause of contract/agreement or any portion thereof, in
performance whereof, the petitioner purportedly stood surety. Supported by
statutory presumption of being a valid instrument, a drawer cannot ward off
the consequences of its failure through bald plea of being an unsuspecting
surety. Even otherwise, within the family fold in a close degree, the petitioner
has not been able to point out any mala fide or animus, possibly lurking
behind his long due arrest in a non-bailable/cognizable offence, a sine qua
non to divert the usual course of criminal law. View concurrently taken by
the courts below being well within the remit of law calls for no interference.
Petition fails. Leave declined.
Judge
Judge
Judge
ISLAMABAD
14th July, 2021
Azmat/*
“Not approved for Reporting”
Criminal Petition No.540-L OF 2021
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mazhar Alam Khan Miankhel
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.540 of 2020
(Against the order dated 20.05.2020 passed by the Lahore High Court
Rawalpindi Bench Rawalpindi in Crl. Misc.No.719-B/2020)
Muhammad Ejaz
…Petitioner(s)
Versus
The State & another
…Respondent(s)
For the Petitioner(s):
Mr. Ghulam Farooq Awan, ASC
Mr. Muhammad Sharif Janjua, AOR
For the Respondent(s):
N.R.
Date of hearing:
07.07.2020.
ORDER
Qazi Muhammad Amin Ahmed, J.- Accompanied by
co-accused, the petitioner thrashed Sohail Ikram PW within the
precincts of District Courts Rawalpindi, where he was present to record
his statement as a witness against the assailants; he endured multiple
injuries that included a nasal fracture. Petitioner’s plea for bail was
withdrawn and dismissed as such on 2.4.2020. After his failure
throughout, the petitioner again approached the Court for admission to
bail on the ground that findings recorded by a medical board had
furnished him a new ground for release on bail as the injury suffered
by the complainant was viewed as possibly fabricated.
2.
Learned counsel for the petitioner contends that a medical
board comprising four experts unanimously opined as under:
“After having gone through examination the Board is
of unanimous opinion that regarding injury No.4,
possibility of fabrication/fall cannot be ruled out”
The above unanimity of opinion according to the learned counsel not
only constituted a fresh ground but also squarely brought petitioner’s
case within the remit of further probe.
3.
Heard. Record perused.
Criminal Petition No.540 of 2020
2
4.
Occurrence took place on 10.12.2019 and the injured was
examined same day when the medical officer noted as many as four
injuries on his person and categorically ruled out possibility of their
fabrication; he kept the injuries under observation and referred the
examinee for radiographic examination wherefrom he was further
referred for CT scan which confirmed fracture of nasal bone. The
accused, however, moved learned Area Magistrate on 18.1.2020 for
re-examination of the injured on the grounds that “medical report 2564/19
is totally false and fake and is being obtained by the complainant and other person
while in connivance with medical officer and if, there is any injury on the body of the
abovementioned person then the same is result of self-fabrication and concocted one”.
The learned Magistrate without taking the injured on board or
recording argument of ADPP, marked present during the proceedings,
directed medical examination by the Standing Medical Board. It is in
this backdrop, the Board assembled on 4.3.2020 to re-examine the
complainant. It evaluated the nature of injuries on the basis of opinion
recorded by the Radiologist Dr. Umm-e-Kalsum whom the injured was
referred for C.T. Scan by Dr. Rida Arshad CMO and it is on the basis of
findings recorded by the above medical officers that the Board rendered
its opinion being relied upon by the petitioner.
We have gone through the entire record of the case. The first
medical officer has unambiguously ruled out possibility of any foul
play, however, the learned Magistrate readily obliged the defence
without affording opportunity of hearing to the injured; even the Law
Officer is shown present as a silent spectator to the proceedings. The
application moved on behalf of the accused is not only stereotype and
slipshod but also self-destructive as well; on the one hand, it is
asserted that the impugned medical report was totally false and fake
with the alternate allegation of injuries being self suffered and
fabricated in case these are noted during examination by the Board.
There was no occasion for the learned Magistrate to hurriedly exercise
ex-parte jurisdiction to the detriment of prosecution/injured in the face
of allegations vague and non-specific. The first medical examination
was protected by statutory presumption of being genuine under Article
129(e) of the Qanun-e-Shahdat Order, 1984 as well as under Article
150 of the Constitution of the Islamic Republic of Pakistan, 1973. Such
formidable statutory protections cannot be summarily dismantled on
the whims of an accused struggling to ward off consequences of
criminal prosecution, therefore, a Magistrate must insist for tangible
and sufficient grounds to plausibly justify exposure of a person already
Criminal Petition No.540 of 2020
3
wronged to the inconvenience and embarrassment of a re-examination,
a consideration conspicuously missing in the present case. While an
accused is certainly entitled to “Due Process of Law” and a meaningful
opportunity to contest indictment with a view to vindicate his position,
the prosecution and its witnesses also deserve protection of law so as
to prosecute the case with least inconvenience and without
unnecessary hardship; equality before law without equal protection is a
travesty; scales must be held strictly in balance. Performance of
medical board is no less dismal either. It miserably failed to take stock
of findings recorded by Dr. Rida Arshad, CMO, reproduced as below:
“Suspicious radiolucency is seen on nasal
surface. Medico legal C.T. scan nasal bone is
suggested.
No bony injury is seen in (L) orbit and face.”
She referred the examinee for C.T. scan conducted by Dr. Umm-e-
Kalsum that conclusively confirmed fracture of the nasal bone; her
finding is reproduced below:
“Fracture nasal bone viewed.”
The members of the medical board not only ignored the above findings,
they went a step further in their inconsequential opinion to add the
possibility of a fall as well, a case never agitated even by the accused.
Even otherwise, observation that possibility of fabrication/fall cannot
be ruled out is a judgment resting upon the brink of hypothetical
possibility that by itself cannot override positive findings earlier
unanimously recorded by the medical officers who attended the
injured; possibilities are infinite and cannot dislodge proof. The opinion
is also devoid of any objective finding and, thus, we do not feel inclined
to receive the half-cooked hypothesis of fabrication/fall as a fresh
ground in circumstances. Petition fails. Leave declined. Observations
being issue specific will not cast their shadows upon the outcome of
trial to be settled essentially upon the strength of prosecution evidence
alone, expected to be concluded with all convenient dispatch.
Judge
Judge
Islamabad, the
7th July, 2020
Not approved for reporting
Azmat/-
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mazhar Alam Khan Miankhel
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.543 of 2020
(Against the order dated 5.3.2020 passed
by the Peshawar High Court Bannu Bench
Bannu in Crl. Misc. No.73-B/2020)
Habib Ullah Jan & another
…Petitioner(s)
Versus
The State through A.G. KPK & others
…Respondent(s)
For the Petitioner(s):
Mr. Adil Aziz Qazi, ASC
Mr. Sher Afzal Khan, ASC
For the State:
Mr. Fakhruddin Shah, ASC
For the Complainant:
Mr. Anis M. Shahzad, ASC
Date of hearing:
07.07.2020.
ORDER
Qazi Muhammad Amin Ahmed, J.-Habib Ullah Jan and
Asif Ullah Khan are amongst the accused arrayed in a case of
murderous assault, lodged by Saad Ullah PW. It is alleged that on the
eventful day, differently armed, they assaulted Kaleem Ullah, Saad
Ullah and Riffat Ullah, in consequence whereof, each sustained
multiple injuries, confirmed by medico legal reports. An outstanding
dispute over a piece of land triggered the episode.
2.
Having regard to the magnitude of violence endured by the
witnesses, no less than three in number, prima facie, supported by
medical evidence, statements of the witnesses and spot recoveries, the
High Court having found reasonable grounds, standing in impediment
to petitioners’ release on bail in the absence of any consideration calling
for further probe so as to circumvent statutory bar embodied in section
497 of the Code of Criminal Procedure, 1898, declined the request,
a conclusion arrived at in its discretion and, on our own analysis,
found by us as intra vires being judicially structured, no interference is
called for. Petition fails. Leave declined.
Judge
Judge
Islamabad, the
7th July, 2020
Not approved for reporting
Azmat/-
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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.549 of 2020
(Against the order dated 5.6.2020 passed by the Lahore
High Court Lahore in Crl. Misc. No.19465-B/2020)
Babar Nadeem
…Petitioner(s)
Versus
The State through P.G. Punjab and another
…Respondent(s)
For the Petitioner(s):
Mr. Naveed Ahmed Khawaja, ASC
For the State:
Mirza Abid Majeed,
Additional
Prosecutor
General
Punjab
along with Tana Tanvir, SHO, M. Akram,
I/O.
For the Respondent(s):
Nemo
Date of hearing:
21.07.2020.
ORDER
Qazi Muhammad Amin Ahmed, J.- Manzoor Ahmed, deceased,
was done to death by two unknown assailants, inside his house, located
within the remit of Police Station Saddar Arifwala, District Pakpattan at
9:00 p.m. on 17.2.2020; they vanished into the darkness; identified as
assassins Muhammad Din, Muhammad Latif and Tanvir Hussain were
subsequently arrested under section 54 on 29.2.2020; it is upon their
disclosure that Babar Nadeem, petitioner along with two others was taken
on board as amongst the abettors behind the scene; one of them, namely,
Naveed has since been let off from the array. As the investigation
progressed, the Investigating Officer recorded statements of Sher
Muhammad and Muhammad Shahbaz PWs on 18.2.2020; according to
them, they had seen the petitioner along with two others, shortly before the
Criminal Petition No.549 of 2020
2
occurrence, an information that they statedly conveyed to the complainant
after the occurrence. It is through these statements that the prosecution
also introduced the motive that related to a brawl between the parties 4/5
months prior to the incident.
2.
Heard. Record perused.
3.
Argument that in the absence of any legal evidence there was
no occasion for the Courts below to deny judicial protection to the
petitioner in the face of mala fide vividly lurking behind the intended arrest
warrants serious consideration. We would refrain to comment upon the
absence of abettors’ name in the crime report despite their having been
spotted by the witnesses, shortly before the tragedy struck a small rural
neighbourhood i.e. Chak No.72-EB, nonetheless, the omission by itself
brings petitioner’s culpability within the purview of subsection 2 of section
497 of the Code of Criminal Procedure 1898; combined with exoneration of
Naveed from the list of abettors, argued as mutually destructive with the
hypothesis of conspiracy, does admit space to contemplate considerations
for arrest other than being noble; a case for judicial protection stands made
out. Petition is converted into appeal and allowed; ad interim bail granted
vide order dated 8.7.2020 is confirmed upon furnishing a bond in the sum
of Rs.500,000/- with one surety in the like amount to the satisfaction of the
trial Court.
Judge
Judge
Judge
Islamabad, the
21st July, 2020
Not approved for reporting
Ghulam Raza/-
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Sajjad Ali Shah
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.551 of 2020
(Against the order dated 28.04.2020 passed by
the Islamabad High Court Islamabad in Crl. Rev.
No.24/2020)
Mehmood Qaisar
…Petitioner(s)
Versus
The State & another
…Respondent(s)
For the Petitioner(s):
Maulvi Anwar ul Haq, ASC
Syed Rifaqat Hussain Shah, ASC
For the State:
Mr. Niaz Ullah Khan Niazi,
Advocate
General
Islamabad
with
Zulfiqar Ali, ASI, PS. I-9, Islamabad
For the Respondent(s):
Jam Khurshid Ahmed, ASC
Date of hearing:
17.09.2020.
ORDER
Qazi Muhammad Amin Ahmed, J.- Indicted under section
489-F of the Pakistan Penal Code, 1860, the petitioner, was returned a
guilty verdict by a learned Magistrate at Islamabad vide judgment
dated 26.11.2019; he was sentenced to 3-years rigorous imprisonment,
maintained throughout.
2.
According to the prosecution, the petitioner issued a bank
cheque in the sum of Rs.30,50,000/- to Muhammad Irfan complainant
towards payment of sale consideration of a vehicle, bounced upon
presentation.
3.
Besides the witnesses, prosecution adduced documentary
evidence comprising photocopies of the impugned cheque and bank
slip, duly verified by Zulfiqar Ali ASI (PW-3) from Bank Manager
Mansoor Ali who appeared before the Court as PW-1 to confirm the
transaction. Agreement Ex.PC is also part of the record to establish
purchase of complainant’s vehicle by the petitioner. Petitioner
confronted prosecution evidence with an unsubstantiated plea of
innocence with copies of applications moved by the complainant to the
Crl. P. No.551 of 2020
2
Excise & Taxation Officer Islamabad confirming the transaction in
retrospect.
4.
Learned
counsel
for
the
petitioner,
after
disputing
production of photocopies of the bounced cheque and bank slip,
alternately pleaded for the reduction of sentence to the period already
undergone, a request contested by the learned Law Officer with the
assistance of learned counsel for the complainant. Conceding
production of photocopies, the learned Law Officer argued that
Investigating Officer had verified the documents as true copies of the
originals, required in a summary suit for the recovery of amount under
Order XXXVII of the Civil Procedure Code, 1908; it is further argued
that the bank manager confirmed presentation of the instrument and,
thus, prosecution successfully established the issuance of a cheque
from petitioner’s account towards fulfillment of a financial obligation
and its failure upon presentation. Adverting to the plea for reduction of
sentence, the learned Law Officer presented details of no less than five
other cases of identical nature pending in different courts to argue that
the petitioner being an habitual offender was not entitled to any
leniency.
5.
Heard. Record perused.
6.
The bank manager confirmed issuance of the impugned
cheque and its presentation, bounced twice for lack of balance; he has
also confirmed verification of dishonoured cheque produced before him
by the Investigating Officer. Even otherwise, issuance of the impugned
bank cheque by the petitioner is not disputed and, thus, objection
carries no weight. Similarly, registration of five other cases of identical
nature is also a fact beyond dispute and, thus, it would be rather
unconscionable, in circumstances, to reduce a legal sentence rightly
awarded by the learned Magistrate, considered appropriate both by the
learned Sessions Judge as well as the learned Judge-in-Chamber.
Petition fails. Leave declined.
Judge
Judge
Islamabad, the
17th September, 2020
Not approved for reporting
Azmat/-
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE UMAR ATA BANDIAL
MR. JUSTICE AMIN-UD-DIN KHAN
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
CRIMINAL PETITION NO.560-L OF 2021
(Against the order dated 04.03.2021 of the
Lahore High Court, Lahore passed in Crl. Misc.
No.11025/B/2021)
Basharat Ali
…Petitioner(s)
Versus
The State through Prosecutor General, Punjab and another
…Respondent(s)
For the Petitioner(s):
Dr. Khalid Ranjha, ASC
For the State:
Mr. Muhammad Jaffar, DPG
Mr. Sibtain, I.O.
For Respondent No.2:
Mr. Tariq Nadeem, ASC
Date of Hearing:
15.11.2021
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
04.03.2021 passed by the learned Single Judge of the Lahore High
Court, Lahore with a prayer to grant post arrest bail in case
registered vide FIR No. 415 dated 31.10.2019 under Sections
302/324/34/109 PPC at Police Station Miana Gondal, District
Mandi Bahauddin 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 Kalashnikovs
caused fire-arm injuries to Muhammad Anar and Mazhar Iqbal alias
Mohri as a consequence of which Muhammad Anar died on his way
to hospital.
CRIMINAL PETITION NO.560-L OF 2021
-: 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. Further
contends that though the petitioner was ascribed the role of causing
injury to the deceased and injured PW, however during the course of
second investigation it was found that the petitioner had no nexus
with the crime alleged and even the recovery affected from the
petitioner found to be not connected and as such the case of the
petitioner squarely falls within the ambit of Section 497(2) Cr.P.C.
entitling him for concession of bail.
4.
On the other hand, it has been contended by the
learned Law Officer, assisted by the learned counsel for the
complainant, that the petitioner is nominated with specific role of
causing injuries to the deceased as well as injured PW. Contends
that the earlier bail petition bearing Criminal Misc. No.22590-
B/2020 was dismissed while touching upon the merits of the case
vide order dated 01.07.2020. Further contends that as said order
was not assailed before this Court, therefore, the instant petition is
barred by time and not entertainable in the given facts and
circumstances.
5.
We have heard the learned counsel for the parties at
some length and gone through the record with their able assistance.
There is no denial to this fact that the occurrence has
taken place within the premises of Police Station Miana Gondal, the
parties also belong to the same vicinity and there is no chance of
mis-identification especially when the parties are inimical to each
other. As per the accusation against the petitioner, he is ascribed the
role of causing fire-arm injury on the body of the deceased as well
as injured PW. Both the injuries are spelt out from the medical
report. During the course of first investigation, the petitioner was
found fully involved in the case. The claim of the petitioner that
during the second investigation, he was found innocent does not
imprint any concession in his favour especially when this aspect
was already taken into consideration by the High Court while
dismissing the petition for bail in the first round of litigation. Further
that the Investigating Officer who gave opinion in favour of the
CRIMINAL PETITION NO.560-L OF 2021
-: 3 :-
petitioner has not dared to place his name in column No.2, rather the
same was placed in column No.3 of the report submitted under
Section 173 Cr.P.C. Further that the ground urged before the High
Court and before us was already in the knowledge of the petitioner
and that cannot be made basis for filing another application before
the High Court keeping in view the dictum laid down in The State
through Advocate-General, NWFP Vs. Zubair and 4 others (PLD 1986
SC 173), otherwise the ipsi dixit of the police is not binding, rather it
has persuasive value but that depends upon the facts and
circumstances surfaced on the record. It is salutary principle of law
that each criminal case has its own facts and circumstances and
has to be decided according to the peculiar facts brought on the
record. The contention of the learned counsel that the recovery has
become inconsequential has no bearing at this stage and the same
would be resolved after recording of the evidence.
6.
In view of the facts and circumstances narrated above,
we are of the opinion that the petitioner has failed to make out a
case for enlargement on bail. Consequently, this petition having no
merits is dismissed and leave is refused.
JUDGE
JUDGE
JUDGE
Lahore, the
15th of November, 2021
Approved for reporting
Waqas Naseer/*
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Asif Saeed Khan Khosa, CJ
Mr. Justice Ijaz Ul Ahsan
Criminal Petitions No. 562, 563 and 564 of 2019
(Against the judgment dated 04.03.2019 passed by the Peshawar
High Court, Peshawar in Bail Cancellation Application No. 2358-P,
2088-P of 2017 and 2359-P of 2017)
Fawad Ali
(in all cases)
…Petitioner
versus
The State, etc.
(in all cases)
…Respondents
For the petitioner:
Syed Rifaqat Hussain Shah, ASC
(in all cases)
For the respondents:
N.R. (in all cases)
Date of hearing:
25.07.2019
ORDER
Asif Saeed Khan Khosa, CJ.:
Criminal Miscellaneous Applications No. 772, 773 and 774 of
2019 in Criminal Petitions No. 562, 563 and 564 of 2019
The main petitions are barred by 45 days and the reason
mentioned
in
these
miscellaneous
applications
seeking
condonation of the delay in filing of the main petitions has not
been found by us to be valid or sufficient for the purpose. These
miscellaneous applications are, therefore, dismissed.
Criminal Petitions No. 562, 563 and 564 of 2019
2.
These petitions are dismissed as barred by time.
Criminal Petitions No. 562, 563 and 564 of 2019
2
3.
Before parting with this order we would like to observe that
these petitions seeking cancellation of the private respondents’ bail
are even otherwise misconceived because the impugned judgments
passed by the High Court show that during the pendency of the
proceedings before the High Court the private respondents in these
petitions had failed to appear and resultantly non-bailable
warrants for their arrest had been issued which could not be
executed. The law already stands settled that if an accused person
admitted to bail is subsequently declared a Proclaimed Offender or
non-bailable warrants for his arrest are issued then such
declaration or issuance of non-bailable warrants ipso facto
amounts to cancellation of that accused person’s bail. A reference
in this respect may be made to the cases of Yusuf Masih v the State
(1987 P.Cr.L.J. 1412), Muhammad Boota v Muhammad Arshad and
another (Criminal Miscellaneous No. 1481-CB of 2009 decided by
the Lahore High Court, Lahore on 09.02.2009), Sharafat Ali v The
State, etc. (Criminal Revision No. 680 of 2008 decided by the
Lahore High Court, Lahore on 15.04.2009 which order was
subsequently upheld by this Court through the order dated
04.06.2009 passed in Criminal Petition No. 438-L of 2009) and
Atta-ur-Rehman v Rana Phool, etc. (Criminal Petition No. 558-L of
2014 decided by this Court on 17.07.2014).
Chief Justice
Judge
Islamabad
25.07.2019
Approved for reporting.
Arif
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE SAJJAD ALI SHAH
MR. JUSTICE YAHYA AFRIDI
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
CRIMINAL PETITION NO.566 OF 2021
(Against the judgment dated 03.05.2021 of
the Peshawar High Court, Mingora Bench
(Dar-ul-Qaza),
Swat
passed
in
Criminal
Appeal No.44-M/2021)
Hayat Muhammad
…Petitioner(s)
Versus
State through Additional Advocate General, KP and another
…Respondent(s)
For the Petitioner(s):
Mr. Asadullah Khan Chamkani, ASC
For the State:
Mian Shafaqat Jan, Addl.A.G. KPK
Date of Hearing:
20.09.2021
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 has called in question the judgment of the
Peshawar High Court, Mingora Bench (Dar-ul-Qaza) Swat dated
03.05.2021 whereby his appeal was partially allowed.
2.
As per contents of the crime report bearing FIR No.38 dated
25.05.2020 registered under Sections 324, 148, 149, 337D, 337F(iii)
and 337F(v) PPC at Police Station Talash District Lower Dir lodged by
Lal Muhammad son of Taj Muhammad it was alleged that five persons
in furtherance of common intention gathered close to his house and cut
down the water pipeline. One of the accused Hayat Muhammad turned
furiated and made fire shots with his pistol which landed on the front
left side of abdomen, as a consequence the complainant sustained
injury. The motive behind the occurrence was disclosed as cutting of
water pipeline. In pursuance of the aforesaid crime report, the matter
was entrusted to Additional Sessions Judge, Timergara, District Lower
Dir. Charge in the aforesaid crime was framed against the accused
CRIMINAL PETITION NO.566 OF 2021
-: 2 :-
persons. After completion of the same, the petitioner was convicted and
sentenced as under:-
(i)
Under Section 324 PPC to seven years RI;
(ii)
Under Section 337-D PC to five years RI
with directions to pay arsh equal to 1/3 of
diyat to the injured;
(iii)
337F(iii) PPC to one year RI with directions
to pay Rs.50,000/- as daman to the
injured; and
(iv)
337F(v) PPC to one year imprisonment with
directions to pay Rs.50,000/- as daman to
the injured.
All the sentences were ordered to run concurrently. The
judgment of the Trial Court was assailed before the learned High Court
through Criminal Appeal No.44-M/2021. The learned High Court after
taking into consideration the facts and circumstances of the case and
providing opportunity of hearing to both the parties, maintained the
conviction awarded to the petitioner under Sections 324 and 337-D
PPC, however reduced the sentence from 07 years to 05 years Rigorous
Imprisonment under Section 324 PPC, whereas the conviction and
sentences awarded under Sections 337-F(iii) and 337-F(v) were set
aside.
3.
During the course of proceedings before this Court, the
learned counsel for the petitioner vehemently contended that the
statements of Lal Muhammad (PW-3) and Bakhtiar Ahmad (PW-4) of the
ocular account are at variance which do not inspire confidence.
Contends that other prosecution witnesses produced by the prosecution
are only corroborative in nature, hence the conviction and sentences
recorded by the Trial Court and upheld by the High Court are not
sustainable in the eyes of law. When confronted, the learned counsel
admitted that it is now settled principle of law that the statement of
injured PW if corroborative with medical evidence is sufficient for
conviction.
4.
On the other hand, the learned Law Officer has opposed
the contentions raised by the learned counsel for the petitioner and
supported the judgments of the Trial Court and the learned High Court.
5.
We have heard the learned counsel for the parties and
gone through the record.
CRIMINAL PETITION NO.566 OF 2021
-: 3 :-
There is no denial to this fact that the occurrence has taken
place in a broad daylight and the parties are known to each other. The
role ascribed to the petitioner by the injured PW, Lal Muhammad,
clearly reflects that the statement made by him was not confusing in
any manner rather the same is fully corroborated by medical evidence
as Dr. Muhammad Iqbal (PW-12) has clearly reported in his testimony
that there was an inversion wound with no blackening on left groin
region with corresponding hole 1x1 cm on shalwar and qameez with
blood stain, therefore, the medical evidence fully corroborates the
statement of injured so far as the time, locale and nature of injuries is
concerned. There was absolutely no chance of mis-identification,
otherwise the substitution is a rare phenomenon in the instant case. We
have gone through the statement of PW-3, Lal Muhammad who
sustained injuries and found that the statement of injured PW is
straightforward, confidence inspiring and does not left any room to
reconsider the conviction and sentences awarded to the petitioner. After
the occurrence, the pistol was snatched from the petitioner by PW-7
Sirajullah and was subsequently handed over to the SHO. From the
place of occurrence two empties were also taken into possession. Both
the pistol and the empties were sent to Forensic Science Laboratory for
examination and the report received is to the effect that the empties
were fired from the pistol. As the prosecution has produced the ocular
account, medical evidence and the same is also corroborated by the
statement of the Investigating Officer, there is no possibility left to
establish that both the courts below have not appreciated the law in its
true perspective. Resultantly, this petition being devoid of merit is
dismissed and leave is refused.
JUDGE
JUDGE
JUDGE
Islamabad, the
20th of September, 2021
Approved for reporting
Waqas Naseer/*
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Umar Ata Bandial
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition Nos.574 & 575 of 2019
(Against judgment dated 7.3.2019 passed by the
Islamabad High Court Islamabad in Crl. Appeal
Nos.204 of 2015 & 02 of 2017)
Tasar Mehmood
(in Crl.P. 574/2019)
Shahbaz Ahmed
(in Crl.P. 575/2019)
…Petitioner(s)
Versus
The State & others
(in C.P. 574/2019)
The State
(in C.P. 575/2019)
…Respondent(s)
For the Petitioner(s):
Mr. Tariq Mehmood Abbasi, ASC
(in both cases)
Syed Rifaqat Hussain Shah, AOR
For the State:
Mr. Niazullah Niazi,
Advocate General, I.C.T.
along with Mubarak SHO Shahzad Town,
Azhar, SI/I.O.
Date of hearing:
05.05.2020.
JUDGMENT
Qazi Muhammad Amin Ahmed, J.- Tasar Mehmood and
Shahbaz Ahmed, petitioners, along with two others trespassed into a
private hospital managed by Dr. Yousaf Ali (PW-11), located within the
limits of Police Station Shahzad Town Islamabad to commit robbery on
26.11.2013 at 9:45 p.m; as the attendants on the reception resisted
the intruders, they opened indiscriminate fire; Zahid Ali Khan
(PW-10) survived the solitary gunshot, however, a comrade in crime,
identified as Umair Shahzad fatally fell in the line of fire; in the wake of
Criminal Petition Nos.574 & 575 of 2019
2
anticlimax, they took to the heels along with the snatched articles.
Information was laid with the police by the owner who resided upstairs
in the same premises. Spot inspection includes seizure of human blood
and casings as well as lead bullets, 28 in number, vide inventories of
even date. As the investigation progressed, Tasar Mehmood, petitioner,
was arrested on 6.2.2014 followed by Shahbaz Ahmed on 5.3.2014;
they were identified by the injured in a test identification parade under
a magisterial supervision held on 7.3.2014; subsequently, upon
disclosures, they led to the recovery of pistols P-11 & P-7, forensically
found wedded with the seized casings. Prosecution is clueless about
the fourth accomplice till date. Petitioners were indicted for homicide
as well as robbery before the learned Additional Sessions Judge-I (East)
Islamabad; they claimed trial that resulted into their convictions vide
judgment dated 28.11.2016; Tasar Mehmood petitioner was sentenced
to imprisonment for life on both counts whereas Shahbaz Ahmed was
acquitted from the charge of homicide, however, sentenced to
imprisonment for life on coordinate charges with a direction to pay
monetary compensation to the injured; they preferred appeals, during
pendency whereof, the legal heirs of Umair Shahzad deceased
compounded the offence of murder, in consequence whereof, Tasar
Mehmood was acquitted from the said charge; the Islamabad High
Court while maintaining remainder convictions reduced sentences of
imprisonment for life to 10-years R.I. vide impugned judgment dated
7.3.2019, vires whereof, are being assailed by both the convicts
through separate petitions, being decided through this single
judgment.
2.
It is argued that since the petitioners were not named in
the crime report nor arrested at the spot, thus, there was no occasion
for their conviction merely on the statement of a solitary witness who
claimed to have identified them in a test identification parade, held in
derogation to the principles/safeguards provided under the High Court
Rules & Orders, otherwise inconsequential for lack of description of
features as well as assignment of the roles respectively played by the
culprits during the occurrence; absence of Mushtaq Hussain,
Watchman, from the witness box has been referred to as a devastating
blow to the credibility of prosecution case as, according to the learned
counsel, his failure to testify would cast adverse inference within the
contemplation of Article 129 (e) of the Qanun-e-Shahadat Order, 1984.
Criminal Petition Nos.574 & 575 of 2019
3
Mr. Niazullah Khan Niazi, learned Advocate General Islamabad Capital
Territory faithfully defended the impugned judgment.
3.
Heard. Record perused.
4.
A promptitude intervened the events of fateful night;
occurrence took place at 9:45 p.m., complaint is recorded 11:45 p.m. at
the spot; Zahid Ali Khan (PW-10) is examined under a police docket in
the Pakistan Institute of Medical Sciences; autopsy of the slain
accomplice is carried out at 10:30 a.m. following day; none other than
the deceased, identified through his CNIC, is arrayed by name in the
crime report. Spot inspection confirmed the incident. Integrity of initial
investigation is beyond doubt and it is through investigative process
that the police reached out the petitioners; they were kept in judicial
lock up and remitted into police custody only after they had been
identified by the injured in the test identification parade. Weapons
recovered pursuant to disclosures were forensically matched with the
casings dispatched earlier than petitioners’ arrest. These formidable
pieces of evidence were relied upon by the trial court to unhesitatingly
return a guilty verdict. Composition of murder of co-accused by Tasar
Mehmood in the High Court has been nothing less than a last straw in
the episode. In this backdrop, criticism of alleged flaws in the test
identification parade sounds a far cry. Reference to omission of
assailants’ features and respective roles played by them during the
occurrence is beside the point in circumstances. Article 22 of the
Qanun-e-Shahadat Order, 1984 provides mechanics to enable the
witnesses to establish identity of unacquainted assailants, a dilemma
increasingly confronting prosecution in detection of culprits in
expanded urban neighbourhoods. For convenience of reference, it is
reproduced below:-
“Facts necessary to explain or introduce relevant
facts.—Facts necessary to explain or introduce a
fact in issue or relevant fact, or which support or
rebut an inference suggested by a fact in issue or
relevant fact, or which establish the identity of
anything or person whose identity is relevant, or
fix the time or place at which any fact in issue or
relevant fact happened, or which show the relation
of parties by whom any such fact was transacted,
are relevant in so far as they are necessary for
that purpose.”
Criminal Petition Nos.574 & 575 of 2019
4
Juridical wisdom, legislated with ingenious brevity par excellence, is
nonetheless widely spaced to meet diverse situations as calamities
seldom come about under ideal or identical circumstances; same
applies to the responses by those who encounter such situations as
crisis impacts differently upon individuals’ faculties and nerves to
sustain and endure themselves during the ordeal, therefore, it would
be unrealistically inexpedient to apply dogmatic standards with
empirical exactitude to settle the question of assailant’s identity. There
may be situations where witnesses are expected to be more expressive
and descriptive but there may well be contra situations as well. The
underlying purpose behind High Court Rules and Orders, Volume III,
Part-C, based upon a circular issued by the Punjab Government way
back on 19th of December, 1936 is primarily to ensure that the accused
confronting the witnesses in a test identification exercise is least
embarrassed or handicapped. Similarly, Rule 26.32 of the Police Rules,
1934, inter alia, provides as under:-
(a) “The proceedings shall be conducted in the
presence of a magistrate or gazetted police
officer, or, if the case is of great urgency
and no such officer is available, in the
presence of two or more respectable
witnesses not interested in the case, who
should be asked to satisfy themselves that
the identification has been conducted
under conditions precluding collusion.”
The survey of above provision of law renders it abundantly clear that
the process of test identification parade has to be essentially carried
out, having regard to the exigencies of each case, in a fair and non
collusive manner, free from the taints of prejudice; a contra claim must
rest upon evidential basis; the exercise is not an immutable ritual,
inconsequential non performance whereof, may cause failure of
prosecution case, otherwise structured upon clean and probable
evidence. In the present case, the assailants surprised the witnesses
and soon thereafter started snatching the valuables; upon resistance,
one of them resorted to firing; a colleague fell to death on spot at the
hands of his own accomplice and as such their identification by the
witnesses constituted valid and reliable proof to drive home the charge
beyond reasonable doubt. The complainant or the witnesses in their
statements did not point out specific features and as such they were
not required to improve upon their case during the test identification
Criminal Petition Nos.574 & 575 of 2019
5
parade. An effective regime of administration of criminal justice has to
be pivoted on a balance, correlating fair trial for an accused with a
meaningful opportunity to the prosecution to drive home the charge on
the strength of available evidence. Since corporal consequences are
irreversible and freedom once forfeited cannot be restored or
recompensed with retrospect, the Court must insist for “proof beyond
doubt” to rule out possibility of error or hypothesis of innocence,
nonetheless, at the same time, prosecution cannot be saddled to come
forward with details hyper technical, artificial or illusory. Indictment
structured on macro foundations of truthful evidence can sustain the
charge. Evidence comprising natural witnesses, with dead body of a co-
accused, whose murder was subsequently compounded by no other
than one of the petitioners himself squarely constitute proof beyond
doubt. Absence of Mushtaq Hussain, Watchman from the witness box
does not raise any adverse inference as the remainder of the witnesses
were in place during the trial. Petitions fail. Leave declined.
Judge
Judge
Islamabad, the
5th May, 2020
Not approved for reporting
Azmat/-
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IN THE SUPREME COURT OF PAKIISY AJY
SENT:
MR. JUSTICE MAQBOOL BAQAR
MR. JUSTICE SAY Y ED MAZAHAR ALl AKBAR NAQW
ONNO 577 OF 2021
(Against the order dated 20- 04.2021 of the
Lahore High Court, Rawalpindi Bench,
Rawalpindi passed in Crl.M.No.535
B12021)
Mst. Lubna Bibi
Petitioner(s)
VERS
Azhar Javed Abbasi and another
. . . Respondent(s)
For the petitioner(s):
Syeda Hifza Bukhari, ASC
Syed Rifaqat Hussain Shah, AOR
For the State..
Mirza M. Usman, AddLP.a
Date of Hearing 11.11.2 02 1
ORDER
SA ED MAZAHAR ALl A.KBAR NAQVI, j.- Through this petition
under Article 185(3) of the Constitution of the Islamic Republic of
Pakistan, 1973, the petitioner seeks cancellation of bail granted to
the respondent in case FIR No.702120 dated 10.12.2020 under
Sections 337A(ii)1337A(iv)11471149 PPC registered at police Station
Murree, District Rawalpindi by the Lahore High Court, Rawalpindi
Bench, Rawalpindi in the interest of safe administration of criminal
justice.
2. As per the crime report, it is alleged that on 03.12.2020
at about 08:30 a.m. the respondent along with co-accused assaulted
the complainant party and caused injuries to Mst. Nazash Bibi,
Asim, Mst. Talat Bibi and Mst. Lubna Bibi (petitioner). The role
attributed to the petitioner is that he inflicted knuckle duster blow on
the nose of Asim injured flit.
-
CrLP.No.577of2021
-: 2 :-
3. At the very outset, it is contended by the learned
counsel for the petitioner that the order passed by the learned Single
Bench of the High Court is not sustainable in the eyes of law.
Contends that the respondent is ascribed the role of causing injury
which falls within the ambit of Section 337A(vi) PPC which falls
within the prohibitory clause and as such the bail granting order is
devoid of any legal sanctity. Further contends that the respondent
has been extended extra-ordinary relief which is not made out from
the material on record and as such the order passed by the High
Court is based upon artificial findings, which are perverse and
fanciful. Lastly contends that the report of the doctor who examined
the injury at the first instance has to be given preference over any
other opinion. In this regard, he placed reliance on the judgment
reported as Muhammad Ejaz Vs. The State and another (2021 SCMR
387).
4. We have heard the learned counsel for the petitioner
and perused the record with her assistance.
Primarily the concern of the learned counsel for the
petitioner is that the respondent has been extended the premium of
pre-arrest bail which is a rare commodity and it has to be extended
sparingly. Perusal of the record reveals that the injury ascribed to
the respondent falls within the purview of Section 33 7A(iv) PPC
which entails punishment upto 10 years, as such it falls within the
prohibitory clause of Section 497 Cr.P. C. The doctor who examined
the injured PWfound that there was no possibility of any fabrication
depending upon the report of the Radiologist. However, Medical
Board was constituted vide No.4 73/DSMB/ Y .No. 09/2020/DHQ
Hospital, Rawalpindi dated 01.02.2021. The said Medical Board
was constituted in pursuance of a notification issued by the
Government of Punjab bearing No.SO(H&D)6-1190 dated
12.02.1990. The said notification was circulated to all District
Magistrates in the Province. In continuation of the above said
notification, another notification was issued bearing No. SO(H&D)5-
5/2 002 was also issued. According to the said notification, a "Three
Tier Structure" for the conduction of medico legal work has been
established, which reads as under:-
CrLP.No.577 of 2021
-: 3
"a) FIRST TIER
The initial medico legal examination shall be carried out by
the Medical Officers/Women Medical Officers at the Rural
Health Centres, Tehsil Headquarters Hospitals, District
Headquarters Hospitals and at Teaching Hospitals.
b) SECOND TIER
The District Standing Medical Boards, comprising the
following, shall act as first appellate authority in all the 34
districts of Punjab:
Medical Superintendent, DHQ Hospital Chairman
District Officer Health
Member
Surgeon
Member
These Boards will conduct re-examination if the decision of
the first medico legal examiner is challenged and also for
examination of alleged cases of Police torture. For District
Lahore District Standing Medical Board will be established at
Government Mian Muhammad Munshi, DHQ Hospital-I.
C) THIRD TIER
The role of Surgeon Medico legal, the Punjab shall only be
Appellate and Supervisory. He shall be the Chairman of
Provincial Standing Medical Board, which shall be the final
appellate authority against the decisions of District Standing
Medical Boards. Other Members of the Provincial Standing
Medical Board (PSMB) will be the Associate/Assistant
Professor Forensic Medicine of the Regional Medical College
and the Medical Superintendent of one of the attached
Teaching Hospital. The Board can co-opt any other member
when required."
The hierarchy of the medical examination as notified by the Health
Department clearly reflects that against the opinion of the initial
medical officer, the Medical Board will be constituted. Prior to the
constitution of the said Medical Board, a judicial order has to be
passed by the magisterial Court. According to the Medical Board, as
mentioned above, the injured PW was re-examined by four doctors
including Medical Superintendent, fully equipped with knowledge
and expertise and also better in experience than the earlier expert
who examined the injured PW soon after the occurrence. The
argument of the learned counsel by relying upon the judgment
Muhammad B/az Vs. The State and another (2021 SCMR 387) that
preference has to be given to the earlier examination because of the
reason that medical officer being the first expert to examine the
injury, his finding has to be preferred over the Medical Board. We
respectfully differ with the finding because of the reason that the
expert's opinion dependents upon so many factors including,
physical examination, qualification, experience and finally collective
(JrLYJVO.b(t' of 2021
-: 4
wisdom of the members of the Board. In a similar situation, in the
judgment reported as Hussain Vs. The State (1968 P Cr. L J 167)
this Court laid down the following law:-
"The High Court has preferred the evidence of
Dr. Aftab Ahmad in view of his higher
qualifications, particularly, since he too had
examined the wounds through a magnifying
glass and did not find the two injuries, with
which we are now concerned, to be either clean
cut or sharp-edged injuries. The possibility of an
error being made by the doctor of the Rural
Dispensary as to the nature of the injuries
cannot be ruled out, for, it is no unlikely for an
injury caused by a blunt weapon on a bony
prominence to appear as a clean cut wound to
an inexperienced person who has not acquired
sufficient skill in carrying out postmortem
examination. In the circumstances, we are
unable to accept the contention of the learned
counsel that the opinion of the doctor at the
Rural Dispensary was wrongly not preferred
over that of the doctor who performed the post-
mortem examination by the High Court. The
post-mortem, it is true, was held on the 25th
September 1964, at 7 a. m. but this was not
such a long period after as to completely alter
the nature of the injury and transform an
incised wound into a contused wound."
Otherwise, logically speaking, if the argument of the learned counsel
that the opinion of the first medical officer has to be given
precedence over the other, it does not appeal to reason because the
hierarchy of the system will fall to ground. It is not out of context to
express that hierarchy ofjudicial system starts from the court offirst
instance upto the Supreme Court. The findings of the highest court
has to prevail over the others, and even are binding under Article
189 of the Constitution. If the finding of the hierarchy of first
instance is to be given precedence, that would frustrate the whole
system. We have minutely observed the report of the Medical Board
which is available at page (17) of the paper-book. In the report of the
Medical Board, which comprised of four senior doctors having
superior qualification and experience, it has been observed that
"after having gone through examination the Board is of unanimous
opinion that regarding injury No. 1, the possibility of fabrication
cannot be ruled out". It is established law that when there is conflict
LrLPIVO.Sff of 2021
-: 5 :-
in opinions of the medical experts, the expert having better
qualification, insight, experience, and more particularly the joint
consensus of the members richly equipped has more weightage,
hence it has to be given precedence over the first examination
conducted by a junior doctor, especially when members of Board
while examining in the Board are four in number, whereas the first
doctor who examined the injury at the first instance was only a
single member assigned the duty to examine the injured person.
5. For what has been discussed above, we do not find any
merit in this petition which is accordingly dismissed and leave is
refused.
Islamabad, the
11 II%Jovember, 2021
A pproved for reporting
Waqas Naseer/ *
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mazhar Alam Khan Miankhel
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition Nos.591 of 2020
(Against the order dated 05.06.2020 in Cr.M.
(BA) 229-M/2020 passed by the Peshawar
High Court, Minhora Bench (Dar-ul-Qaza), Swat
Sheqab Muhammad
.…Petitioner(s)
Versus
The State and others
….Respondent(s)
For the Petitioner(s):
Mr. Abdul Latif Afridi, ASC
For the State:
Mr. Anis M. Shahzad, ASC
with Samiullah, SHO and Abdul Kamal, I.O.
For the Complainant: In person
Date of hearing: 07.08.2020.
ORDER
Qazi Muhammad Amin Ahmed, J.- Petitioner is amongst the
array of accused, blamed to have murderously assaulted the PWs at
9:10 a.m. on 10.4.2020 within the precincts of Police Station Himmat
Khan Shaheen Kalangi, District Malakand, in the backdrop of a dispute
over immovable property; fire shot attributed to the petitioner is confirmed
by a medico legal certificate.
2.
Heard.
3.
Arguments that ocular account stands contradicted by medical
evidence and in the absence of an independent witness from the public,
petitioner’s general participation, resulting into an injury on a non-vital part
of the body, particularly in the absence of repeated fire shot, squarely brings
his case within the remit of further probe, are not only beside the mark but
also cannot be attended without undertaking an in-depth analysis of the
prosecution case, an exercise forbidden by law at bail stage. In a daylight
affair, two persons sustained firearm injuries besides the one having endured
violence through blunt means and as such requires no public
Criminal Petition Nos.591 of 2020
2
support to drive home the charge; their statements supported by medical
examinations of even date, cumulatively bring petitioner’s case prima facie
within the mischief of section 324 of the Pakistan Penal Code, 1860, hit by
statutory prohibition, in view whereof, he cannot be released on bail in the
absence
of
any
consideration
within
the
purview
of
subsection
2 of section 497 of the Code ibid. Similarly, murderous assault as defined in
the section ibid draws no anatomical distinction between vital or non-vital
parts of human body. Once the triggered is pressed and the victim is
effectively targeted, “intention or knowledge” as contemplated by the section
ibid is manifested; the course of a bullet is not controlled or steered by
assailant’s choice nor can he claim any premium for a poor marksmanship.
Exercise of discretion by the High Court being well within the bounds of law
calls for no interference. Petition fails. Leave declined.
Judge
Judge
Islamabad, the
7th August, 2020
Not approved for reporting
Azmat/-
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mazhar Alam Khan Miankhel
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.594 of 2020
(Against the judgment dated 15.5.2020 passed by
the Peshawar High Court Peshawar in Crl. M./BA
No.1227-P/2020)
Jehanzab Khan
…Petitioner(s)
Versus
The State through A.G. KPK & others
…Respondent(s)
For the Petitioner(s):
Syed Iqbal Hassan Shah Gillani, ASC
with Syed Rifaqat Hussain Shah, AOR
For the State:
Mr. Arshad Hussain Yousafzai, ASC
with Momin, I.O.
For the Complainant:
Mr. Gohar Ali Khan, ASC
along with complainant.
Date of hearing:
09.07.2020.
ORDER
Qazi Muhammad Amin Ahmed, J.- Jahanzeb Khan, petitioner
herein, seeks admission to post arrest bail; he had allegedly issued two
bank cheques to Masood-ur-Rehman complainant in the sums of
Rs.20,00,000/-
and
Rs.97,00,000/-,
respectively,
bounced
upon
presentation; after arrest, he was released on bail by a learned Magistrate
vide order dated 27.12.2019 on the basis of an Iqrarnama, purporting
clearance of substantial portion of the default; the complainant disputed
genuineness of the instrument, in view whereof, a learned Additional
Sessions Judge cancelled the bail vide order dated 27.2.2020; motion to
secure bail failed in the High Court vide order dated 15.5.2020, vires
whereof, are being assailed herein.
2.
Heard.
3.
It would be inexpedient to attend factual divergence over the
impugned arrangement that appears to have paved petitioner’s way for his
release on bail at the magisterial forum through a negotiated settlement
though retracted subsequently, a circumstance resulting into cancellation
Criminal Petition No.594 of 2020
2
thereof; it appears to have weighed with the High Court to decline the
request as well.
Judicial discretion in bail matters is by now clearly contoured.
Having regards to the facts and circumstances of each case, the Court may
decline the request even in cases falling outside the remit of prohibition,
however, exercise of judicial authority cannot be abandoned to relegate in
subservience to the arrangements inter se the parties for the disposal of
bail petitions nor the corporal coercion can be allowed to extract swift
settlements or concessions in lieu of a promised freedom. Grant of bail
cannot be subjected to riders and conditions, if otherwise, a case stands
made out. In criminal dispensation of justice, the Court being an
independent adjudicator at all stages must religiously maintain its
neutrality without having any responsibility to the either side; it is more
important in cases involving recoveries and retrievals for the complainant,
designed to be effected through plenary modes and procedures other than
criminal prosecution. Deviation off the beaten path would throw normal
statutory arrangements to the wind, therefore, petitioner’s release and his
subsequent arrest on the basis of an abortive/disputed arrangement fail to
commend our approval.
4.
Adverting to the petitioner’s case, though there is a reference to
issuance of bank cheques and their failure on the bank counter,
nonetheless, details of financial obligation in satisfaction whereof the
instruments were purportedly issued is conspicuously missing in the
crime report. Substantial amounts notwithstanding, nonetheless, offence
complained is punishable with three years imprisonment or fine or with
both and as such does not attract the statutory bar. Petitioner’s
continuous detention is not likely to improve upon investigative process,
already concluded, thus, he cannot be held behind the bars as a strategy
for punishment. A case for petitioner’s release on bail stands made out.
Criminal petition is converted into appeal and allowed; the petitioner shall
be released on furnishing bonds in the sum of rupees one million with two
sureties each in the like amount to the satisfaction of the learned trial
Court/duty Magistrate.
Judge
Judge
Islamabad, the
9th July, 2020
Not approved for reporting
Azmat/-
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
MR. JUSTICE SYED HASAN AZHAR RIZVI
CRIMINAL PETITION NO. 596-L OF 2022
(Against the judgment dated 24.02.2022 passed by
the Lahore High Court, Lahore in Cr. Appeal No.
75142/2019)
Atta ul Mustafa
…Petitioner(s)
VERSUS
The State and another
…Respondent(s)
For the Petitioner(s):
Mr. Muhammad Sohail dar, ASC
(Via video link from Lahore)
For the State:
Mirza Abid Majeed, DPG Punjab
Date of Hearing:
11.08.2023
JUDGMENT
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Petitioner along with co-accused
was tried by the learned Additional Sessions Judge, Sialkot, pursuant to a
case registered vide FIR No. 269/2018 under Sections 376-II/337-J PPC at
Police Station Neikapura, Sialkot for committing zina with the
complainant. The learned Trial Court vide its judgment dated 19.11.2019
while acquitting the co-accused, convicted the under Section 376 PPC and
sentenced him to rigorous imprisonment for 10 years. He was also
directed to pay fine of Rs.50,000/- or in default whereof to further
undergo two months SI. Benefit of Section 382-B Cr.P.C. was also extended
to the petitioner. In appeal the learned High Court maintained the
conviction and sentences recorded by the learned Trial Court.
2.
The prosecution story as given in the impugned judgment
reads as under:-
“2.
As per story narrated by the complainant Mst. Azmat Sultan in her
written application EX.P.B, 8/10 months ago, accused Ata Mustafa came to
her house and requested her to resolve the dispute between his father and
mother as she deal with social welfare work. Then she went to the house of
Criminal Petition No. 596-L/2022
-: 2 :-
accused Ata-Ul-Mustafa on his request where she met three ladies namely
Samina, mother of accused Ata-Ul-Mustafa and Aisha and Khadija, sisters
of accused Ata-Ul-Mustafa who caused to drink her some intoxicated juice
and after that she became unconscious. Thereafter complainant was
shown a blue film which was captured by accused Ata-Ul-Mustafa after
administering her intoxicating liquid. Thereafter accused Ata-ul-Mustafa
kept on blackmailing and threatening the complainant, and used to obtain
money from her on different occasions. On 08.05.2018 at about 3/4:00
p.m, complainant called accused Ata-Ul-Mustafa on mobile phone and
requested him to delete her video and pictures as she is having a family. On
the same day at about 9:00 p.m, accused called the complainant outside
and with the assurance of deleting the video and pictures, took her to his
house on a Rickshaw and again administered intoxicating juice to her and
accused persons Ata-Ul-Mustafa and Habib committed rape with the
complainant one by one. When complainant gained conscious she found
herself in Civil Hospital, Sialkot. Then complainant narrated whole story to
her son and brother-in-law, and also informed the police for taking action.”
3.
After completion of the investigation, report under Section
173 Cr.P.C. was submitted before the Trial Court. The prosecution in order
to prove its case produced seven witnesses. 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 opt to appear
as his own witness on oath as provided under Section 340(2) Cr.P.C in
disproof of the allegations leveled against him. He also did not produce
any document in his defence.
4.
Learned counsel for the petitioner/convict contended that
the prosecution case is based on whims and surmises and it has to prove
its case without any shadow of doubt but it has miserably failed to do so.
Contends that there is no evidence to prove the guilt of the petitioner
except the solitary statement of the victim. Contends that the medical
evidence did not corroborate the stance of the victim. 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 has defended the
impugned judgment. He contended that there is no material contradiction
in the prosecution evidence and the prosecution has proved its case
Criminal Petition No. 596-L/2022
-: 3 :-
beyond any shadow of doubt by producing convincing evidence, therefore,
the petitioner does not deserve any leniency from this Court.
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.
In the present case, the complainant/victim Azmat Sultana,
who appeared as PW-5 is the star witness of the prosecution. In her
deposition, she reiterated her stance as narrated in the crime report and
alleged the petitioner and his co-accused to have committed rape with
her. By now it is well settled that the testimony of a victim in cases of
sexual offences is vital and unless there are compelling reasons which
necessitate looking for corroboration of a statement, the courts should
find no difficulty to solely rely on the testimony of the victim of a sexual
assault to convict the accused. However, the strict condition for this is that
the same shall reflect that it is independent, unbiased and straightforward
to establish the accusation against the accused and if the court finds it
difficult to accept victim’s version, it may seek corroboration from some
evidence which lends assurance to her version. In the present case, we
have noted that the victim Mst. Azmat Sultana was 49 years of age while
the petitioner was a young lad of 20 years old at the time of commission of
the alleged offence. Although it is not impossible that a twenty years old
boy cannot commit zina with such an older woman but the story told by
the victim is not plausible. According to her, the petitioner’s mother and
his two sisters gave her some intoxicating drink, which made her
unconscious and during this period, the petitioner and his friend
committed rape with her. It is generally seen in our society that no matter
how morally bad one is, he cannot do such kind of act in front of his
mother and sisters. On our specific query, learned Law Officer admitted
that the story narrated by the victim does not appeal to reason to the
mind of a prudent man. In such circumstances, this Court is duty bound to
weigh the other materials and evidence on record to come to the
conclusion on guilt or otherwise of the petitioner. The victim was
examined by Dr. Ayesha Aman (PW-1) and as she was admittedly a
Criminal Petition No. 596-L/2022
-: 4 :-
married lady, therefore, medico legal report showing her hymen to be old
ruptured was inconsequential. The blood sample of the victim was taken
and sent to Punjab Forensic Science Laboratory for forensic toxicology and
according to the Forensic Toxicology Analysis Report, “Alprazolam” was
detected in her blood. Alprazolam is used to treat anxiety and panic
disorder. The same is in a class of medications called ‘benzodiazepines’
and it works by decreasing abnormal excitement in the brain. It seems the
victim was a patient of depression and she had some mental problems.
The victim had leveled a specific allegation of intoxicating material being
administered to her but neither anything containing intoxicating material
was recovered nor any intoxicating material was found in her blood in the
medico legal report. A bare perusal of record reflects that the victim had
lodged a similar kind of case against another person but the same ended in
compromise later on. This conduct of the victim adversely reflects on her
credibility and does not require a flattering commentary. There is no
denial to this fact that DNA test report revealed that possibility cannot be
ruled out that the petitioner is the contributor of the semen detected on
the vaginal swabs of the victim. It shows that the DNA report is not
conclusive and certain about the guilt of the petitioner. The victim had
leveled allegation of rape against two persons but according to the report
of PFSA the co-accused of the petitioner was eliminated as being the
contributor of male DNA. This means that whatever the victim said was
not entirely true. Even otherwise, the DNA report cannot be treated as
primary evidence and can only be relied upon for the purposes of
corroboration and as stated above the evidence of the victim is not of such
character, which can solely be relied upon to sustain conviction of the
petitioner. When all the above-narrated circumstances are juxtaposed i.e.
the implausible stance of the victim, her lodging of similar kind of case
against another person and then patching up the matter after receiving
hefty amount and the dubious DNA test report, it makes the prosecution
case not free from doubt. These are the dents, which are so grave and
sensational that they are squarely hampering the authenticity of the
prosecution case. Therefore, it can safely be concluded that the
prosecution has miserably failed to substantiate its case.
Criminal Petition No. 596-L/2022
-: 5 :-
8.
Mere heinousness of the offence if not proved to the hilt is
not a ground to punish an accused. It is 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 to the right of benefit of
the doubt. It is a well settled principle of law that 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) and Ayub Masih v. The State
(PLD 2002 SC 1048) and Abdul Jabbar vs. State (2019 SCMR 129). 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. However, as discussed above, in the present case the
prosecution has failed to prove its case beyond any reasonable shadow of
doubt.
9.
For what has been discussed above, we convert this petition
into appeal, allow it and set aside the impugned judgment. The petitioner
is acquitted of the charge. He shall be released from jail unless
detained/required in any other case. The above are the detailed reasons of
our short order of even date.
JUDGE
JUDGE
Islamabad, the
11th of August, 2023
Approved For Reporting
Khurram
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
Present:
MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL
MR. JUSTICE QAZI MUHAMMAD AMIN AHMED
Criminal Petition No.6-P of 2015
(Against the judgment dated 10.12.2014 passed by the
Peshawar High Court, Mingora Bench (Dar ul Qaza) Swat
in Cr. A. No.2-m/2013)
State through A.G. KP, Peshawar
…Petitioner
Versus
Hakim Zada, etc.
..Respondent
For the Petitioner(s):
Malik Akhtar Hussain Awan, Addl. A.G. KP
For the Respondent(s): N.R.
Date of hearing:
8.7.2021
ORDER
Qazi Muhammad Amin Ahmed, J-. Respondent was tried by
a learned Additional Sessions Judge at Matta, Swat for committing Qatl-i-
Amd of Mst. Rekhma, no other than his better half; he himself reported the
incident to the police on 28.6.2012, alleging suicide, turned out as homicide
during investigation; upon indictment, he was sentenced to imprisonment
for life vide judgment dated 13.12.2012, however, a Division Bench of
Peshawar High Court, Mingora Bench considering the death as suicidal
acquitted him from the charge vide impugned judgment dated 10.12.2014,
vires whereof, are being assailed, primarily, on the ground that autopsy
report conclusively ruled out possibility of suicide as the medical officer
noted a complete scar, without obliquity, around the neck, unambiguously
suggesting manual constriction of the neck with a ligature, a circumstance
that escaped notice by the High Court and, thus, clamours for explanation
from the respondent with whom she spent her last moments under the
same roof. Leave is granted to consider, inter alia, the above contention with
Cr.P.6-P/2015
2
a view to secure the ends of justice. Send for the respondents 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 by the Station House Officer, within a fortnight.
Judge
Judge
Peshawar,
8th July, 2021
Azmat/-
‘Not approved for reporting’
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
MR. JUSTICE UMAR ATA BANDIAL
MR. JUSTICE AMIN- UD-DIN KHAN
MR. JUSTICE SAY Y ED MAZAHAR ALl AKBAR NAQVI
CfA)
CRIMINAL PETITION NO. 601-L OF 2021
(Against the order dated 15.07.2020 of the
Lahore High Court, Lahore passed in
Criminal Misc. No. 27091-B/2020)
Zafar Iqbal
Petitioner(s)
Versus
The State through Prosecutor General Punjab and another
.Respondent(s)
For the Petitioner:
Mr. Akhtar Nawaz Raja, ASC
For the State: Mr. Muhammad Jaffar, Addl.P. U.
For the Complainant: Mr. Sarfraz Khan Gondal, ASC
Date of Hearing: 18.11.2 02 1
r
ORDER
SAYYED MAZAHA4R ALl AKBA.R NAQVI, J.- This petition is barred
by 248 days. In normal circumstances the reasons assigned in the
application for condonation of delay are not taken into consideration,
but keeping in view the facts and circumstance of this particular
case, we, in the interest of safe administration of criminal justice,
condone the delay of 248 days in filing the petition.
2. 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. 07.2020 passed by the learned Single
Judge of the Lahore High Court, Lahore with a prayer to grant post-
arrest bail in case registered vide FIR No. 188 dated 08.07.2019
under Sections 30213411471109 PPC at Police Station Mela, District
Sargodha in the interest of safe administration of criminal justice.
I
I
CRIMINAL PETIT!ON NO. 601-L 0P2021
-. 2
3.
As per the contents of the crime report, the allegation
against the petitioner is that he along with co-accused inflicted sota
blows on the person of Azhar Iqbal deceased whereas the specific
allegation against the petitioner is that he gave sota blow which
landed on the left eye of deceased which was contributory in nature
which was result of his death.
4.
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 allegation against the petitioner that he caused injury to the
deceased is not substantiated from any material which could be
made basis for declining prayer of the petitioner. Contends that the
occurrence has taken place at the odd hours of the night and the
presence of the prosecution witnesses at that particular time does
not appeal to reason. Contends that during the course of
investigation, it transpired that the deceased had entered into the
house of the petitioner with the intent to commit rape with the young
daughter of the petitioner aged about 15116 years. Contends that
though the petitioner is found guilty during the course of
investigation but at the same time trespassing the house of a law
abiding citizen warrants reactionary response which ultimately
proved fatal. Contends that according to the medical report, the
cause of death is pulmonic failure and as such the petitioner is
entitled for the concession of bail as the case of the petitioner
squarely falls within the ambit of Section 497(2) Cr.P. C.
5.
On the other hand, it has been contended by the
learned Law Officer, assisted by the learned counsel for
complainant, that the petitioner is nominated in the crime report. He
is specifically ascribed injury No.1 which proved fatal towards the
death. Contends that six prosecution witnesses have been recorded
and as such the petitioner is not entitled for the concession of bail.
Learned Law Officer frankly conceded that during the course of
investigation, the finding of the Investigating Officer is that the
deceased has entered into the house of the petitioner in the midnight
S
I
C
CRIMINAL PETITION NO. 601-i OF 2023
-:3:-
with intent to commit rape with the daughter of the petitioner which
act was ultimately retaliated causing death of the deceased.
6. We have heard the learned counsel for the parties and
gone through the record.
It is salutary principle of law that each criminal case
has its own facts and circumstances and has to be decided
according to the peculiar facts surfaced on the record. There is no
denial to this fact that according to the contents of the crime report,
the petitioner is stated to be armed with sota who gave injury on the
vital part of the body of the deceased which was seen by the
prosecution witnesses. The said injury was subsequently found
contributory, however, during the course of investigation, the
contents of the crime report were found contradicted and entirely
different story was surfaced on the record. The Investigating Officer
gave a definite finding of fact that the deceased Azhar Iqbal had
illicit intimacy with the daughter of the petitioner and he on that
occasion with an intent to fulfill his lust trespassed into the house of
the petitioner, where he was overseen by the male members of the
family resulting into torture which proved fatal. There are certain
very specific reasons to entertain the petition in hand. It is difficult to
digest that the prosecution witnesses, mentioned in the crime report,
were actually present over there at the odd hours of the night to
observe the occurrence as given in the crime report. Further whether
at that odd hour of the night, the attempt of the deceased to trespass
in the house was bona fide at his part which ultimately resulted into
his death. All these queries when juxtaposed with the liberty of a
person who was forced to indulge into the crime, if any, the latter is
more precious as per the dictates of justice. Otherwise in suchlike
cases, the analogy can be drawn from the statutory law prevalent in
United Kingdom called "Homicide Act, 1957" wherein if a crime is
committed due to mental or psychological compulsion, it squarely
falls within the ambit of diminished liability. It is a legal doctrine
that absolves an accused person of part of the liability for his
criminal act if he suffers from such abnormality of mind as to
substantially impair his responsibility in Committing or being a party
CRIMINAL PETITION NO. 601 -L OF 2021
-:4:-
to an alleged criminal act, which is committed under the impulses of
question of ghairat, the doctrine of diminished liability would be
squarely attracted providing mitigation/ defence to avail the same in
suchlike cases, otherwise in ordinary circumstances the
commencement of trial itself is a sufficient ground to decline the
prayer of the petitioner, but in the instant case there are sufficient
grounds to believe that it is a case of further inquiry entitling for the
concession of bail wherein Section 497(4) Cr.P. C. can be pressed into
to do complete justice which is attire of this Court.
7. For what has been discussed above, this petition is
converted into appeal, allowed and the impugned order is set aside.
The petitioner is admitted to bail subject to his furnishing bail bonds
in the sum of Rs.200,0001- with one surety in the li/ye amount to the
satisfaction of learned Trial Court.
Lahore, the
18 of November, 2021
Approved for reporting
Waqas Naseer/
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In the Supreme Court of Pakistan
(Appellate Jurisdiction)
Present:
Mr. Justice Anwar Zaheer Jamali, HCJ
Mr. Justice Ejaz Afzal Khan
Mr. Justice Mushir Alam
Criminal Petition No.604 of 2015.
(on appeal from judgment of Lahore High Court, Multan Bench,
dated 29.7.2015, passed in Crl. Misc No.4327-B/2015)
Nisar Ahmed
…Petitioner
Versus
The State, etc
… Respondents
For the petitioner:
Mr. Khadim Hussain Qaiser, ASC.
Syed Rifaqat Hussain Shah, AOR.
Respondents:
N.R.
Date of hearing:
08.9.2015
JUDGMENT
Anwar Zaheer Jamali, C.J.- Petitioner is one of the
nominated accused in crime No.324/2012, dated 08.12.2012, P.S
Shahkot, District Sahiwal, registered under sections 302, 324, 337-
A(i), 337-A(ii), 337-F(i), 337-F(iii), 148, 149 PPC with the allegations
that he alongwith nine other co-accused, while forming an unlawful
assembly, committed qatl-i-amd of Yasir Abbas and caused injuries to
three other persons. The petitioner was assigned specific role of
causing fatal injury to the deceased.
2.
The petitioner was arrested on 14.1.2013 and since then
he is stated to be in custody. The first bail application moved him
before the Lahore High Court, being criminal miscellaneous No.2148-B
Crl.P-604/2015.
2
of 2014, was dismissed on 04.6.2014; his second bail application,
being criminal miscellaneous No.1735-B/2015 was dismissed vide
order dated 15.5.2015 and the third bail application, being criminal
miscellaneous No.3819-B/2015, was dismissed as not pressed vide
order dated 29.6.2015. In this manner, as it appears from the case
record, criminal Misc. No.4327-B/2015 was the fourth bail
application, which was dismissed by the High Court through the
impugned order dated 29.7.2015.
3.
We have heard the arguments of learned ASC for the
petitioner. He has contended that the petitioner is entitled for grant
of bail, as compliance of the directions issued by the High Court in its
orders dated 04.6.2014 and 15.5.2015, regarding expeditious
disposal of the criminal case against the petitioner, has not been
made and further filing of direct complaint by respondent No.2 has
furnished a fresh ground to the petitioner to move another bail
application.
4.
We have scanned the material placed on record and are
unable to subscribe to such submissions of the learned ASC. Neither
non-compliance of the directions issued to the trial Court to conclude
the trial expeditiously or within some specified time can be
considered as valid ground for grant of bail to an accused, being alien
to the provisions of section 497, Cr.P.C, nor filing of direct complaint
will have any bearing as regards earlier bail refusing orders, which
have attained finality, unless some fresh ground could be shown by
Crl.P-604/2015.
3
the petitioner for consideration of his request for grant of bail afresh,
which is lacking in the present case.
5.
This being the position, leave is refused and this petition
is dismissed.
Islamabad,
08th September, 2015.
Not approved for reporting.
ﺖﻗاﺪﺻ
Judge
Judge
Judge
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mushir Alam
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.606 of 2020
(Against the judgment dated 15.05.2020 passed by
the Peshawar High Court Peshawar in Cr.M.BA.
No.1276-P/2020)
Dad Khan
…Petitioner(s)
Versus
The State
….Respondent(s)
For the Petitioner(s):
Ms. Neelam A. Khan, ASC
For the State:
Raja Inaam Ameen Minhas,
Special Prosecutor, ANF along with Shamim
Raza, SI
Date of hearing:
31.08.2020.
ORDER
Qazi Muhammad Amin Ahmed, J.- An Anti Narcotic Force
contingent, on a tip off, intercepted Rahem Taj accused in the departure
lounge of Bacha Khan International Airport, while boarding a Saudi Arabia
bound flight with a substantial quantity of Methamphetamine, a lethal
narcotic substance. As the investigation progressed, the petitioner was
taken on board as being part of the cartel behind the consignment; he had
allegedly booked a room in a local hotel where the accused, three in
number, stayed the night preceding the flight and it was on account of this
overnight stay that the investigating officer held him privy to the crime
alongside others.
2.
Heard.
3.
We have examined the available record that depicts the
petitioner to have booked a room in a local hotel wherein the three accused
statedly stayed together. The learned Law Officer for the Anti Narcotic Force
has not been able to point out any material to confirm presence of the
principal accused with the petitioner except for latter’s statement recorded
during custody nor there is any data available with the prosecution to
Criminal Petition No.606 of 2020
2
establish petitioner’s presence at or around the airport before departure of
the flight, therefore, for the present, petitioner’s culpability as an abettor,
aiding the crime in association with the principal offender, within the
contemplation of section 14 of the Control of Narcotic Substances Act, 1997
so as to attract the bar provided under section 51 thereof, warrants further
probe; a case for his release on bail stands made out. Criminal Petition
No.606 of 2020 is converted into appeal and allowed; petitioner/appellant
shall be released on bail on 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
31st August, 2020
Not approved for reporting
Azmat/-
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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.60 of 2017
(Against the judgment dated 20.12.2016 passed by
the Peshawar High Court Peshawar in Cr. A. No.562-
P/2015)
Inhaf Ullah
…Petitioner(s)
Versus
The State & another
…Respondent(s)
For the Petitioner(s):
Mr. Astaghfarullah, ASC
For the State:
Ms. Ayesha Tasneem, ASC
Date of hearing:
07.04.2021.
JUDGMENT
Qazi Muhammad Amin Ahmed, J.- Atique, 6/7, was
playing outside his house, located within the precincts of Police Station
Bhana Marri, Peshawar on 16.10.2014; at 4:00 p.m, he took a bottle of
water from his house to serve a passerby whereafter he vanished from the
scene; according to the prosecution, he was whisked away in an alto car;
the incident was reported same day by his brother Muhammad Aamir
(PW-3); he also informed his father who was in China on a business trip
and rushed back to join search for the child; after 3/4 days of the
occurrence, an unknown person delivered fruit in two shopping bags to
the complainant, purportedly sent by his father’s friend Tariq; the fruit
carried a chit bearing a cell phone number and a message about the
captivity of the child with the dispatcher. The complainant handed over
the chit to his father Umar Khan (PW-2). The family contacted the captors
on phone who demanded Rs.2 crore as ransom, finally settled as
Rs.800,000/-, paid at the designated place in lieu of abductee’s release on
22.10.2014.
As
the
investigation
progressed,
Inhafullah,
Shahid,
Musharaf Khan, Alif Khan, Shahzad Gul, Atlas alias Aslat and Asad Ullah
were taken on board as accused; Inhaafullah petitioner, in response to a
court question, was identified by Umar Khan (PW-2) as recipient of the
Criminal Petition No.60 of 2017
2
ransom. The learned trial Judge vide judgment dated 21.09.2015
proceeded to convict all the accused under section 365-A of the Pakistan
Penal Code, 1860 and sentenced them to imprisonment for life; on appeal,
the Peshawar High Court, barring the petitioner, acquitted all the accused
from the charge vide impugned judgment dated 20.12.2010, vires whereof,
are being assailed on a variety of grounds. It is argued that neither the
complainant nor his father named or identified the petitioner in their
examination-in-chief and it was in pursuance to a question prompted by
the Court that Umar Khan (PW-2) reluctantly pointed his finger upon the
petitioner, for the first time in the Court; according to the learned counsel,
there was no occasion for the learned Judge to put Court question to a
witness undergoing examination-in-chief to the detriment of the
petitioner; that a different vehicle other than the one used in the
occurrence was recovered, that too, upon the disclosure of a co-accused,
since acquitted, and, thus, mere recovery of ransom amount statedly
upon petitioner’s disclosure without any identification mark is hardly
sufficient to sustain the charge. Acquittal of six out of seven co-accused
brought the entire edifice to the ground, concluded the learned counsel.
The learned Law Officer has faithfully defended the impugned judgment.
2.
Heard. Record perused.
3.
Abduction of a small child for ransom is a most serious offence
and it is hard to expect that a family would come up with a fake script,
nonetheless, in the present case, we have noted glaring flaws and
discrepancies that cannot be possibly ignored on a perceptional paradigm.
According to the complainant, the incident had occurred on 16.10.2014
and reported same day in the absence of his father, present in China
looking after some trade assignment, however, according to the latter,
upon receipt of information, he rushed back and when the incident was
reported on 19.10.2014. The discrepancy may be viewed as human error
inasmuch as according to the record, the First Information Report was
recorded on 16.10.2014, nonetheless, arrival of a massage demanding
ransom through an unknown person categorically claiming to have been
dispatched by one Tariq without any reaction or response, in those testing
hours, fails to inspire confidence. Similarly, without intervention of police,
payment of ransom to the petitioner and immediate release of the child
are circumstances no less intriguing either. No test identification parade
was carried out to qualify the standard of proof within the contemplation
of Article 22 of the Qanun-e-Shahadat Order, 1984. Similarly, petitioner’s
identification, with handcuffs in the dock, through intervention of the
Criminal Petition No.60 of 2017
3
Presiding Judge fails to commend our approval. The Court bears no
responsibility either for the prosecution or the defence; it must maintain
its neutrality to decide a case on the strength of evidence alone,
essentially to be adduced by the prosecution itself to drive home the
charge. No doubt, the trial Court is vested with ample authority to put
questions to the witness, however, the power of this amplitude must be
exercised with caution and circumspection, solely in aid of justice without
disturbing equality in the scales; in the present case, incessant
interventions by the trial Judge has grievously undermined testimony of a
witness, otherwise mute and reticent on a fundamental detail of the case.
Acquittal of six out of seven accused, though assigned different roles,
nonetheless, equally blamed to have aided the crime, leaves nothing in the
field. It would be unsafe to maintain the conviction Criminal petition is
converted into appeal and allowed; impugned judgment is set aside; the
appellant is acquitted of the charge and shall be released forthwith, if not
required to be detained by law.
Judge
Judge
Judge
Islamabad, the
7th April, 2021
Not approved for reporting
Azmat/-
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mazhar Alam Khan Miankhel
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.610 of 2020
(Against the judgment dated 21.5.2020 passed by
the Lahore High Court Lahore in Crl. Misc.
No.20425-B/2020)
Muhammad Noman Munir
…Petitioner(s)
Versus
The State & another
…Respondent(s)
For the Petitioner(s):
Syed Qamar Hussain Sabzwari, ASC
For the Respondent(s):
N.R.
Date of hearing:
10.07.2020.
ORDER
Qazi Muhammad Amin Ahmed, J.- Surprised at 12:30 p.m. on
23.1.2020 by a contingent of Police Station Kotwali Sialkot, Muhammad
Noman Munir, petitioner herein, was found in possession of cannabis
weighed as 1380 grams with a lethal combination of 07 grams of heroin;
courts below declined his request for admission to bail.
Submissions at the bar range from absence of a witness from the
public to a quantity bordering slightly beyond the volume covered by
section 9 (c) of the Control of Narcotic Substances Act, 1997.
2.
Heard.
3.
1380 grams of cannabis with 07 grams of heroin squarely fall
within the mischief of the section ibid that attracts prohibition embodied in
section 51 of the Act ibid and as such the argument being presumptuous
is beside the mark. Insofar as non-association of a witness from the public
is concerned, people collected at the scene, despite request abstained to
assist the law and it is so mentioned in the crime report itself, a usual
conduct symptomatic of societal apathy towards civic responsibilities.
Criminal Petition No.610 of 2020
2
Even otherwise, the members of the contingent being functionaries of the
State are second to none in their status, with their acts statutorily
presumed, prima facie, as intra vires. Refusal by the Courts below being
well within the remit of law calls for no interference. Petition fails. Leave
declined.
Judge
Judge
Islamabad, the
10th July, 2020
Not approved for reporting
Azmat/-
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
MR. JUSTICE SYED HASAN AZHAR RIZVI
CRIMINAL PETITION NO. 611-L OF 2023
(On appeal against the order dated 07.06.2023 passed
by the Lahore High Court, Lahore in Crl. Misc. No.
35337-B/2023)
Abdul Rehman
… Petitioner
Versus
The State etc
… Respondents
For the Petitioner:
Mr. Zulfiqar Ali Dhuddi, ASC a/w petitioner
(Through video link from Lahore)
For the State:
Mirza Abid Majeed, DPG
Mr. Abdul Maalik, SI
Mr. Idrees Afzal, SHO
Date of Hearing:
11.08.2023
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 07.06.2023 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. 12/2023 dated 18.01.2023
under Sections 447/427/511/109/148/149 PPC (Sections 435 & 506 PPC
added subsequently) at Police Station Kakrali, District Gujrat, in the interest
of safe administration of criminal justice.
2.
Briefly stated the allegation against the petitioner is that he
along with co-accused plowed and destroyed the wheat crop of the
complainant and also set his millet crop on fire.
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 there is a delay of more than two
months in lodging the FIR for which no plausible explanation has been put forth
by the complainant. Contends that the land, which is the root cause of the
Criminal Petition No. 611-L/2023
2
occurrence, does not belong to the complainant and a civil litigation is
pending between the parties.
4.
On the other hand, learned Law Officer opposed the petition by
contending that the petitioner has specifically been nominated in the crime
report with a specific role, 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 plowed and destroyed the
wheat crop of the complainant and also set his millet crop on fire. However,
it is the stance of the petitioner that the land in question is owned and
possessed by him and a civil litigation regarding the same is also pending
before the court of competent jurisdiction. It seems that the primary dispute
between the parties is with regard to the ownership/possession of the land in
question. 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.
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. The crime report
was lodged after a delay of 62 days for which the complainant did not utter a
single word. In the crime report, only a general role has been ascribed to the
petitioner and his six co-accused. We have been informed that two co-
accused of the petitioner, who were specifically nominated in the crime
report, have been declared innocent during investigation. Even otherwise,
we have been informed by the learned Law Officer that all the seven accused
have been ascribed the role of jointly causing a loss of about Rs.100,000/- 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. 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
Criminal Petition No. 611-L/2023
3
overt act, the provision of Section 506 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. Similarly, the question of
applicability of Section 511 PPC, which is applied only where the prosecution
is not certain about the offences, would also be resolved by the learned Trial
Court. 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.
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 03.08.2023.
JUDGE
JUDGE
Islamabad, the
11th of August, 2023
Approved For Reporting
Khurram
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE SAYYED MAZAHAR ALl AKBAR NAQVI
MR. JUSTICE MUHAMMAD ALl MAZHAR
MR. JUSTICE SHAHID WAHEED
CRIMINAL PETITION NOs. 614 & 618 OF 2017
(On appeal against the judgment dated 3103.2017 passed by
the Lahore High Court, Rawalpindi Bench in Criminal Appeal
Nos. 228 & 28412012 and Murder Reference No, 43/2012)
(1) Muhammad Iqbal, (2) Maqsood Ahmed,
(3) Mehram Khan, (4) Muhammad Jaffar,
(5) Muhammad Shoaib, (6) Lal Khan and
(7) Mumtaz
Shafqat Hussain (complainant)
(In Cr.P. 614/2017)
(In Cr.P. 618/2017)
Petitioners
VERSUS
The State and another
(In Cr.P. 614/2011)
Muhammad Iqbal and others
(In Cr.P. 618/2017)
Respondents
For the Petitioners:
Mr. Basharatullah Khan, ASC
(In cr. p. 61412017)
Mr. Ansar Nawaz Mirza, ASC
(In Cr.P. 618/2017)
For the State: Mirza Muhammad Usman, DPG
For the State: Mr. Muhammad Jaffer, Addl. P.G.
Date of Hearing:
30.11.2022
JUDGMENT
SAYYED MAZAHAR All AKBAR NAQVI. J.- Petitioners along with two co-
accused were tried by the learned Sessions Judge, Chakwal, pursuant to a
case registered vide FIR No. 196 dated 29.07.2009 under Sections
302/324/148/149 PPC at Police Station Saddar, Talagang, District Chakwal for
committing murder of Muhammad Aslam and Altaf Hussain and for causing
injuries to lftikhar Ahmed, Ulfat Haider and Sher Ahmed.
2. After completion of investigation, a report under Section 173
Cr.P.C. was submitted before the Trial Court. The learned Trial Court seized of
CRIMINAL PETITION NOs. 614 & 618 OF 2011
2
the matter framed charge against nine accused under Sections
302/324/148/149 PPC. The learned Trial Court while framing the charge
specifically mentioned that all the accused while forming an unlawful
assembly in furtherance of their common object have committed the crime
wherein two persons lost their lives while three sustained injuries and, as
such, committed an offence falling under Section 149 PPC. In order to prove
its case, the prosecution produced as many as sixteen witnesses. On the
conclusion of the prosecution case, the accused persons got recorded their
statements under Section 342 Cr.P.C. wherein they denied the allegations
leveled against them. They did not opt to appear as witness under Section
340(2) Cr.P.0 to disprove the allegations. However, they produced some
documents in their defence. On conclusion of the trial, the learned Trial Court
vide its judgment dated 15.05.2012, while acquitting two co-accused Nawab
Khan and Mumtaz, convicted the petitioners as under:-
1)
Muhammad lgbal and Macisood Ahmed
u/s 302(b) PPC Sentenced to death along with compensation of
Rs.300,000/- payable to legal heirs of Haji
Muhammad Aslarn and Altaf Hussain, deceased,
recoverable as arrears of land revenue. In default
whereof, they shall suffer six months SI.
u/s 148 PPC
Sentenced to suffer 2 years RI each.
2)
Mehram Khan and Muhammad Jaffar
U/s 324 PPC
Sentenced to suffer three years RI.
U/s 148 PPC
Sentenced to suffer 2 years RI each.
Both sentences were ordered to run
concurrently with benefit of Section 382-B Cr.P.0
3)
Muhammad Shoaib, Lai Khan and Mumtaz
U/s 148 PPC
Sentenced to suffer 2 years RI.
They were also held entitled to the benefit of
Section 382-B Cr.PC.
3. The petitioners challenged their conviction by filing Criminal
Appeal No. 228/2012 before the learned Lahore High Court. The complainant
also filed Criminal Appeal No. 284/2012 challenging the acquittal of the two co-
CRIMINAL PETITION NOS. 614 & 618 OF 2017
3
accused and seeking enhancement of the sentence awarded to five co-accused.
The learned Trial Court also sent Murder Reference No. 43/2012 under Section
374 Cr.P.C. In appeal, the learned High Court while maintaining the conviction of
the petitioners Muhammad lqbal and Maqsood Ahmed under Section 302(b)
PPC, altered the sentence of death into imprisonment for life. The remaining
sentences to the extent of compensation awarded to them by the learned Trial
Court was maintained. All the sentences were ordered to run concurrently with
benefit of Section 382-8 Cr.P,C. So far as the remaining petitioners namely
Mehram Khan, Ghulam Jaffar (Muhammad Jaffar), Muhammad Shoaib, Lal Khan
and Mumtaz are concerned, their sentence was modified to the extent of the
sentence which they had already undergone subject to payment of fine of
Rs.50,000/- payable by each accused to the injured. Hence, these petitions
seeking leave to appeal.
4. During the course of proceedings before this Court, a query was
made to the learned counsel for the petitioners/convicts qua the legality of the
judgments rendered by the Trial Court as well as the High Court wherein the
Trial Court while taking into consideration all the facts and circumstances found
the accusation against the petitioners established through confidence inspiring
evidence and as such convicted them under Sections 302/324/148 PPC on the
basis of individual liability ascribed to them. It is astonishing aspect of the case
that despite of the fact that all the accused including the petitioners before us
were charged under Section 148/149 PPC but while deciding us the aspect of
'common object' was squarely ignored and the conviction and sentence was
recorded quite surprisingly on the basis of individual role. Similarly the Appellate
Court while deciding the appeal of the petitioners did not bother to pay
attention to the illegality committed by the Trial Court and dealt each accused
on the basis of individual liability.
S. This Court in a recent judgment reported as Bashir Ahmed Vs. The
State (2022 SCMR 1187) while elaborately discussing the penal provisions has
held as under:-
"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
CRIMINAL PERTION NOs. 614 & 618 OF 2017
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 Sections
148/149 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 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.0 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 o
common intention or common object but decides the us on the
basis of individual liability would be squarely in defiance of the
intent and spirit of law on the subject."
6. The above view was upheld by this Court in Muhammad Nawaz
vs. The State (PLO 2022 SC 523) and Jail Petition No. 344/2018 titled
'Muhammad Waheed Vs. The State'. A bare perusal of the afore-referred
judgment of this Court makes it abundantly clear that while dealing with cases
of qatl-i-amd as embodied under Section 300 PPC in chapter XVI of Pakistan
CRIMINAL PETITION NOS. 614 & 618 OF 2017
5
Penal Code, the Trial Court has to evaluate as to whether the act is committed in
furtherance of common intention/object or on the basis of individual liability to
press in the provision of Section 302(a)(b) or 302(c) PPC and it has to give a
definite finding qua the same. Any judgment which concludes that the
offence of qatl-i-amd under Section 302(b) PPC was committed in
furtherance of common intention or common object but the sentence is
inflicted on the basis of individual liability, the same would be squarely in
defiance of the intent and spirit of law on the subject. However, if the
Court comes to the conclusion that the elements of common intention
and common object have not been established, then each accused would
be dealt with according to their individual role and severity of allegations
and would be sentenced accordingly by the Court exercising its
discretionary powers.
7. Keeping in view the facts and circumstances narrated above,
we convert these petitions into appeals, allow the same and set aside the
judgments of both the courts below. The matter is remanded back to the
Trial Court to re-write the judgment on the basis of available evidence
after providing an opportunity of hearing to both the parties within a
period of one month from the date of receipt of certified copy of this
judgment. During the pendency of the us before the Trial Court,
petitioners would be treated as under trial prisoners.
Islamabad, the
30th of November, 2022
Approved For Reporting
IllIIIir.11i
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mazhar Alam Khan Miankhel
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.619 of 2020
(Against the judgment dated 17.2.2020 of the
Peshawar High Court, Peshawar passed in Bail
Petition No.56-P/2020)
Aqal Khan
.…Petitioner(s)
Versus
The State and another
….Respondent(s)
For the Petitioner(s):
Mr. Hussain Ali, ASC
For the State:
Mr. Anis M. Shahzad, ASC
Muhammad Ilyas, I.O.
For the Complainant:
Mr. Riazat ul Haq, ASC
Date of hearing:
03.08.2020.
ORDER
Qazi Muhammad Amin Ahmed, J.- Aqal
Khan,
petitioner
herein, allegedly accompanied Meeran Jan, co-accused, no other than his
real brother, attributed fatal shot to Maseet Khan deceased, at 9:00 a.m.
on 09.11.2019, within the remit of Police Station Bara in the backdrop of a
past feud; Courts below declined the request on his having been found in
the community of intention with the co-accused, still away from law. It is
alleged that the petitioner, after the incident, took away a pistol, carried by
the deceased and got it recovered after his arrest, a circumstance that
conclusively established his presence at the scene so as to stand
disentitled to the concession of bail, no overt act notwithstanding.
2.
Heard. Record perused.
3.
It would be less than expedient to comment upon the factual
aspects/merits of the case, however, what is evident from the record is
that during his, seemingly, unanticipated encounter with the deceased, the
Criminal Petition No.619 of 2020
2
later was singularly targeted by the co-accused; first information report
sans details of snatching of deceased’s gun by the petitioner and as such,
circumstances cumulatively hovering over the incident, squarely brings
petitioner’s case within the purview of sub-section 2 of Section 497 of the
Code of Criminal Procedure 1898; a case for his admission to bail stands
made out; he shall be so released upon furnishing bonds in the sum of
Rs.500,000/- with two sureties each in the like amount to the satisfaction
of the trial Court/duty Judge; delay in filing of petition is condoned which
is converted in to appeal and allowed.
Judge
Judge
Islamabad, the
3rd August, 2020
Not approved for reporting
Ghulam Raza/-
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
MR. JUSTICE JAMAL KHAN MANDOKHAIL
CRIMINAL PETITION NO. 62-L OF 2023
(On appeal against the order dated 18.01.2023 passed
by the Lahore High Court, Lahore in Crl. Misc. No.
70185-B/2022)
Muhammad Aziz @ Mana
… Petitioner
Versus
The State etc
… Respondents
For the Petitioner:
Mr. Muhammad Akhtar Rana, ASC
Mr. Tasneem Amin, AOR a/w petitioner in
person
(Via video link from Lahore)
For the State:
Mirza Abid Majeed, DPG
Mr. Nasir Abbas, DSP
Mr. Amir Ahmed, SI
Date of Hearing:
23.08.2023
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 18.01.2023 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. 914 dated 09.09.2022 under
Sections 381/411 PPC at Police Station Factory Area, District Faisalabad, in
the interest of safe administration of criminal justice.
2.
Briefly stated the prosecution story as narrated in the crime
report is that 16 co-accused of the petitioner used to work in the factory of
complainant wherein flags were used to be manufactured. The co-accused of
the petitioner used to steal the prepared and printed flags and sell the same
to the petitioner. The co-accused were caught red-handed by the
complainant and other witnesses and it was found that a loss of about two
and half crore has been caused to the complainant.
Criminal Petition No. 62-L/2023
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 allegations leveled against
the petitioner are false, frivolous, baseless, concocted and the prosecution
story is not worthy of credit. Contends that all the co-accused including the
principal accused have been granted post-arrest bail by the court of
competent jurisdiction, therefore, following the rule of consistency, the
petitioner also deserves the same treatment to be meted out.
4.
On the other hand, learned Law Officer opposed the petition by
contending that the petitioner has specifically been nominated in the crime
report with a specific role of causing huge loss to 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.
6.
As per the contents of the crime report, the co-accused of the
petitioner used to work in the factory of complainant. Allegedly, they used to
steal goods and sell the same to the petitioner. A bare perusal of the record
depicts that the entire fraudulent transaction took place in a span of more
than four years and no specific dates for commission of theft have been
given. The FIR was lodged with an inordinate delay of 13 days for which the
complainant did not utter a single word. The only allegation against the
petitioner is that he used to purchase the stolen articles from the co-accused.
Admittedly, he was not employee of the complainant, therefore, the
question of applicability of Section 381 PPC would be resolved by the learned
Trial Court. We have been informed that all the co-accused of the petitioner
have been granted post-arrest bail by the court of competent jurisdiction. In
these circumstances any order by this Court on any technical ground that the
consideration for pre-arrest bail and post-arrest bail are entirely on different
footing would be only limited upto the arrest of the petitioner 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
Criminal Petition No. 62-L/2023
3
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 maximum punishment provided under the statute for the offence under
Section 411 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. Liberty of a person is a precious right which cannot be taken away
without exceptional foundations. 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. Mere allegation of causing huge loss is no ground to decline bail
to an accused. 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
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. The petitioner is admitted
to pre-arrest 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
Islamabad, the
23rd of August, 2023
Approved For Reporting
Khurram
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mazhar Alam Khan Miankhel
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.622 of 2020
(Against the judgment dated 28.01.2020 passed by
the Islamabad High Court Islamabad in Crl. Misc.
No.19--B/2020)
Imran Abbas
…Petitioner(s)
Versus
The State & another
…Respondent(s)
For the Petitioner(s):
Ms. Bushra Qamar, ASC
Syed Rifaqat Hussain Shah, AOR
For the Respondent(s):
Mr. Niazullah Khan Niazi,
Advocate General, Islamabad Capital
Territory
M. Sarfraz, SSP with Abdul Jabbar, I.O.
Date of hearing:
10.07.2020.
ORDER
Qazi Muhammad Amin Ahmed, J.- Maria Mughal, deceased,
was done to death within the safety of her dwelling allegedly, by Imran
Abbas, petitioner herein, no other than her former husband; her younger
sister Ms. Talal Sahr witnessed the occurrence that occurred at 2:00 p.m.
on 15.8.2019; solitary fire shot in the skull has been blamed as cause of
death; upon petitioner’s disclosure, a .30 caliber pistol was recovered from
the petitioner on 31.8.2019. The petitioner moved Court of Session
Islamabad (West) for admission to bail on the basis of an affidavit
purportedly sworn by the complainant wherein she exonerated him from
the charge; it appears from the record that the complainant presented
herself before Mr. Basit Aleem, learned Addl. Sessions Judge Islamabad
(West) to affirm the contents of the affidavit; the learned Addl. Sessions
Judge, however, and wisely so, viewed the move as the one calculated to
subvert the prosecution evidence and declined the request. A learned
Judge-in-Chamber upheld the dismissal. The issue came up before us on
Criminal Petition No.622 of 2020
2
8.7.2020; surprised by a sudden somersault, that too, in a manner, too
crude to be viewed as plausible, we sent for the Superintendent of Police;
he is in attendance along with the Investigating Officer; the former states
that the complainant after the incident had sought refuge in a public
sanctuary (Dar-ul-Aman) whereafter she of own accord left for her village.
We are at a loss to understand as to what weighed with the complainant to
substitute “unknown dacoits” as the assassins of her sister through the
affidavit dated 03.10.2019 while she had unambiguously blamed her
former brother-in-law for the cold blooded incident through a written
application moved just as close as on 15.8.2019.
2.
Be that as it may and without prejudice to the petitioner’s right
for a fair trial to be settled, on the strength of evidence alone with all
statutory/procedural safeguards, we, in circumstances, consider it
expedient to direct the Inspector General of Police Islamabad Capital
Territory to ensure safe conduct throughout to Ms. Talal Sahr complainant
so as to enable her to appear before the Court to adduce her evidence
without let, hindrance or duress. It goes without saying that for effective
and meaningful administration of criminal justice, witness protection is a
sine qua non and as such a bounden responsibility is cast upon the State
to be discharged through its functionaries to safeguard vulnerable
witnesses in order to ensure that stream of justice runs pure and clean
with scales strictly held in balance. Learned trial Judge is directed to
proceed with the trial with all convenient dispatch to preferably conclude it
before the fall of October, 2020. Chief Commissioner Islamabad is directed
to depute a diligent and capable Law Officer to prosecute the State case;
he shall also consider the desirability of a trial in jail premises, if need be.
Compliance reports regarding steps taken be submitted for our perusal in
the chambers.
3.
Learned counsel for the petitioner, upon reconsideration, has
opted to withdraw the petition; dismissed as withdrawn.
Judge
Judge
Islamabad, the
10th July, 2020
Not approved for reporting
Azmat/-
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1
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٢٠١٧/ ٦٣٠ � ىرا�� �ا��
2
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ف� � � ل�� �� �� ��ا �ا�ا �ر� ىرا�� � ى�١٠٨٥
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۔ �او� جرد
٢۔ � سا � ل� � جا�ا � � �٣ ر�� �� ِ�ا� � � � � �ا زا�
� ى�وار �د ِ�ز �ا�� ىرا�� �ا٥٦١ ۔ �ا � � � � �اد ىرا�� ��
۔�� جر� � � � �او
٣۔ � � ل� �ا زا� � � سا٣ا�رد �ا � � ِ� و�ور�ا
justice)
of peace)
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ن�� روا ں�ا� ں�� �د �آ قد� �� وا �ا �ا روا ا� �� � نا�� � سا� � �
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3
�� � � ل� ح� سار وا � � �او ت�� �د روا ��/ � � �او ت��
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وا ��� � � ر� � � � سا ��ا � ٹر�� ر�� � �� � � زو� � تار�ار
نآ� � � � د� � �� �� � �د را� � � ا� ى�آ � � ِ�ز � � �د را�
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٦۔ �� � ء�و ��د � � ��ا ِ� ر�ا � �ز� ےر� (Ex-Officio
Justice of Peace)
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4
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� � � � �� ل� � � � � � ا� �� ل� � � � تد� ر�ا
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5
۔ب � �ا)�ا ( ىزا�ا �د �� م� �� �� � � � م� ��و �� ،
۔� �ور � � �� �ا� � سا � ر� � � �� �
۔ ۔� ےد دا�ا م� � �ا �� سا � �� ت� �ا
۔ �ا �� � رو� �� � م� � � � � ،� �� � �� � ن�
۔ ےد � � ت� �� ،�
٧۔ ا � � � ��ر وا �او �ا ظ�ا � ت�د �� �ر�ن �� � م�ا � � ��
۔�ر � �ا ِ� � � �ز� � �� �او � � ں�(Ex-Officio Justice of
Peace)
تار�ا � �� �ا� � � روا � � �� ��ا تار�ا ہر�� � �د � ��
۔� � � � ر� � � سا� ا� �ا�� �او � � � �ا� �ر �� � ےد �
� � � � �� ��� � ن�� ت� ٢٠١٦ � � ِ�ا� ٥٨١ 2016
PLD
(
SC 581)
�� � �� ہ�� �� � �� و � �� � � سا ا� � ہ� �� �
و ہ� �ور زا � ور � � �ا ۔�ر � �ا ِ� �(Ex-Officio Justice of
Peace)
�د ِ�ز تار�ا � ٢٢روا �ا ۔ ٢٢ � ہ� �� � � ىرا�� �� ب ۔
� � د� و دو� � نا � � ل�� �� � ںو� � ۔� � � �
٨۔ �� رود � ��ا � �� �� � ��اِ� فر� � دو� ��ا � � �
�ا� روا �� � ے�� �� � �� � تار�ا� � � �� � � �و � ��
�ا ا� � �� � � ت�وا � � �� جرد ٹر�ر � �ا� ىزا�ا �د �� ك�
ں�� �ِ�ا� � � ر�ا �ار �آ ہ� ہو روا � � �� دا� � دا�ا ع�ر � ��
� ا� � �� � نا�وت� �� � �� �� �ا ِ� � سا روا �� د� � ��
�� �ا � � � ںور� � رو ا�� ر� � �� ر�ا � و � � �د م�ا � �ا�
�ا � �ر ر�ا � ر� �د تار��� روا � � � � ے�ز � تار�ا ��ا � ر�
�آ��ا روا � � تار�ا � ��ا ۔� � � ن�� � � � نا � � �د ���
� �� � � سا ا� � ��ا � � �ا� � ر� � تار�ا ِ�� � �ر ف� �ا
٢٠١٧/ ٦٣٠ � ىرا�� �ا��
6
� � �� تار�ا � �ا� س� � �� ِ�ا� ف� � �� ىر� � ��� سا روا
�د ِ�ز � � �� � �� � �� � ن�� � � �٤٣٩ تار�ا � ىرا�� ��
�� ِ�ا� �� � � ء� � ہ�و سا ا� � � ب�را � � ��� � � ل�ا � �
۔� � �� � � ���
٩۔ �� �وا � � �ا ِ� ہ�ر وا � � � � (Ex-Officio Justice of
Peace)
� ر� � تار�ا � �د � نا روا �� � و � � � � سار وا � � �� ��ا
� � � ر��ا� � � ر�ا �ا� � � ر�ا � � � روا � � �د � �رد � �د م�ا � تا
ت�او � ع� دو� � ر� �و� �ا� �� روا ىرا�� ا� � � � �� � � ِ�ز
� � سا روا �� � � ت�� ��� �ا ِ� �� (Justice of Peace)
ہ�اد �
� ر�ا� � روا � � تار�ا �ا � سا ا� �آ � � ر� ��� سا روا � � ل�ا
�ا� � � زو� � � � تار�ا روا �ا ِ� ��� � ر�اداد � زو� � � ن�� ��
� ��� �د را� � �� ِ�ا� � � � � د� � � تر� � � � سا � ظ� سا روا
� ��� روا �� � � ��ا � � ن� � ف�ا م� � سا �� � � � � ہ�اِ
آ � � ل� �ا � روا �� �ا � � ہ� �� � � ت�� � � � تار�ا �
� �� ى�ا�ا � ف�ا م� � � � �ِ � ت� � ں�ود ا� � � ��
ِ� �ا (Justice of Peace)
��� � � � � �� ِ�ا� روا � ار� � ��
ر� � �ا روا � �� �د � � �ا � � � ر� �ا�� � �� ا� ��اى � ےد
� �� � در روا خ� � ت� � ں�ود۔
١٠ �ا ِ�(Justice of Peace)
�
تار�ا ��ا دو� ہو � � �� ىد تا�
�ا�رد � ہر ر�ا � / �اد �ا�� ہد� ت�د �ز ٢٢ روا �ا ۔ ٢٢ ب ۔ ��
٢٠١٧/ ٦٣٠ � ىرا�� �ا��
7
�� ِ�ز روا � ِ�ز � � �ا� �� روا ىرا�� � ے� � � � زا � ىرا��
� �� ۔� �� � ل� � ت�� ىد �� د� � � �� � � �� �� �ا ، �� � �
��� خر � ر� �� � ف�ا ں� روا � � � �� �� ىز� �� � ڑ� � � ناو�
���روا ں� ں�ا� روا �� �� � � �� � ا� � � �� ��و روا �و � �
�ا � ِ�� �� �� ا� � � � � �ور � � � �� ادا راد� � � سا � ہ�
را� � � � ہ� �ا ا� � � ف�ا) ٢٠،٠٠٠ ( ِ� ہو � � � �� � �� ��� �ور
�ا(Justice of Peace)
�� �� و�ور � �� روا � � ادا �ا ِ�(Justice of
Peace)
سا � � �اور� � �ا�رد ۔ےد � �
۔� �� روا �� � ھ� � �ا� �
�
�
�آ م�اد٣٠��ا ،٢٠١٧ء )� � ��ا ر�(
�را �
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mushir Alam
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.630 of 2020
(Against the order dated 4.6.2020 passed by the Lahore
High Court Multan Bench Multan in Crl. Misc. No.1598-
B/2020)
Muhammad Mumtaz Ahmad & others
…Petitioner(s)
Versus
The State & another
….Respondent(s)
For the Petitioner(s):
Syed Rifaqat Hussain Shah, AOR
with petitioners in person
For the State:
Mr. M. Sarwar Sidhu,
Additional Prosecutor General Punjab
with Taj Muhammad, SI.
For the Complainant:
Mr. Zulfiqar Khalid Maluka, ASC
Date of hearing:
24.08.2020.
ORDER
Qazi Muhammad Amin Ahmed, J.- Petitioners are blamed to
have caused injuries, after forming an unlawful assembly, to the witnesses
inside the safety of complainant’s home located within the remit of Police
Station Miranpur District Vehari; they agitated a cross version that failed
with the police. A learned Additional Sessions Judge at Mailsi primarily
declined their request for bail in anticipation to their arrest on the ground
that after the assault they repeated violence for which two different First
Information Reports dated 05.02.2020 and 09.02.2020 were lodged during
the period they were on ad interim bails; they did not display a better
conduct in the High Court either; they were admitted to ad interim
pre-arrest bail by a learned Judge-in-Chamber on 20.3.2020 on the
condition of bonds, however, till the time of final hearing that took place as
late as on 4.6.2020 they were found to have failed to file the bonds as
directed by the Court.
2.
Heard.
Criminal Petition No.630 of 2020
2
3.
It is a run of the mill criminal case wherein two sides
confronted each other over an incident of eve-teasing; it graduated into a
situation wherein both sides appeared to have sustained injuries and
despite considerable lapse of time in the face of petitioners’ failure in their
cross-version, they remained away from law by invoking a remedy which
has judicially been devised to protect the innocent from the rigors of abuse
of process of law initiated for purposes other than noble; the protection
cannot be granted to stifle the investigative process and as such
petitioners’ case does not fall in that category, particularly in view of their
conduct before the Courts below, found by us as far from being enviable.
Petition fails. Leave declined.
Judge
Judge
Islamabad, the
24th August, 2020
Not approved for reporting
Azmat/-
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE MAQBOOL BAQAR
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
CRIMINAL PETITION NO. 632 OF 2021
(On appeal against the order dated 24.05.2021 passed
by the Peshawar High Court, Peshawar in Crl.MBA No.
1148-P/2021)
Abdul Majid Afridi
… Petitioner
VERSUS
The State and Abdul Latif Afridi
… Respondents
For the Petitioner:
Mr. Sher Afzal Khan Marwat, ASC
Mr. Mehmood Ahmed Sheikh, AOR
For the State:
Mr. Anis Muhammad Shahzad, Addl. P.G
Mr. Namir, I.O
Date of Hearing:
08.11.2021
ORDER
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- The petitioner through
the instant petition under Article 185(3) of the Constitution of Islamic
Republic of Pakistan, 1973, sought cancellation of bail granted to the
respondent vide FIR No. 229/2021 dated 04.04.2021 U/s 302 /
324 / 148 / 149 / 109 / 427 / 353 / 34 PPC read with Section 7 of
the Anti Terrorism Act, 1997 registered with Police Station Lahor,
District Swabi by the Peshawar High Court vide order dated
24.05.2021 in the interest of safe administration of criminal justice.
2.
As per allegations contained in the FIR, it is alleged that
the said occurrence in which four persons lost their lives including
one pregnant lady of advanced stage along with two other, who
sustained injuries, was committed on the instigation/abetment of
respondent. After the registration of the aforesaid crime report
respondent filed a direct petition seeking anticipatory bail before the
High Court which was confirmed vide order dated 24.05.2021, the
said order is impugned before us. Hence the instant petition.
3.
At the very outset, it has been argued by the learned
counsel for the petitioner that there is no denial to this fact that the
Criminal Petition No. 632/2021
2
respondent and the complainant party were inimical towards each
other with previous enmity of murders. Contends that the main
assailants in the aforesaid crime report are closely related to the
respondent, hence, there is very strong reason to believe that the
instant occurrence has taken place at the behest of the respondent.
Contends that the accused persons hatched the conspiracy in the
‘hujra’ of the respondent, which was subsequently materialized
resulting into death of four persons including one woman, who was
six months pregnant. Contends that one of the deceased was
District & Sessions Judge; otherwise it has taken place in a
populated area, therefore, it stirred the public peace and security
due to its gravity, hence, the relief extended by the High Court is
uncalled for. Contends that the respondent had directly filed petition
before the High Court to get the relief of pre-arrest bail, which is
against normal practice and even during the pendency of the
petition, the respondent was burdened with an amount of
Rs.20,000/- to be deposited to a charitable foundation on the basis
of a mis-statement, therefore, this aspect in “isolation” is sufficient to
accede to the prayer of the petitioner before this Court. Contends
that the respondent remained the President of the Bar and due to
office he enjoyed, extraordinary relief of pre-arrest bail was
extended to him. Lastly it is argued that in all eventualities, it is a fit
case for interference by this Court in the interest of justice.
4.
On the other hand, the learned Law Officer has
defended the impugned order by contending that there is nothing on
record, which could suggest that the respondent has misused the
concession of bail in any manner, therefore, in absence of any
material, which is essential for cancellation of bail, the impugned
order may be upheld.
5.
We have heard learned counsel for the parties and have
gone through the record with their able assistance.
Prior to touching upon the merits of the case, we deem it
appropriate to discuss the preliminary objection raised by the
learned counsel for the petitioner that the respondent had filed a
direct petition seeking pre-arrest bail before the High Court without
exhausting the remedy of approaching the Court of first instance.
Criminal Petition No. 632/2021
3
There is no denial to this fact that the jurisdiction of the Sessions
Court and the High Court is concurrent in nature. The learned High
Court while adjudicating the matter has given cogent reasons
especially when it is admitted that one of the deceased was himself
a District & Sessions Judge, therefore, any order if would have been
passed either way that would have been considered prejudicial
because of the reason that the deceased was member of the district
judiciary. Even otherwise, the respondent has not availed one
remedy, which was available to him while agitating his grievance
before the High Court, therefore, he lost one opportunity causing no
prejudice to complainant party.
6.
On merits, we deem it of prime consideration to evaluate
the material available on the record to connect the respondent with
the accusation as alleged against him. We have perused the crime
report with naked eye and found that the complainant while lodging
crime report has not mentioned specific date, time and place where
the conspiracy was hatched. Even name and number of witnesses
to that extent is not incorporated while lodging the FIR. During the
course of arguments, it was informed that one of the assailants, who
was taken into custody, made a confessional statement under
Section 164 Cr.P.C. In his statement, he has admitted the instant
occurrence and has pointed out towards the respondent being head
of the family to instigate the others to commit the aforesaid
occurrence. Perusal of the statement clearly reflects that an incident
had taken place way back in the month of April, 2020 when ‘jirga’
was convened between the families to settle down the blood feud
between the parties, however, it ended in exchange of hot words
where the respondent had extended threats of dire consequences to
one of the deceased Aftab Afridi. The confessional statement is
reproduced for its perusal:-
Criminal Petition No. 632/2021
4
7.
The statement of one accused in “isolation” does not
advance the prosecution case except at the most it is a statement of
a co-accused. We have noticed that there is nothing on the record
where the prosecution has advanced its case qua conspiracy in any
manner except the bald allegation which is incorporated in the FIR
without citing any witness of the said aspect of the case. The
statement of one of the assailants recorded under Section 164
Cr.P.C in all fairness is a statement of co-accused, hence, no
deviation can be made against the established principle of law that
statement of one accused cannot be used against the other in
absence of any attending material produced by the prosecution.
Reliance is placed on Nouman Khan Vs. The State (2020 SCMR 666)
& Muhammad Sarfraz Ansari Vs. The State (PLD 2021 SC 738).
Perusal of Section 107 PPC reveals that three ingredients are
essential to dub 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. All these
three ingredients of Section 107 PPC are prima facie missing from
the record. We do not want to give any finding in this regard
because it can prejudice the case of either of the party. It is now
established without any hesitation that considerations for the grant
of bail and cancellation whereof are entirely on different footings.
Generally speaking, the Courts are reluctant to interfere in the order
of grant of bail and even in cases where it is apparently found that
the bail granting order is not sustainable in the eyes of law, the
Courts restrain to interfere in such matters if it is found that there
was nothing to show that the accused has misused the concession
of bail. Reliance is placed on Shahid Arshad Vs. Muhammad Naqi
Butt (1976 SCMR 360). In a recent judgment reported as Samiullah
Vs. Laiq Zada (2020 SCMR 1115), which was further followed in
Criminal Petition Nos. 1459/2020, 1523/2020, 970 to 976/2021 &
Criminal Petition No. 1145-L of 2020, this Court has held that for the
purpose of cancellation of bail, following considerations are to be
satisfied:-
“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.
Criminal Petition No. 632/2021
5
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 with tends to establish guilt
of the accused.”
9.
When we confronted learned counsel for the petitioner
with the above-said guidelines, he could not point out on record as to
whether the respondent has violated any of the afore-referred
conditions, which could become basis for cancellation of bail granted
to him. The accumulative effect of the reasons given above is that the
order impugned before us is in accordance with law and learned
counsel for the petitioner has failed to justify that the High Court has
erred in deciding the matter, which by any stretch of imagination
could be termed as perverse, arbitrary and fanciful. During the
course of proceedings, the learned counsel for the petitioner brought
to the notice of this Court that the family of the deceased Judge
Aftab Afridi is being threatened through social media for dire
consequences and in this regard three complaints have been lodged
with Federal Investigating Agency. In this view of the matter, the
CCPO Peshawar is directed to provide adequate security to the legal
heirs of the deceased Judge. The concerned Director FIA is also
directed to inquire into the contents of the complaints and if found
actionable proceed strictly in accordance with law.
10.
For what has been discussed above, we do not find any
merit in this petition, which is accordingly dismissed and leave to
appeal is refused.
JUDGE
JUDGE
Islamabad, the
8th of November, 2021
Approved For Reporting
Khurram
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
MR. JUSTICE GULZAR AHMED
MR. JUSTICE DOST MUHAMMAD KHAN
MR. JUSTICE FAISAL ARAB
Criminal Petition No.634 of 2015
(On appeal from the judgment dated
8.7.2015 passed by the Lahore High
Court, Multan Bench in Crl.A.NO.8/15))
Soba Khan
…Petitioner
Versus
The State and another
..Respondents
For the petitioner:
Sardar Khurram Latif Khosa, ASC
Syed Rifaqat Hussain Shah, AOR
For the State:
Mr. Asjad Javed Goral, APG, Pb.
Complainant:
N.R.
Date of hearing:
4.3.2016
JUDGEMNT
Dost Muhammad Khan, J.—
CMA NO.952/15 for condonation of delay is allowed.
Crl.P.634/15: The petitioner, Soba Khan, s/o Khan Muhammad has
sought leave to appeal against the order/judgment of the learned
Single Judge of the Lahore High Court, Multan Bench dated 8.7.2015
whereby, during pendency of his appeal against conviction and life
imprisonment awarded to him by the Trial Court, his petition for grant
of bail by suspending his sentence till disposal of the appeal was
dismissed.
We have heard Sardar Khurram Latif Khosa, learned ASC for the
petitioner, Mr. Asjad Javed Goral, learned Additional Prosecutor
General, Punjab while the complainant has left the country and was
not represented.
Crl.P.634/15
2
2.
The petitioner along with five co-accused were charged for
effectively firing at the deceased namely Ghulam Mustafa, uncle of the
complainant, namely, Allah Yar and causing his death while other two
co-accused namely, Amir Bakhsh and Yar Muhammad were charged
for conspiracy/abetment for the crime. Allegedly the occurrence took
place at 5:30 pm while the report of the crime was lodged at the spot
with S.I. Farid Bakhsh at 7:30 pm, on 11.04.2012, the day on which
the tragedy took place.
3.
Learned ASC for the petitioner vehemently contended that
the impugned order/judgment of the learned Judge of the Lahore High
Court has altogether thwarted the way of grant of bail in post
conviction case, which is not in consonance with the provisions of
S.426 Cr.P.C. empowering the Appellate Court to grant bail to the
convict by suspending his sentence and that, the mere view of the
learned Judge that the points raised before him relate to deeper
appreciation of evidence was based on misconception. No innocent
person shall be left to rot in Jail if his case is fit for grant of bail, by
way of suspension of his sentence because if in the long run he is
acquitted like his co-accused then, he cannot be compensated for the
long incarceration in Jail.
4.
Learned State Counsel for the Government of Punjab
defended the impugned order/judgment of the learned Single Judge of
the Lahore High Court on the same grounds, given therein.
5.
In the instant case, six accused in all were charged and it
is alleged that all of them encircled the deceased and fired at him after
one another with quick succession, hitting him on different parts of his
body.
Crl.P.634/15
3
6.
Learned ASC for the petitioner invited our attention to the
postmortem report and the pictorial, annexed therewith, which
contradict the ocular account, because the petitioner and the
absconding co-accused have been attributed inflicting injuries on left
neck of the deceased and the other acquitted accused has been
attributed firing at the deceased which hit him on the back of his neck.
The autopsy report and the pictorial, both undeniably reveal that the
deceased has sustained only one firearm entry wound on the left side
of neck while there are two exit wounds, one on the right side of the
neck and the other on the lateral top of right shoulder, above the
armpit.
7.
It was stated at the bar that the majority of the accused,
charged in the FIR were declared innocent in two consecutive
investigations, conducted by the police; the one initially carried out by
the first investigating officer and the second one on the application of
the complainant, thus they were not recommended for trial and were
placed in column No.II of the “Chalan” however, on a private
complaint, lodged by the complainant with inordinate delay, the
learned Trial Court took cognizance of it, after getting report from the
Magistrate, who held inquiry into the matter and summoned all the
accused, charged in the FIR to face the trial.
8.
True that the principle of law is well settled that police
opinion, even conclusive in nature, is not binding on the Court and it
may disagree with the same but for the cogent reasons to be
recorded. However, as it appears from the record, the learned Trial
Judge has omitted to record such reasons.
Crl.P.634/15
4
9.
The next crucial point in the matter is that, according to the
allegations contained in the FIR and the complaint lodged with
considerable delay, the crime was committed by all members of the
unlawful assembly and each one of them participated in the crime,
playing effective and active role of causing injuries to the deceased
and evidence recorded at the trial is also the same so much so that
one of the acquitted co-accused who has been attributed similar fatal
injury like the petitioner, has been acquitted. Such a decision was
taken by the Trial Court despite applicability of the provision of S.149
PPC attracting vicarious liability to each member of the unlawful
assembly committing cognizable offence in prosecution of common
object of that assembly. This provision further states that even a
member of such assembly having simple knowledge that the offence
was likely to be committed in prosecution of that object, shall be
deemed to be guilty for that offence. This criminal liability is judicially
phrased as, “A vicarious liability”.
10.
It is indeed disturbing feature that similarly charged
accused have been acquitted on the same set of evidence but the
petitioner was convicted alone because the injury on the neck was
found to be one of the fatal injuries in the autopsy report by the
Medico-legal officer, ignoring the fact that for this solitary entry wound
three persons have been charged including the petitioner. Whether it
happened in the present case or not, but the probability is definitely
there in view of the consistent opinion of the Jurists on Medicolegal
science/jurisprudence that a single bullet after entering the deceased’s
body either due to its spin, speed or hitting the hard part of the body
like bone, fragmented and splintered pieces of bullet caused multiple
exit wounds.
Crl.P.634/15
5
11.
For grant of bail at post conviction stage, the Legislature
has enacted the provision of S.426 Cr.P.C. which consists of main
three sub-sections, three clauses and a proviso as well. These are of
significance and are reproduced below:-
426. Suspension of sentence pending appeals. Releas on
bail.-- (1) Pending any appeal by a convicted person, the
Appellate Court may, for reasons to be recorded by it in writing,
order that the execution of the sentence or order appealed
against be suspended and, also, if he is in confinement, that he
be
released
on
bail
or
on
his
own
bond.
(2) The power conferred by this section on an Appellate
Court may be exercised also by the High Court in the case of
any appeal by a convicted person to a Court subordinate
thereto.
(2B) Where High Court is satisfied that a convicted person
has been granted special leave to appeal to the the Supreme
Court against any sentence which it has imposed or maintained,
it may if it so thinks fit order that pending the appeal the
sentence or order appealed against be suspended, and also, if
the said person is in confinement, that he be released on bail.
(3) When the appellant is ultimately sentenced to
imprisonment, or transportation, the time during which he is so
released shall be excluded in computing the term for which he is
so sentenced.”
12.
Like the provisions of S.497 and 498 Cr.P.C. the guiding
principle and criteria including limitations on the powers of the Court
not to grant bail in offences punishable with death, or imprisonment
for life or for ten years falling within the prohibitory limb of S.497
Cr.P.C. has been omitted from the provision of S.426 Sub-S.(1)
Cr.P.C.
Crl.P.634/15
6
13.
Considering from a legal angle, the omission of these
prohibitions, limitations and guidelines is meaningful because the
Legislature
did
not
deem
it
appropriate
to
borrow
the
guidelines/criteria, provided for grant of bail in the provision of S.497
Cr.P.C. however, the principle of law has been since long developed by
the superior courts that the powers of the Appeal Court in granting bail
at post conviction stage, shall be guided by the criteria/principle
provided in S.497 Cr.P.C. while in some cases it has been further
provided that the Court of appeal or a High Court shall not conclusively
decide the guilt or innocence of the accused, entering upon the re-
appraisal of evidence during pendency of appeal against the conviction
and sentence, subject of course that the matter relates to liberty of a
person therefore, it shall not be decided in vacuum and tentative
assessment of the evidence has to be made. Similarly, a sick or an
infirm person, whose treatment in prison cannot be managed properly,
has been released on bail. Also woman, having a suckling baby has
been granted bail even in life imprisonment cases by suspending her
sentence.
14.
In view of above guidelines by the superior courts now the
provision of S.426 Cr.P.C is considered to be pari-meteria with S.497
Cr.P.C. The contention that after conviction the initial presumption of
innocence in favour of the accused disappears, will have little bearing
on the mind of the Appeal Court because appeal is always construed to
be continuation of the same proceedings and fair balance is to be
struck between the two extreme views so that justice is done in all
circumstances and technicalities of procedural law, shall in no manner
thwart the same because if in the end of the day after spending years
in the prison, the convict is acquitted, there is no reparatory
Crl.P.634/15
7
arrangement so far provided in any law including the Criminal
Procedure Code, to compensate him for incarceration in prison for
years. While to the contrary sub.S.(3) of S.426 Cr.P.C. provides that
while computing the sentence of the convict, the period during which
his sentence was suspended and he was released on bail, shall be
excluded from the total period of sentence he has to undergo. Thus,
the State or the complainant is compensated in that manner but for
the convict no such relief is provided in law.
15.
In view of the above legal position, emanating from the
construction of the provision of S.426 Cr.P.C. the Court of Appeal,
more particularly the High Court, shall take extraordinary caution and
care not to leave the convict to rot in Jail by undergoing any sentence
including the life imprisonment and in appropriate cases through
tentative assessment of the evidence on record if the case of any
convicted person is found fit for grant of bail then, denial of the same
would amount to patent injustice.
16.
What is the tentative assessment of evidence/materials
and how it differs from deeper appreciation of evidence, has been
appropriately distinguished from one another in the case of Khalid
Javed Gillan v. State (PLD 1978 SC 256), however, if on
reconsideration of the evidence the Court of Appeal is of the view that
the conviction and sentence is not liable to be maintained then, slightly
touching the merits of the case without recording conclusive findings
therein, would be a permissible course in the interest of justice
because such assessment of evidence would not be binding on the
court of appeal, or to say the High Court, while hearing the appeal. It
is for this reason that the Legislature has enacted sub-S.(3) of S.426
Cr.P.C. envisaging how to the court of appeal to deal with in future
Crl.P.634/15
8
course when the sentence awarded by the Trial Court is maintained.
Almost similar principle is laid down by the superior courts while
interpreting the provision of S.497 Cr.P.C. and it has been held in
numerous reported judgments that the provision of S.426 Cr.P.C. is at
par and parallel to the provision of S.497 Cr.P.C. where such
assessment is not prohibited by the words and phrases used therein
then, why extra limitations and prohibitions shall be read into S.426
Cr.P.C. The principle that the court of appeal or the High Court while
considering the suspension of sentence and grant of bail to the convict
shall take extra care, is not a rule of law but a rule of caution.
Keeping in view the above legal position squarely spelt out after
placing construction on the provision of S.426 Cr.P.C there appears no
much difference between the two provisions of law regulating the
grant of bail at pre and post conviction stages.
17.
It is by now well settled principle of law relating to re-
appraisal of evidence that once co-accused, similarly charged and
attributed same and similar role in a particular crime, is acquitted on
the basis of same set of evidence where the witnesses have
maintained no regard for truth while deposing on oath to tell the truth
and nothing else then, ordinarily they shall not be relied upon with
regard to the other co-accused unless their testimony/evidence is
strongly corroborated by independent cogent and convincing evidence.
18.
Keeping in view the above principle of law, tentatively it
appears to us that the evidence furnished by the prosecution in this
case appears to be indivisible and in absence of additional
corroboration of the nature stated above, whether conviction and
sentence of the petitioner can be maintained on the same evidence, on
the basis of which the co-accused have been acquitted with the same
Crl.P.634/15
9
and similar role, thus, this fact has entitled the petitioner to the
concession of bail.
18.
Accordingly, this petition is converted into appeal and the
same is allowed. The appellant is granted bail by suspending his
sentence of life imprisonment in the sum of Rs.4,00,000/- with two
reliable sureties to the satisfaction of the Additional Registrar
(Judicial), of Lahore High Court, Multan Bench, Multan.
Judge
Judge
Judge
B-V
Islamabad, the
4th March, 2016
Nisar /-
Approved For Reporting
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mazhar Alam Khan Miankhel
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.640 of 2020
(Against order dated 5.6.2020 passed by the Peshawar High Court
Peshawar in Cr. Misc. (BA) No.1446-P/2020)
Kamran
.…Petitioner(s)
Versus
Kamran Malik and another
….Respondent(s)
For the Petitioner(s):
Mr. Hussain Ali, ASC
For the State:
Ms. Aisha Tasneem, ASC
with Siraj, I.O.
Date of hearing:
30.07.2020.
ORDER
Qazi Muhammad Amin Ahmed, J.- Waseem Aslam, Waqas Aslam
and Siddique Aslam, real brothers inter se, were shot dead at 8:30 p.m.
on 14.1.2020 within the precincts of Police Station Bhana-Marri
Peshawar; Kamran Malik, complainant survived the assault unscathed.
Muhammad Ishaq, co-accused, is assigned fatal shots in the deadly
assault while the petitioner, no other than his son, is blamed to have
exhorted him to take on the deceased. A previous brawl is cited as motive
for the crime.
2.
Heard. Record perused.
3.
Awful magnitude of violence and resultant loss of life
notwithstanding, nonetheless, the petitioner though statedly present with
other family members outside his home where the deceased had gone to
lodge complaint for the previous incident, is not attributed any harm to
them, as on prosecution’s own showing, he allegedly instigated his father,
otherwise authoritatively placed on the parental rung. Question as to
whether, instead of taking deadly initiative himself, he preferred to
persuade his father for the misadventure, a role, contrary to the traditions,
brings the accusation within the ambit of subsection 2 of section 497 of
the Code of Criminal Procedure 1898 and thus, would be best settled after
Criminal Petition No.640 of 2020
2
recording of evidence, therefore, he cannot be kept behind the bars merely
as a measure of punishment. Investigation being complete, petitioner’s
continuous detention is not likely to serve any useful purpose, beneficial to
the prosecution. Criminal petition is converted into appeal and allowed;
petitioner shall be released on bail subject to 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/duty Judge.
These are the reasons of our short order of even date, reproduced
below:
“For reasons to follow, this petition is converted
into appeal and allowed; petitioner shall be
released on bail subject to furnishing bond in the
sum of Rs.500,000/- with two sureties each in
the like amount to the satisfaction of the learned
trial Court/duty Judge.”
Judge
Judge
Islamabad, the
30th July, 2020
Not approved for reporting
Azmat/-
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mazhar Alam Khan Miankhel
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition Nos.654 of 2020
(Against the order dated 1.6.2020 passed by the
Islamabad High Court Islamabad in C.M. No.137/2020 in
Crl. Misc. No.689-B/2020)
Saeed Zaman
.…Petitioner(s)
Versus
The State & another
….Respondent(s)
For the Petitioner(s):
Mr. Riffat Saghiry Kureshy, ASC
For the Respondent(s):
Mr. Sajid Ilyas Bhatti
Addl. Attorney General along with
Qaiser Masood, Ad. Dir. (L)
Fazal Mabood, I.O.
Mr. Qaisar Imam Ch. AD (L)
Date of hearing:
07.08.2020.
ORDER
Qazi Muhammad Amin Ahmed, J.- Saeed Zaman, petitioner,
is amongst the array of accused, allegedly involved in a massive financial
scam wherein, after his arrest, he attempted for bail; in the wake of
dismissal of his motion in the Court of Session, he moved the Islamabad
High Court for bail vide Crl. Misc. No.682-B of 2019, however, it was
dismissed withdrawn on 12.11.2019. Undeterred by his previous failure,
the petitioner once again moved the High Court through Crl. Misc. No.
689-B of 2020 when a learned Judge-in-Chamber vide order dated
20.5.2020, earlier dismissal notwithstanding, granted him bail, however,
with a formidable rider in terms of a direction to deposit Rs.5.16 million,
the amount allegedly siphoned off by him, with the Court, besides
furnishing a bond in the sum of Rs.100,000/- with one surety. As the
petitioner failed to arrange the amount, he moved the Court through C.M.
No.137/2020 seeking exemption from the cash deposit, a request declined
vide impugned order dated 01.06.2020.
2
2.
Learned counsel for the petitioner contends that once the
learned Judge-in-Chamber felt persuaded to release the petitioner on bail,
imposition of a condition, compliance whereof is beyond his financial
capacity, would tantamount to withhold the benefit of relief, otherwise held
as extendable. It is next argued that the impugned condition being alien to
law merits interference by this Court. The learned Law Officer has
contested the plea.
3.
Heard. Record perused.
4.
Law on the grant or refusal of bail in criminal cases is by now
clearly contoured and well settled, the regime is an interlocutory
arrangement to ensure physical presence of an accused so as to confront
the indictment pending conclusion of the trial, either under judicial custody
or with a surety to produce him before the Court as and when required. In
the non-bailable category of offences, grant of bail in crimes punishable
with imprisonment of less than 10 years, presumably with charges on the
lower side of gravity scale, the release of accused, after conclusion of
investigation is a rule, however, even in appropriate cases, the Court may
still validly decline the concession. In offences punishable with death or for
imprisonment for 10 years or above, the accused cannot be released on bail
unless he succeeds in making out a case calling for further probe. In the
event of his release on bail, the Court may require an accused to execute a
bond either personally or through sureties amount whereof “shall be fixed
with due regard to the circumstances of the case, and shall not be excessive.”
The bond by the accused or the sureties, as the case may be, has to be
executed to ensure compliance, contemplated by section 499 of the Code of
Criminal Procedure 1898 (‘the Code’), reproduced below for ready
reference:
“Bond of accused and sureties.-(1) Before any person
is released on bail or released on his own bond, a bond
for such sum of money as the police-officer or Court, as
the case may be, thinks sufficient shall be executed by
such person, and, when he is released on bail, by one
or more sufficient sureties conditioned that such person
shall attend at the time and place mentioned in the
bond, and shall continue so to attend otherwise directed
by the police officer or Court, as the case may be.
(2) If the case so require, the bond shall also
bind the person released on bail to appear when called
upon at the High Court, Court of Session or other Court
to answer the charge.”
The survey of above provisions clearly demonstrates that in case the Court
consider it expedient to release an accused on bail pending conclusion of
3
his trial, it can certainly require him to execute a bond either personally or
through sureties, setting conscionable amounts therein, having regard to
the facts and circumstances of each case with a view to ensure future
attendance and may proceed to forfeit such bond in the event of
default/non-compliance as contemplated by section 514 of the Code. The
Code does not envisage cash deposit except for an undertaking for good
behavior within the framework of section 513 thereof.
The above interlocutory arrangement cannot be equated with the
final adjudication of a criminal case, to be essentially settled on the
strength of evidence with all procedural safeguards to conveniently enable
the accused to vindicate his position without any embarrassment and
during pendency of the process, he can secure interim freedom only if a
case for his release is made out and in such eventuality, he cannot be
additionally coerced to surrender or deposit amounts, forfeiture or
settlement whereof is consequent upon final adjudication, that too, subject
to the law. The statutory arrangements detailed above are founded on the
paramount principle of equality before law as well as equal protection
thereof; protection and equality that are not shadowed by the divergent
financial capacities of different accused, otherwise found entitled to
freedom, interim or ultimate, without strings.
5.
For the above reasons, we have not been able to persuade
ourselves
to
uphold
the
imposition
of
the
impugned
condition.
Consequently, petition is converted into appeal and allowed, as a result
whereof, order dated 20.05.2020 by the Islamabad High Court is set aside.
Petitioner’s plea for bail shall be deemed as pending before the High Court
for decision afresh in accordance with law on the available grounds.
Judge
Judge
Islamabad, the
7th August, 2020
Not approved for reporting
Azmat/-
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE IJAZ UL AHSAN
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
CRIMINAL PETITION NO. 656-L OF 2021
(On appeal against the order dated 28.04.2021 passed by
the Lahore High Court, Lahore in Criminal Miscellaneous No.
21377-B/2021)
Shahid Abbas
… Petitioner
VERSUS
The State etc
… Respondents
For the Petitioner:
Mr. Hamayun Rashid Ch, ASC a/w
petitioner
For the State:
Mr. Muhammad Jaffer, Addl. P.G.
Mr. Ejaz Ahmed, SI
Date of Hearing:
12.10.2021
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
28.04.2021 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. 33 dated 11.01.2021 under Sections
452/337-A(ii)/337-A(i)/337-F(i)/448/511/148/149 PPC at Police
Station
Bhawana,
District
Chiniot
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 and ‘sotas’
trespassed into the house of the complainant while causing injuries
to him. Petitioner’s pre-arrest bail was declined by the learned Trial
Court vide order dated 24.03.2021 and it also met the same fate
before the learned High Court vide impugned order dated
28.04.2021. Hence, this petition seeking leave to appeal.
3.
Learned counsel for petitioner contends that the
petitioner has been falsely roped in this case against the actual facts
Criminal Petition No. 656-L/2021
2
and circumstances due to connivance of the complainant with local
police. Further contends that the FIR of the alleged occurrence was
registered after a delay of 23 days, which shows deliberation and
consultation on the part of the complainant. Lastly contends that the
medico legal report was obtained prior to the occurrence, which
speaks volume on the conduct of the complainant.
4.
On the other hand, learned Law Officer has defended
the impugned order declining bail to the petitioner. He contends that
the petitioner has been specifically nominated in the crime report
with a specific allegation of causing ‘sota’ blow on the left side of
head 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 record.
There is no denial to the fact that the FIR of the
occurrence was got recorded after an inordinate delay of about 23
days for which no plausible explanation has been given. It was the
stance of the complainant that the alleged occurrence took place on
19.12.2020 at about 9/10 PM in night but surprisingly, the medico
legal report had been obtained prior to the occurrence and the same
shows that the injured was examined at 2.10 PM on 19.12.2020 i.e.
about 7/8 hours prior to the occurrence. As per the contents of the
crime report, the role attributed to the petitioner is that he firstly
caught hold of the complainant and thereafter, he gave a ‘sota’ blow
on the left side of his head. However, we have found that the injured
was examined by a medical board and so far as the injury on his
head is concerned, the report shows that the possibility of
fabrication cannot be ruled out. It is an admitted position that civil
litigation is pending between the parties. Keeping in view the facts
and circumstances of this case, the possibility of false implication of
the petitioner cannot be ruled out. In these circumstances, it is the
Trial Court who after recording of evidence would decide about the
guilt or otherwise of the petitioner. Prima facie there are sufficient
grounds to take into consideration that the case of the petitioner is
fully covered by Section 497(2) Cr.P.C. calling for further inquiry to
his guilt.
Criminal Petition No. 656-L/2021
3
6.
For what has been discussed above, we convert this
petition into appeal, allow it, set aside the impugned order dated
28.04.2021 passed by the learned Single Judge of the High Court
and confirm the ad interim pre-arrest bail granted to the petitioner
vide this Court’s order dated 23.07.2021.
JUDGE
JUDGE
Lahore, the
12th of October, 2021
Approved For Reporting
Khurram
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mushir Alam
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.658 of 2020
(Against the judgment dated 16.04.2020 passed by the
Peshawar High Court Peshawar in Cr.M. BA No.815-
P/2020)
Tahir Zeb etc.
…Petitioner(s)
Versus
The State & another
….Respondent(s)
For the Petitioner(s):
Mr. Arshad Hussain Yousafzai, ASC
Syed Rifaqat Hussain Shah, AOR
For the State:
Mr. Anis Muhammad Shahazad, ASC (State
counsel KP) along with Anwar Khan, SI/I.O.
For the Complainant:
Mr. Abdul Ahad Khan, ASC
Date of hearing:
25.08.2020.
ORDER
Qazi Muhammad Amin Ahmed, J.- Learned counsel for the
petitioner does not press this petition to the extent of Tahir Zaib,
petitioner, to his extent, it stands dismissed.
2.
It is alleged that on the fateful day i.e. 21.12.2019 at about
15:30 p.m, the petitioner joined his brother to run over Liaqat Khan
deceased over a dispute regarding the sale of the same vehicle; Tahir Zaib
was on the wheel while Shair Zaib petitioner accompanied him on the next
seat.
3.
Heard. Record perused.
4.
It appears that a situation cropped up all of a sudden resulting
into injuries to the deceased; petitioner’s culpability for being in the
community of intention on account of his presence on the next seat is an
issue that in the facts and circumstances of the case can be best settled
after recording of evidence. An unconventional mode adopted by the
co-accused to take the life of the deceased and suddenness of the incident
squarely bring petitioner’s case within the remit of further probe; to his
extent criminal petition No.658 of 2020 is converted into appeal and
allowed; he shall be released on bail upon furnishing bond in the sum of
2
Rs.500,000/- with one surety in the like amount to the satisfaction of the
learned trial Court/duty Judge.
Judge
Judge
Islamabad, the
25th August, 2020
Not approved for reporting
Ghulam Raza/-
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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 Petitions No.67-P & 68-P of 2014
(Against the judgment dated 29.05.2014 passed by the
Peshawar High Court, Mingora Bench (Dar-ul-Qaza) Sawat in
Criminal Appeal No.29-A of 2012).
Saleem Zada and others
(in Cr.P. No.67-P/2014)
Muhammad Zada
(in Cr.P. No.68-P/2014)
…Petitioner(s)
VERSUS
The State etc.
(in Cr.P. No.67-P/2014)
Sher Zamin etc.
(in Cr.P. No.68-P/2014)
…Respondent(s)
For the Petitioner(s)
(in both cases)
: Mr. Sahibzada Asadullah, ASC
For the Respondent(s)
: Mr. Zia Ur Rehman Khan, ASC
(in both cases)
Date of Hearing
: 10.06.2019
JUDGMENT
Qazi Muhammad Amin Ahmed, J.- Saleem Zada,
Khawat Shah and Swat Shah, petitioners in Criminal Petition for
Leave to Appeal No.67-P/2014 alongside Sher Zamin, respondent in
Criminal Petition for Leave to Appeal No.68-P/2014 were tried for
committing qatl-e-amd of Pir Zada as well as, attempt on Bahri
Zaman alias Bahrey, PW; they were returned a guilty verdict by the
trial Court vide judgment dated 7.2.2012. A learned Division Bench
of the Peshawar High Court acquitted Sher Zamin from the charge,
however,
maintained
convictions
and
sentences
consequent
thereupon of the remainder vide impugned judgment dated
29.5.2014; this brings the complainant and the convicts before us;
both issues with a common thread are being decided through this
single judgment.
2.
In the backdrop of previous enmity, on eventful day i.e.
26.11.2010 at 4.30 p.m., the petitioners and the respondent
intercepted Pir Zada deceased and Bahri Zaman, PW while on board
Criminal Petition Nos.67 & 68-L of 2014
2
a public vehicle; forcibly de-boarded, they were dealt with hatchet
blows as well as fire shots, in consequence whereof, Pir Zada
succumbed to the injuries at the crime scene while the complainant
with multiple injuries survived the assault. Incident was reported at
the hospital and a formal case was registered 6.30 p.m. at Police
Station Gagra, situated, 9/10 kilometers from the venue. The
accused claimed trial, pursuant whereto, prosecution produced
Bahri Zaman, PW-1 alongside Taj Habib Gul, PW-2 to bring home
the charge; the latter is driver of the vehicle. Fate of the prosecution
case is primarily hinged upon the statement of Bahri Zaman, PW-1.
Taj Habib Gul, PW-2, driver of the vehicle though confirmed the
episode, however, had not identified the assailants so as to establish
their culpability. Investigative conclusions and medical evidence are
in line with the statement of Bahri Zaman, PW-1; durations given in
the crime report as well as by the doctor coincide with the time of
occurrence; the case was registered with a remarkable promptitude;
previous bad blood has not seriously been contested; it is on the
basis of these pieces of evidence that the accused have been found
guilty of the crime. We have gone through the statement of Bahri
Zaman, the sole eye witness and found him most confidence
inspiring; he alone can sustain the charge; being injured, his
presence cannot be doubted. Driver of the vehicle, though reticent
in his deposition, nonetheless, has unambiguously confirmed
circumstances whereunder the occurrence took place. Cross
examination on both the witnesses remained inconsequential and
as such convictions and sentences consequent thereupon do not
call for interference. Acquittal of Sher Zamin, respondent, seemingly
out of abundant caution, particularly having regard to his mute
presence does not offend any principle of law; there do not exist
extra ordinary grounds to recall freedom. Resultantly, these
petitions are dismissed and leave to appeal refused.
JUDGE
JUDGE
Lahore, the
10th of June, 2019
Ghulam Raza/*
JUDGE
Criminal Petition Nos.67 & 68-L of 2014
3
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
MR. JUSTICE FAISAL ARAB
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
CRIMINAL PETITION NO.682 OF 2020
(Against the order of Lahore High Court,
Lahore dated 08.06.2020 passed in Crl.
Misc. No. 22166-B/2020)
Abbas Raza
… Petitioner
Versus
The State through P.G. Punjab and
others
… Respondents
For the Petitioner
:
Rana Muhammad Akram, ASC
For Respondent
:
Mirza Muhammad Usman, Deputy Prosecutor
General and Khizar Hayat SI, police station
Ghulam Muhamma Abad, Faisalabad
Date of Hearing
:
15.09.2020
ORDER
SAYYED MAZAHAR ALI AKBAR NAQVI:- Petitioner has
invoked the jurisdiction of this Court under Article 185(3) of the
Constitution of Islamic Republic of Pakistan, 1973 calling in question the
order of Single Bench of Lahore High Court, Lahore dated 08.06.2020
declining post arrest bail to the petitioner with prayer to grant the same in
the interest of safe administration of justice.
2.
The
petitioner
was
involved
in
case
bearing
FIR
No.214/2020 dated 02.02.2020 registered with police station Ghulam
Criminal Petition No. 682 of 2020.
-: 2 :-
Muhammad Abad, District Faisalabad, offence under section 9-C of the
Control of Narcotic Substance Act, 1997.
As per allegation contained in the crime report it is alleged
that the petitioner was selling narcotics while sitting in the “Baithak”
adjacent to his house. He was taken into custody. During his personal
search a polythene shopper was found containing opium weighing 1300
grams held in his right hand at the time of raid. The raiding party also took
into possession one electric weighing machine and sale proceeds
amounting to Rs.2129290/-. The detail of the denomination is mentioned
in the crime report. Vide order dated 27.07.2020, this Court issued notice
to the State.
3.
At the very outset, it has been argued by learned counsel for
the petitioner that the prosecution story narrated in the crime report is
frivolous, concocted and it do not inspire confidence from its bare reading.
Contends that the allegation that 1300 grams opium was recovered do not
commensurate with the recovery of the sale proceeds of the contraband
which is much higher and as such its create suspicion qua the
genuineness of the prosecution’s version in the crime report. Learned
counsel further brought in the notice of this Court that the mother of the
petitioner had sold her house just prior to the registration of this case
against the consideration of Rs.2450000/- and the amount mentioned in
the crime report is sale consideration of the said house which was taken
into possession by the investigating officer without any legal justification.
Contends that the amount mentioned in the crime report is the same
amount which was recovered by the police while misusing its authority
which is against the spirit of safe administration of justice.
Criminal Petition No. 682 of 2020.
-: 3 :-
4.
On the other hand, learned Law Officer frankly conceded
that the recovery of contraband do not commensurate with the sale
proceeds levelled in the crime report, however, he stated that as the
recovery of 1300 grams of opium is alleged which do fall within the
prohibitory clause of section 497 Cr.P.C. hence, the petitioner is not
entitled for concession of bail.
5.
We have heard the learned counsel for the parties and gone
through the record.
Bare perusal of the crime report clearly reflects that the
instant occurrence has taken place in the odd hours of night at 12.50 a.m.
on 02.02.2020 while the matter was registered against the petitioner on
the same day at 1.05 a.m. In the month of February, when the weather is
cold, selling of narcotics while sitting in the “Baithak” seems to be
something astonishing, when there is remote possibility of attracting any
customer at that odd time. Otherwise when it is the allegation that the
petitioner is selling narcotics substance “opium” a contraband the use of
which makes the consumer affected through central nervous system
pouring negative impact in the body while making him dull, depressed, of
impaired reflexes, lacking sharpness turning into a sluggish entity. All
these aspects when evaluated conjointly, it lends support to the
arguments advanced by the learned counsel for the petitioner qua
prosecution story being result of fabrication. The liberty of a person is a
precious right which has been guaranteed under the Constitution of
Islamic Republic of Pakistan, 1973. The denial of the same should be
such which can establish the guilt of the accused without second though.
6.
Keeping in view the facts and circumstances narrated above
and the quantity of recovered contraband and seeking guidance from the
case titled “SAEED AHMED versus STATE through P.G. Punjab and
Criminal Petition No. 682 of 2020.
-: 4 :-
another” (PLJ 2018 SC 812), we are persuaded to grant leave to appeal
in the instant petition while converting it into appeal and the same is
allowed. As a consequent, the petitioner is admitted to post arrest bail
subject to furnishing bail bonds in the sum of Rs.2,00,000/- with one
surety in the like amount to the satisfaction of learned trial court.
Judge
Judge
Islamabad,
15.09.2020
Approved for reporting.
“Athar”
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Asif Saeed Khan Khosa
Mr. Justice Mushir Alam
Mr. Justice Dost Muhammad Khan
Criminal Petition No. 685 of 2015
(Against the judgment dated 13.07.2015 passed by the Lahore
High Court, Rawalpindi Bench, Rawalpindi in Criminal Appeal No.
307 of 2009)
Niaz Ahmed
…Petitioner
versus
Hasrat Mahmood, etc.
…Respondents
For the petitioner:
Sh. Ahsan-un-Din, ASC
For respondents No. 1-3:
Mr. Tanvir Iqbal, ASC
Date of hearing:
04.11.2015
ORDER
Asif Saeed Khan Khosa, J.: We have heard the learned
counsel for the petitioner at some length and have gone through
the relevant record of the case appended with this petition.
2.
As regards the merits of the case we have noticed that the
occurrence in this case had taken place during a night and
according to the FIR as well as the private complaint initially only a
suspicion
had
been
expressed
by
the
petitioner
against
respondents No. 1 to 3 vis-à-vis their involvement in the murder in
issue. During the trial the proseuction had based its case against
respondents No. 1 to 3 only on circumstantial evidence in the
shape of the last-seen evidence, motive and an extra-judicial
confession. All the said three pieces of evidence had threadbarely
been discussed by the trial court as well as the High Court and
Criminal Petition No. 685 of 2015
2
both the courts below had concurred in their conclusion that the
proseuction had remained unable to prove its case against
respondents No. 1 to 3 beyond reasonable doubt and resultantly
the trial court had acquitted the said respondents and the High
Court had upheld such acquittal. Upon our own independent
evaluation of the said pieces of evidence we have not been able to
take a view of the matter different from that concurrently taken by
the courts below.
3.
It has vehemently been argued by the learned counsel for the
petitioner that the petitioner had initially lodged an FIR in respect
of the incident in question and subsequently, having remained
dissatisfied with the investigation of the case by the local police, he
had instituted a private complaint regarding the selfsame incident
containing identical allegations as leveled in the FIR and, thus, by
virtue of the law declared by this Court in many cases the trial
court ought to have conducted the trial in the complaint case first
and it ought not to have consolidated the complaint case and the
Challan case for a joint and simultaneous trial. In this regard the
learned counsel for the petitioner has placed reliance upon the
cases of Nur Elahi v. The State, etc. (PLD 1966 SC 708), Mst.
Rasool Bibi v. The State and another (2000 SCMR 641), Syed
Muhammad Hussain Shah v. Abdul Hamid and 5 others (1981
SCMR 361) and Muhammad Azam v. Muhammad Iqbal and others
(PLD 1984 SC 95). We have attended to the said argument
advanced by the learned counsel for the petitioner and have also
perused the precedent cases referred to by him in support of such
contention. The law is settled by now that if different versions of
the same incident are advanced by the rival parties through cross-
cases and such different versions contain different sets of accused
persons then trial of such cross-cases is to be held simultaneously
and side by side and a reference in this respect may be made to
the cases of Muhammad Sadiq v. The State and another (PLD 1971
SC 713), Abdul Rehman Bajwa v. Sultan and Nine others (PLJ 1981
SC 895), Rashid Ahmad v. Asghar Ali, etc. (1987 PSC 646) and Mst.
Rasool Bibi v. The State and another (2000 SCMR 641). The law is
Criminal Petition No. 685 of 2015
3
equally settled on the point that where the same party lodging the
FIR also institutes a private complaint containing the same
allegations against the same set of accused persons then the trial
court is to hold a trial in the complainant case first and in the
meanwhile the Challan case is to be kept dormant awaiting the fate
of the trial in the complaint case and a reference in this respect
may be made to the cases of Nur Elahi v. The State, etc. (PLD 1966
SC 708), Zulfiqar Ali Bhutto v. The State (PLD 1979 SC 53), Syed
Muhammad Hussain Shah v. Abdul Hamid and 5 others (1981
SCMR 361), Mumtaz and others v. Mansoor Ahmed and another
(NLR 1984 Cr.L.J. 300 (SC)), Rashid Ahmad v. Asghar Ali and
others (PLD 1986 SC 737) and Aziz-ur-Rehman v. The State (PLD
1987 Lahore 245). In the case in hand the trial court had ordered a
consolidated trial of the Challan case and the complainant case
which apparently was not the recommended course to be adopted.
Be that as it may the fact remains that the provisions of section
537, Cr.P.C. provide that no finding, sentence or order passed by a
court of competent jurisdiction is to be reversed or altered in
appeal or revision on account of any error, omission or irregularity
in the mode of trial unless such error, omission or irregularity has
in fact occasioned a failure of justice. An explanation attached with
section 537, Cr.P.C. clarifies that in determining whether any
error, omission or irregularity in any proceedings in the Code of
Criminal Procedure has occasioned a failure of justice the court
shall have regard to the fact whether an objection in that regard
could and should have been raised at an earlier stage in the
proceedings. In the present case we have pertinently noticed that
after a consolidated trial having been ordered by the trial court the
petitioner had never raised any objection throughout the trial
against the mode of trial adopted. Apart from that the learned
counsel for the petitioner has remained unable to convince us that
the mode of trial adopted by the trial court had caused any failure
of justice because whatever be the mode of trial adopted by the
trial court the evidence available with the proseuction was not
likely to improve. We have already noticed above that the evidence
available with the proseuction was not worthy of implicit reliance
Criminal Petition No. 685 of 2015
4
and, thus, the courts below have been found by us to be quite
justified in concluding that the proseuction had failed to prove its
case against respondents No. 1 to 3 beyond reasonable doubt. In
these circumstances no occasion has been found by us for
interference in the matter by this Court. This petition is, therefore,
dismissed and leave to appeal is refused.
Judge
Judge
Judge
Islamabad
04.11.2015
Approved for reporting.
Arif
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mazhar Alam Khan Miankhel
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.687 of 2020
(Against the judgment dated 20.05.2020 passed by
the Peshawar High Court Bannu Bench in Crl. Misc.
BA No.205-B/2020)
Muhammad Khan
…Petitioner(s)
Versus
Iqbal Khan & another
…Respondent(s)
For the Petitioner(s):
Mr. Salah-ud-Din Malik, ASC/AOR
For the State:
Ms. Aisha Tasneem, ASC with Ghousullah,
SI/I.O. P.S. Pezu Lakki Marwat.
For the Respondent(s):
Mr. Saleem Ullah Khan Ranazai, ASC with
respondent No.1 in person.
Mr. Mahmood Ahmed Sheikh, AOR
Date of hearing:
08.02.2021.
ORDER
Qazi Muhammad Amin Ahmed, J.- Impugned herein is order
dated 20.05.2020 by a learned Judge-in-Chamber of Peshawar High Court
at Bannu Bench, admitting Iqbal Khan respondent, accused in a case of
homicide, to post arrest bail; according to the prosecution, he, on the
fateful day, alongwith his brother Ayub Khan, armed with Kalashnikovs,
fatally targeted Fazal Rehman, deceased, in the backdrop of an ongoing
blood feud; witnesses survived the assault unscathed. Autopsy confirmed
solitary fire shot in the left eye with corresponding exit. During spot
inspection, the Investigating Officer secured 30 casings of Kalashnikov.
The accused avoided arrest, however, the respondent was arrest after
almost four years of the incident, co-accused still away from the law. The
High Court, ignoring respondent’s absconsion, granted him bail on the
ground that given the joint role it was far from being clear as to whose shot
hit the deceased. A position defended by the learned counsel for the
respondent.
2.
Heard. Record perused.
3.
Totality of circumstances does not admit space, that too, within
the restricted scope of tentative assessment to hypothetically absolve the
Criminal Petition No.687 of 2020
2
respondent from the indivisibility of his role of being in the community of
intention with the allegation of active participation in the crime.
Though the absconsion by itself is not proof of guilt nor
insurmountably stands in impediment to release of an offender if otherwise
a case for grant of bail is made out, nonetheless, it is a circumstance which
cannot be invariably ignored without having regard to peculiarity of
circumstances in each case as there are situations that possibly entail
consequences. In the present case, both the respondents opted to avoid the
law; one of them is yet not arrested, thus, in the absence of any
investigative analysis or conclusion, there was no occasion for the High
Court to itself presumptuously extricate the respondent from the web,
woven by the identity of circumstances jointly hovering upon both the
accused; the impugned exercise transcends beyond the barriers of tentative
assessment; it throws the entire prosecution case to the wind, an option
neither contemplated by law nor falling with the remit of “further inquiry”;
a case for intervention stands made out. Criminal petition is converted into
appeal and allowed; impugned order dated 20.05.2020 is set aside and bail
granted to the respondent is cancelled.
Judge
Judge
Islamabad, the
8th February, 2021
Not approved for reporting
Azmat/-
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mushir Alam
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.69-Q of 2019
(Against the judgment dated 09-8-2019 passed by the High Court of
Balochistan, Quetta in Crl. AppealNo.330/2017)
Manzoor Ahmed Akhtar
…Petitioner(s)
Versus
The State
…Respondent(s)
For the Petitioner(s):
Mr. Manzoor Ahmed Rehmani, ASC
For the State:
Syed
Abdul
Baqar
Shah,
ASC
at
Islamabad along with Wallayat Hussain
Addl. P.G. Balochistan at Quetta
Date of hearing:
09.09.2020.
ORDER
Qazi Muhammad Amin Ahmed, J.- The petitioner, a
Secondary School Teacher, was tried on a criminal charge that resulted
into his conviction; guilty verdict, upheld throughout, alongside
corporal consequences risked him his job as well. After his release, he
successfully hoodwinked the department by presenting a fake decision
of High Court of Balochistan, purporting to have acquitted him from
the charge, as a consequence whereof, he was given posting again in
the department with all benefits through condonation of absence
period as earned leave. On an application, the Anti Corruption
Department initiated inquiry against the petitioner and co-accused
Nazeer, an office Superintendent, blamed to have facilitated him in
betraying the public exchequer. A learned Special Judge acquitted the
co-accused by extending him benefit of the doubt, however, convicted
and sentenced the petitioner, as under:
“U/s 409 PPC, 10-years RI with fine of Rs.80,000/-
U/s 420 PPC, 7-years RI with fine of Rs.50,000/-
U/s 467 PPC, 10-years RI with fine of Rs.80,000/-
U/s 468 PPC, 7-years RI with fine of Rs.50,000/-
Criminal Petition No.69-Q of 2019
2
U/s 471 PPC, 7-years RI with fine of Rs.50,000/-
U/s 5(2)47 PCA, 4-years RI with fine of Rs.50,000/-
The High Court modified the judgment by setting aside petitioner’s
conviction under sections 409, 420 & 467 of the Pakistan Penal Code,
1860, however, maintained the guilty verdict on the remainder charges
with addition of conviction under section 466 of the Code ibid vide
impugned judgment dated 9-8-2019, vires whereof, are being assailed
on the ground that after prosecution’s failure on the main charges, the
only option available to the High Court was to record clean acquittal. It
is further argued that acquittal of office Superintendent, indicted for
being privy to the crime also demolished prosecution case qua the
petitioner as well; he emphatically disowned the fake judgment. The
learned Law Officer, assisted by Syed Abdul Baqar Shah, ASC, has
faithfully defended the impugned judgment;
2.
Heard. Record perused.
3.
Petitioner’s prosecution and his conviction on a criminal
charge is an admitted position; the judgment on the basis whereof he
managed his posting was found fake; it is on the basis thereof that the
petitioner not only manipulated his service but also derived benefit
thereof and, thus, his disclaimer regarding the fake judgment merits
outright rejection; he cannot disown a fake judgment relating to the
case wherein he was tried and convicted and, thus, being the sole and
obvious beneficiary now cannot escape consequences of ill-gotten
gains; his treachery came into the knowledge of the Anti-Corruption
Department when the co-villagers laid information of the mischief,
paving way for his prosecution. Acquittal of office Superintendent,
seemingly out of abundant caution, does not tremor the charge,
distinctly and inexorably pointed upon petitioner’s culpability; he has
rightly been convicted and sentenced and the findings recorded by the
Courts below have not been found by us as open to any exception.
Petition fails. Leave declined.
Judge
Judge
Islamabad, the
9th September, 2020
Not approved for reporting
Azmat/-
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mazhar Alam Khan Miankhel
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.691 of 2020
(Against the judgment dated 3.4.2020 of the
Peshawar
High
Court,
Peshawar
passed
in
Cr.MBA No.446-P of 2020)
Shehryar Khan
.…Petitioner(s)
Versus
The State and another
….Respondent(s)
For the Petitioner(s):
Mr. Asad Ullah Khan Chamkani, ASC
For the State:
Mr. Anis M. Shahzad, ASC
Gul Wali, Inspector/I.O.
For the Complainant:
Mr. Riazat ul Haq, ASC
Date of hearing:
03.08.2020.
ORDER
Qazi Muhammad Amin Ahmed, J.- Shehryar
Khan,
petitioner, attributed a fatal shot to Sabir-ur-Rehman, deceased, in his
mid 60s, at 9:30 a.m. on 13.04.2019, within the remit of Police Station
Daduzai Peshawar, in the backdrop of a dispute over immovable property,
seeks admission to bail, primarily on the strength of a ‘cross version’
structured upon a fire arm injury, sustained by Majid Khan, co-accused,
no other than his real brother, medically examined under a police docket
on the fateful day. Petitioner, after the incident, stayed away from law and
was, accordingly, proceeded under Section 512 of the Code of Criminal
Procedure 1898; he was finally taken into custody on 12.02.2020.
2.
Heard. Record perused.
3.
It would be less than expedient to comment upon the merits of
the prosecution case, bracing a cross version set up on an injury,
sustained by the co-accused, pressed into service with vehemence to
construct hypothesis of self defence, a controversy to be best settled by the
Criminal Petition No.691 of 2020
2
trial Court. Argument regarding suppression of injury sustained by Majid,
co-accused, in the face of identical suppression in the cross version
regarding the fatal shot on to the deceased, does not bring petitioner’s case
at a higher pedestal so as to be received with favour. Saddled with the
responsibility of the fatal shot, petitioner’s absence from law, additionally,
stands in impediment to his release on bail. Given the role attributed to
the petitioner, existence of a cross version, veracity whereof is yet to be
settled, by itself would not bring his case within the purview of further
probe. Petition fails. Leave declined.
Judge
Judge
Islamabad, the
3rd August, 2020
Not approved for reporting
Ghulam Raza/-
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mazhar Alam Khan Miankhel
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No. 692 of 2020
(Against the judgment dated 9.3.2020 passed by
the Peshawar High Court Peshawar in Cr.M.BA.
No.236-P/2020)
Ikhtiar Khan
…Petitioner(s)
Versus
Sarfraz Khan & another
…Respondent(s)
For the Petitioner(s):
Mr. Asad Ullah Khan Chamkani, ASC
For the State:
Malik Akhtar Hussain Awan,
Assistant Advocate General KPK along
with Kabir, I.O.
Date of hearing:
06.08.2020.
ORDER
Qazi Muhammad Amin Ahmed, J.- Akbar Khan, Wattey,
Alamzaib, Khawaja Muhammad, Hidayat Ullah and Misbah Ullah were
on way to attend proceedings in a Court of Session when the petitioner
along with co-accused intercepted them at 7:30 a.m. on 13.8.2003
within the precincts of Police Station Batgram District Charsadda; in
the wake of indiscriminate firing, the vehicle boarded by the deceased
plunged into the nearby canal; none survived the assault; he stayed
away from law for considerable span of time and surrendered after
acquittal of some of the co-accused on the strength whereof he sought
bail albeit with no success.
2.
Heard. Record perused.
3.
Acquittal of some of the co-accused, has not been received
as a valid ground for petitioner’s release on bail, both by the Court of
Session as well as the High Court, a view found by us as
unexceptionable. Statements of the witnesses supported by medical
Criminal Petition No. 692 of 2020
2
evidence and recovery from the spot constitute “reasonable grounds”
within the contemplation of section 497 of the Code of Criminal
Procedure 1898, aggravated by petitioner’s inordinate absence going on
for an age, standing insurmountably in impediment to his release on
bail, a concession discretionary in nature. View taken by the High
Court, being well within the bounds of law, does not call for
interference. Petition fails. Leave declined.
Judge
Judge
Islamabad, the
6th August, 2020
Not approved for reporting
Azmat/-
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
MR. JUSTICE SYED HASAN AZHAR RIZVI
CRIMINAL PETITION NO. 701 OF 2023
(On appeal against the order dated 29.05.2023 passed
by the Lahore High Court, Lahore in Crl. Misc. No.
12514-B/2023)
Ch. Saeed Ahmed Khalil
… Petitioner
Versus
The State etc
… Respondents
For the Petitioner:
Malik Jawwad Khalid, ASC
Mr. Muhammad Sharif Janjua, AOR a/w
petitioner in person
For the State:
Mirza Abid Majeed, DPG
Mr. Ashgar Ali, SI/IO
Mr. Ahsanullah, SI, Incharge Investigation
For the Complainant:
Mr. Muhammad Javed Ch, ASC
Date of Hearing:
11.08.2023
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 29.05.2023 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. 464 dated 18.03.2020 under
Sections 420/468/471 PPC at Police Station Shalimar, Lahore, in the interest
of safe administration of criminal justice.
2.
Briefly stated the prosecution story as narrated in the crime
report is that the petitioner’s son namely Furqan Saeed was employed in the
complainant’s factory wherein the spare parts of the motorbikes were
manufactured and its scrap was used to be sold in the market. The said
Furqan Saeed used to take scrap from factory and got it weighed. Allegedly,
he used to get two receipts, one of full weight and the second of lesser
weight and despite receiving full amount used to deposit less amount to the
Criminal Petition No. 701/2023
2
factory. On suspicion, the record was checked and the son of the petitioner
was found to have caused a loss of Rs.700,00,000/- to the complainant. The
petitioner has been implicated through a supplementary statement of the
complainant recorded on 26.06.2023.
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 petitioner was not named in
the FIR and the subsequent story put forth by the complainant in his
supplementary statement recorded after three months of lodging of FIR does
not appeal to a prudent mind. Contends that the principal accused namely
Furqan Saeed has been granted post-arrest bail by the court of competent
jurisdiction, therefore, following the rule of consistency, the petitioner also
deserves the same treatment to be meted out.
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 in the
supplementary statement with a specific role of depriving him of a huge
amount, 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 complainant is the
CEO of Yousaf Engineering (Pvt) Ltd where spare parts of motorcycle are
manufactured and its scrap is sold to the scrap dealers. The son of the
petitioner namely Furqan Saeed was servant of the complainant, who had
been taking scrap to get it weighed and later sold to scrap dealer. Allegedly,
the said Furqan Saeed used to obtain two receipts, one of full weight and the
later of less weight and used to deposit the amount in factory in accordance
with the receipt of less weight and thereby caused a loss of Rs.700,00,000/-
to the complainant. We have noted that the complainant nominated the
present petitioner and his other family members in his supplementary
Criminal Petition No. 701/2023
3
statement recorded on 26.06.2023 after lapse of more than three months
and eight days of the occurrence. A bare perusal of the record depicts that
the entire fraudulent transaction took place in a span of more than two years
and no specific dates for commission of fraud have been given. The only basis
to involve the petitioner in the case was the detail of his bank account, as the
complainant suspected that the principal accused Furqan Saeed would have
deposited the amount in petitioner’s account. It is the case of the petitioner
that his son Furqan Saeed was running a joint business with the complainant
and he never received any salary from him. We have been informed that the
co-accused of the petitioner namely Mst. Nighat Saeed, Waqas Zafar and
Usman Saeed have been granted pre-arrest bail whereas the principal
accused Furqan Saeed has been granted post-arrest bail by the court of
competent jurisdiction. In these circumstances any order by this Court on any
technical ground that the consideration for pre-arrest bail and post-arrest
bail are entirely on different footing would be only limited upto the arrest of
the petitioner 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). 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. Mere fraud of huge amount is no ground to decline bail to
an accused. 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). 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. So far as the argument of the
learned counsel for the complainant that another case of similar nature has
been registered against the petitioner is concerned, mere registration of
Criminal Petition No. 701/2023
4
other criminal case against an accused does not disentitle him for the grant
of bail if on merits he has a prima facie case. Reliance is placed on Moundar
and others Vs. The State (PLD 1990 SC 934). 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.
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 27.07.2023.
JUDGE
JUDGE
Islamabad, the
11th of August, 2023
Approved For Reporting
Khurram
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
MR. JUSTICE SYED HASAN AZHAR RIZVI
CRIMINAL PETITION NO. 714 OF 2023
(On appeal against the order dated 04.05.2023
passed by the Islamabad High Court, Islamabad
in Crl. Misc. No. 531-B/2023)
Noman Khaliq
… Petitioner
Versus
The State and another
…Respondent(s)
For the Petitioner:
Mr. Asad Mehmood Abbasi, ASC
Syed Rifaqat Hussain Shah, AOR
For the Complainant:
In person
For the State:
Mr. Rifaqat Ali Khokhar, ASC as state counsel ICT
Mr. Muhammad Ishaq, Inspector
Date of Hearing:
11.08.2023
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 04.05.2023 passed by
the learned Islamabad High Court, Islamabad, with a prayer to grant post-
arrest bail in case registered vide FIR No. 372/15 dated 08.10.2015 under
Section 489-F PPC at Police Station Industrial Area, Islamabad, in the
interest of safe administration of criminal justice.
2.
Briefly stated the allegation against the petitioner is that he
had business relations with the complainant. The complainant gave an
amount of Rs.29,00,000/- to the petitioner for doing business on the
pretext that whatever profit he will earn, he will share half of the same
with the complainant. Allegedly, the petitioner earned a profit of
Criminal Petition No. 714/2023
-: 2 :-
Rs.800,000/- and considering the half of the same to be of the
complainant, the petitioner owed an amount of Rs.33,00,000/- to the
complainant. The petitioner gave three cheques to the complainant for
the said amount but they were dishonoured on presentation 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 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 even if the claim of the complainant is believed, even then
at the most he can file a civil suit for recovery of the amount. Contends
that the petitioner is behind the bars for the last about five months and his
further incarceration would not serve any purpose. 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
complainant in person 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 08 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 petitioner and
the complainant had business relations. The complainant gave an amount
of Rs.29,00,000/- to the petitioner for doing business on the pretext that
whatever profit he will earn, he will share half of the same with the
complainant. Allegedly, the petitioner earned a profit of Rs.800,000/- and
considering the half of the same to be of the complainant, the petitioner
owed an amount of Rs.33,00,000/- to the complainant. The petitioner
Criminal Petition No. 714/2023
-: 3 :-
gave three cheques to the complainant for the said amount but they were
dishonoured on presentation to the Bank. However, it is the stance of the
petitioner that the cheques were not issued towards repayment of loan or
fulfillment of an obligation and the same were issued in respect of the
joint business. Admittedly, the petitioner and the complainant were in
business relations. This Court in the case of Abdul Saboor Vs. The State
(2022 SCMR 592) has categorically held that Section 489-F of PPC is not a
provision which is intended by the Legislature to be used for recovery of
an alleged amount, rather for recovery of any amount, civil proceedings
provide remedies, inter alia, under Order XXXVII of CPC. In this view of the
matter, 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 petitioner is behind the bars
for the last about five months. 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. Reliance is placed
on Tariq Bashir Vs. The State (PLD 1995 SC 34). 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 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. 714/2023
-: 4 :-
7.
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.500,000/- with one surety in the like amount to the satisfaction of
learned Trial Court.
JUDGE
JUDGE
Islamabad, the
11th of August, 2023
Approved For Reporting
Khurram
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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 NO. 715 OF 2021
(On appeal against the order dated 21.06.2021 passed
by the Lahore High Court, Lahore in Crl. Misc.No.18050-
B/2021)
Muhammad Usman Shakir
… Petitioner
VERSUS
The State etc
… Respondents
For the Petitioner:
Mr. Javed Imran Ranjha, ASC
For the State:
Mirza Abid Majeed, DPG
Mr. Tariq, Inspector
For the Complainant:
Nemo
Date of Hearing:
09.09.2021
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. 103/2021 dated 06.02.2021 under Section
408 PPC at Police Station Defence-B, District Lahore. The same relief
was denied to him by the learned Trial Court vide order dated
08.03.2021 as well as by the learned High Court vide impugned
order dated 21.06.2021.
2.
Briefly stated the facts of the matter are that the
petitioner was working as Accounts Assistant in M/s Nippon Paint.
The said company was running a scheme under which after opening
a paint box, a token of certain amount would come out and on its
return, the Company would re-pay the amount to the holder of the
token. Pursuant to an audit report, it was found that the petitioner
instead of entering the tokens in the computer system sent them
back for redemption in the market due to which a loss of about forty
million rupees was caused to the company.
Criminal Petition No. 715/2021
2
3.
Learned counsel for the petitioner argued that the
petitioner has been falsely roped in this case against the actual facts
and circumstances of this case. Contends that the prosecution has
leveled allegation of fraud to the tune of rupees forty million but
could not adduce any evidence in this regard except the bald
statements of three shopkeepers recorded under Section 161 Cr.P.C
at a belated stage. Contends that the prosecution has not
substantiated sufficient material so far against the petitioner
whereas co-accused of the petitioner with similar role has already
been granted bail by the learned High Court vide order dated
01.04.2021. Further contends that following the rule of consistency,
the petitioner also deserves to be released on bail. Lastly contends
that the petitioner is behind the bars since 16.02.2021 without any
trial, hence, keeping in view the principle that basic law is bail not
jail, the petitioner is entitled to be released on bail in the interest of
justice.
4.
On the other hand, learned Deputy Prosecutor General
has defended the impugned order whereby post-arrest bail was
declined to the petitioner. He contended that the petitioner along
with his co-accused has caused a huge loss to the company and he
is specifically named in the crime report with the specific role,
therefore, he does not deserve any leniency by this Court.
5.
We have heard the learned counsel for the parties and
perused the record with their able assistance.
There are basically two main ingredients to attract the
provisions of Section 408 PPC, (i) entrustment of property, (ii)
misappropriation with mens rea. A plain reading of the aforesaid
provision of law clearly reflects that the words ‘clerk’ or ‘servant’
have been mentioned in it. To establish criminal liability against an
employee other than incorporated in the aforesaid provision, it
seems essential to establish that the person against whom the
accusation has been leveled clearly falls within the categories
disclosed by the Legislature. Even while stretching the aforesaid
provision of law, we deem it appropriate to evaluate the merits of the
case, which could be a decisive factor in adjudication of the matter.
Undeniably, the allegation against the petitioner is of causing huge
loss of rupees forty million to the company by re-selling the tokens in
Criminal Petition No. 715/2021
3
the market, which were already redeemed. To substantiate the
allegation, the prosecution has recorded the statements of three
shopkeepers. Allegedly, the tokens amounting to Rs.11,00,000/-
and a cash amount of Rs.200,000/- was recovered from the
petitioner. Unless and until the nexus between the amount recovered
from the petitioner and loss occurred is established with exactitude
especially when the contents of the crime report do not disclose the
denomination/value and number of tokens utilized for causing loss
to the company, the petitioner cannot be held guilty and kept behind
the bars. Mere statements of three shopkeepers prima facie do not
seem sufficient to curtail the liberty of a person for an indefinite
period especially when the co-accused of the petitioner namely
Abdul Rehman Khalil from whom the tokens of Rs.12,00,000/- were
recovered has been granted bail by the learned High Court vide
order
dated
01.04.2021.
Keeping
in
view
the
facts
and
circumstances of this case, the petitioner is also entitled for the same
relief following the rule of consistency. Reliance is placed on the case
reported as Muhammad Fazal @ Bodi Vs. The State (1979 SCMR 9)
wherein this Court held as under:-
“Without going into the merits of the case and the
various rulings mentioned in the petition for leave to
appeal
requiring
our
consideration
and
interpretation, we think that the petitioner should
be released on bail on the principle of requirement
of consistency in the same case and for the similar
reason that the co-accused to whom a role similar
to that of the petitioner was attributed had been so
released by another learned Judge of the same
High Court.”
6.
Prima facie there are sufficient grounds to take into
consideration that the case of the petitioner is fully covered by
Section 497(2) Cr.P.C. calling for further inquiry to his guilt. The
alleged offence also does not fall within the prohibitory clause of
Section 497 Cr.P.C. The petitioner is behind the bars since
16.02.2021 and no useful purpose would be served by keeping him
behind the bars for an indefinite period till the conclusion of the
lengthy trial.
7.
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
Criminal Petition No. 715/2021
4
admit the petitioner 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 September, 2021
Approved For Reporting
Khurram
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mushir Alam
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.716 of 2019
(against
the
impugned
order
dated
13.6.2019 passed by the Lahore High Court
Lahore in Crl. Misc.No.14549-B/2019).
Husnain Mustafa
…Petitioner(s)
VERSUS
The State and another
…Respondent(s)
For the Petitioner(s)
: Ms. Bushra Qamar, ASC
Syed Rifaqat Hussain Shah, AOR
For the State
: Mr. Muhammad Jaffar,
D.P.G. Punjab.
Akram and Tanvir, Sub-Inspectors.
Date of Hearing
: 12.09.2019.
O R D E R
Qazi Muhammad Amin Ahmed, J.- Muhammad
Zain-ul-Abideen, 9/10, Kaniz Fatima, 7/8 and Muhammad
Ibrahim, 4/5 were living with their mother Aneeqa Rasheed
after termination of her marriage with their father Qaisar Amin,
shifted at Karachi for good; on 24-3-2018, he learnt about
homicidal deaths of his children in the residential flat of his
former wife; he rushed to Lahore and lodged a report wherein
he blamed Aneeqa Rasheed and Husnain Mustafa, present
petitioner, to have killed the children; he maintained that his
former wife was carrying on with the petitioner and they
wanted to get rid of the children, seemingly an obstruction in
their
affair.
As
the
investigation
progressed,
the
first
Investigating Officer let off the petitioner albeit with finding of
his liaison with Aneeqa Rasheed; after change of investigation,
however, the petitioner alongside Aneeqa Rasheed and Ayyaz
Mehmood
were
sent
to
face
trial;
subsequently,
the
Criminal Petition No.716 of 2019
2
complainant exonerated Aneeqa Rasheed; she was released on
bail on the basis of a concessionary statement made by no
other than the complainant himself; it was subsequent thereto
that she instituted a private complaint against the petitioner
and Ayyaz Mehmood co-accused wherein she blamed both of
them to have committed the murders within her view; she also
contradicted the case set up in the crime report by accusing
the police to have collaborated with the accused; unimpressed
by the position taken by Aneeqa Rasheed, learned Additional
Sessions Judge, after recording precursory evidence, dismissed
the complaint vide order dated 23-5-2019. In this backdrop,
prosecution case is structured upon a positive polygraph test
of the petitioner alongside statements of Muhammad Waseem
Abbas and Ali Zaib recorded as late as on 9-7-2018; they
claimed to have seen the petitioner on the crime scene in the
morning of 24-3-2018; the complainant arrayed Ayyaz
Mudassir as privy to the crime in supplementary statement
dated 10-7-2018.
2.
Heard.
3.
Brutality inflicted upon the innocent souls is most
appalling to say the least, however, in the chequered
circumstances of the case, what cannot be lost sight of is that
the complainant, though most grievously aggrieved and
devastated, nonetheless, is not eye witness of the crime; his
initial belief that the petitioner in connivance with his former
wife murdered the children is essentially structured upon a
suspicion; he has even recalled a substantial portion thereof
while exonerating identically placed Aneeqa Rasheed before a
learned Additional Sessions Judge at Lahore on 19-12-2018.
Subsequently inducted co-accused Ayyaz Mehmood, with
alleged active participation in the crime is on bail. Polygraph
test, a modern forensic method to unearth the truth, may
establish a person’s capacity to lie, however, findings thereof,
cannot be equated with admission of guilt. Transposition of
Aneeqa Rasheed as a witness with her failure to prosecute the
Criminal Petition No.716 of 2019
3
petitioner
through
a
private
complaint
constitutes
her
departure from the scene and as such squarely brings his case
within the ambit of subsection 2 of section 497 of the Code of
Criminal Procedure, 1898. Statements of Waseem Abbbas and
Ali Zaib recorded after an unexplained, inordinate delay also
require evidential verification during the trial. Horrors of an
heinous crime cannot impede release of accused on bail, if
otherwise his guilt called for further probe nor bail can be
withheld as a strategy for punishment. The petition is
converted into an appeal and allowed; petitioner shall be
released on bail 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.
JUDGE
Islamabad, the
12th September, 2019
Azmat/*
JUDGE
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
MR. JUSTICE JAMAL KHAN MANDOKHAIL
CRIMINAL PETITION NO. 717 OF 2023
(On appeal against the order dated 11.05.2023
passed by the Lahore High Court, Lahore in Crl. Misc.
No. 27358-B/2023)
Zafar Nawaz
… Petitioner
Versus
The State and another
…Respondent(s)
For the Petitioner:
Syed Muhammad Saqlain Rizvi, ASC
Syed Rifaqat Hussain Shah, AOR
For the State:
Mirza Abid Majeed, DPG
Mr. Muhammad Asif, SI
Date of Hearing:
22.08.2023
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 11.05.2023 passed by the learned
Lahore High Court, Lahore, with a prayer to grant post-arrest bail in case
registered vide FIR No. 1155 dated 22.10.2021 under Section 489-F PPC at
Police Station Samanabad, District Lahore, in the interest of safe
administration of criminal justice.
2.
Briefly stated the prosecution story as narrated in the crime
report is that the petitioner was tenant of the complainant and did not pay
rent for the period of one and half year. When the complainant demanded
rent from the petitioner, he issued him a cheque amounting to
Rs.16,50,000/- but the same was dishonoured on presentation 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
Criminal Petition No. 717/2023
-: 2 :-
the actual facts and circumstances. Contends that the cheque was not issued
towards repayment of loan or fulfillment of an obligation. Contends that
even if the claim of the complainant is believed, even then at the most he can
file a case before the Rent Controller for recovery of the rent. Contends that
the petitioner is behind the bars for the last about six months and his further
incarceration would not serve any purpose. 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 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 other
cases of similar nature have also been lodged 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 with their assistance.
6.
As per the contents of the crime report, the petitioner was
tenant of the complainant and allegedly did not pay rent for the period of
one and half year. When the complainant demanded rent from the
petitioner, he issued him a cheque amounting to Rs.16,50,000/- but the same
was dishonoured on presentation to the Bank. However, it is the stance of
the petitioner that for the same claim, the complainant had lodged two more
FIRs against the petitioner with an intent to extort money from him. It is
further his stance that nothing is payable by him and the amount of the
cheque in the present case is the bogus claim of the complainant.
Admittedly, the petitioner was tenant of the complainant and prima facie any
claim for recovery of rent falls within the domain of Rent Controller. In this
view of the matter, the question whether the cheque was 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 petitioner is behind the bars for the
last about six months. The maximum punishment provided under the statute
Criminal Petition No. 717/2023
-: 3 :-
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. Reliance is placed on Tariq Bashir Vs. The State
(PLD 1995 SC 34). 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
that other cases of similar nature have been registered against the petitioner
is concerned, mere registration of other criminal cases against an accused
does not disentitle him for the grant of bail if on merits he has a prima facie
case. Reliance is placed on Moundar and others Vs. The State (PLD 1990 SC
934), Muhammad Rafiq Vs. State (1997 SCMR 412), Syeda Sumera Andaleeb
Vs. The State (2021 SCMR 1227) & Nazir Ahmed @ Bhaga Vs. The State (2022
SCMR 1467). 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.
7.
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
Islamabad, the
22nd of August, 2023
Approved For Reporting
Khurram
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"url": ""
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1
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Crl.P.L.A. No. 724 of 2016
2
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Crl.P.L.A. No. 724 of 2016
3
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� �� �د ن� � ف�ا ِم�د�۔� �� �� � �� راد غاد روا � و �
٤۔ ح� � ٹ� �� � ہ�د ت�ر � � ر�ا � �ا� � �� ِ�و �
م�/ �� � � �و �� � �� �آ� � � � �� � � �د � زا� � سا � م� � � ن�
را� روا � ت� �� � ��آ �ذ � �� � �د � � ر� ��ز � � �ر � �� �
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� �� ہا� ِر� �� ِ�� ِنارود � سا �د � ��ز � ل� را� � � � �� ۔� د��
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ا �� ۔ ے� ب�ا � � �� �� � �� � � ا� � � � سا � �� �
�ا�� � �� � ��ا � � ے�� روا ��ر �د � � � �� �ذ � � ں� ۔� � �
م� � �� ت�ر ل� � ل� ں� � نا � ں�� ��� � � � � ىرو�
��� � م� ےر� � �و � �� � ما� � � � چ� �ور ںوڑو� � � �اڈ �
� ۔�آ � � �� � � �� را��در�ا � ں� نا �ا � � � چ� � م�ر ہد� ادا
� ن�� �ا ا�� �� �� ��د � م� �ا� روا ف�ا � � �� ۔ � ��ا ى� � �
�ا ر�� � � ك� �� ��ا � � ا� �� � �اد �ا�� �� ف� � � روا �
Crl.P.L.A. No. 724 of 2016
4
� � � � �ر � � �� ىر� ا� � � �� � � �� سا �� د� زا �رذ � � ہر�ود
۔�� � �� �
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۔� �� � د� ��ا
٧۔ �� � ھ� � �ا� � �� روا۔�
�
�
�آ م�ا،د٦� ٢٠١٦� (ر� � � ��ا)
�و �ا
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
MR. JUSTICE MAQBOOL BAQAR
MR. JUSTICE MUNIB AKHTAR
MR. JUSTICE QAZI MUHAMMAD AMIN AHMED
Criminal Petition No.73-P of 2021
(On appeal against the judgment dated 19.03.2021
passed by the Peshawar High Court Peshawar in
Cr. Misc. B.A. No.663-P/2021)
Abdul Razzaq
… Petitioner
Versus
The State
… Respondents
For the Petitioner
:
Syed Abdul Fayaz, ASC
For the State
For the Complainant
:
:
Mr. Shumail Aziz,
Advocate General, KP with Zahid, I.O.
In person.
Date of Hearing
:
17.09.2021
ORDER
Qazi Muhammad Amin Ahmed, J. – Zahid Shah,
18/19, was spotted dead on 17.1.2021 within the precincts of
Police Station Landi Kotal, District Khyber; his uncle Shoqi
Muhammad reported the incident to police without mentioning the
accused or motive for the crime. Autopsy conducted at 10:45 a.m.
on 18.1.2021 noted two firearm entry wounds on the skull,
inflicted within the preceding 9 to 18 hours; as the investigation
progressed, the petitioner was hauled up as a suspect on the basis
of statements of Iqrar Hussain and Roman PWs, recorded as late
as on 29.1.2021; according to the witnesses, the petitioner had
borrowed a .30 caliber pistol which he subsequently returned to
them; the pistol was produced by the witnesses to the police and it
was forensically found wedded with the casings, secured from the
spot. The High Court considered the evidence, sufficient to
Cr.P.73-P/2021
2
constitute “reasonable grounds” and declined bail vide impugned
order dated 19.03.2021.
2.
Heard. Record perused.
3.
Be that as it may, the question as to whether .30
caliber pistol presented to the police by the prosecution witnesses,
shown to have ejected casings of the fatal shots can be attributed
to the petitioner so as to conclusively saddle him with the
culpability of crime in the absence of any other evidence is
certainly an issue that needs to be settled after recording of
evidence. In the school leaving certificate, petitioner’s date of birth
is recorded as 6.9.2004, bringing his status within the remit of
juvenility with concomitant concessions available to him under the
law. Even otherwise, investigation being complete, petitioner’s
continuous detention is not likely to improve upon prosecution’s
case; a case for his release on bail stands made out. Petition is
converted into appeal and allowed; the petitioner/appellant shall
be released, pending his trial, 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.
JUDGE
JUDGE
JUDGE
Islamabad, the
17th September, 2021
Azmat/*
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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. 733-L OF 2018
(On appeal against judgment dated 25.04.2018
passed by the Lahore High Court, Lahore in
Criminal Appeal No. 65533/2017)
Barkhurdar
… Petitioner
VERSUS
The State and another
… Respondents
For the Petitioner:
Rai Zamir-ul-Hassan, ASC
(Through video link from Lahore)
For the State:
Mr. Irfan Zia, DPG, Punjab
Date of Hearing:
09.06.2023
JUDGMENT
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- The petitioner was proceeded
against in terms of the case registered vide FIR No. 69 dated 27.04.2017
under Section 9(c) of the Control of Narcotics Substances Act, 1997 at
Police Station Kandiwal, District Chiniot as ten kilograms poppy plant was
recovered from him. The learned Trial Court vide its judgment dated
14.07.2017 convicted the petitioner under Section 9 (c) of the CNSA, 1997,
and sentenced him to rigorous imprisonment for eleven years with fine of
Rs.15,500/- or in default whereof to further undergo SI for eight months.
Benefit of Section 382-B Cr.P.C. was also extended in his favour. The
learned High Court vide impugned judgment maintained the conviction
and sentence recorded by the learned Trial Court.
2.
The prosecution story as narrated in the impugned judgment
reads as under:-
Criminal Petition No. 733-L/2018
2
“2.
The prosecution story as alleged in the FIR lodged on the
written complaint of Rashid Hassan, ASI (PW-2), the complainant is
that on 27.04.2017, the complainant (PW-2) along with Jaffer Ali
219/C (given up PW), Jaffer Ali 220/C (PW-3) and Saba Hussain
500/High Court (given up PW) was present at Thatha Sargana in
connection with patrolling, in the meanwhile, the complainant (PW-
2) received a secret information that the accused-Barkhurdar while
carrying poppy plants, was coming towards Jhanda Burj from chowk
Sheraykianwala and if a raid was conducted, the accused-
Barkhurdar could have been apprehended, whereupon the
complainant along with police party reached at the spot and
overpowered the accused-Barkhurdar. During search, poppy plants
weighing 10 kilograms were recovered from the sack, which was
taken into possession by the complainant (PW-2) vide recovery
memo (Ex.PB). Out of the recovered substance, a sample of poppy
plants weighing 500 grams was separated for narcotic analysis by
embossing a seal of BH. Thereafter, the complainant (PW-2) drafted
a complaint (Ex.PA/1) and sent the same to the police station
through Saba Hussain 500/High Court (given up PW) for registration
of formal FIR.”
3.
At the very outset, learned counsel for the petitioner
contended that the petitioner has been falsely implicated in this case and
the Police has planted a fake case upon him. Contends that the allegedly
recovered poppy straw is largely used for fodder of animals, therefore,
it should not be considered as narcotics substance. In support of the
argument, he relied on Zulfiqar @ Zulfa Vs. The State (2021 SCMR 531).
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.
4.
On the other hand, learned Law Officer supported the
impugned judgment. He contended that the petitioner was caught red
handed with a huge quantity of narcotics and the Police had no enmity
with him to falsely implicate him in the present case, therefore, he
deserves no leniency from this Court.
5.
We have heard learned counsel for the petitioner as also
learned Law Officer and have perused the case record.
Criminal Petition No. 733-L/2018
3
6.
As per the prosecution story, on a spy information that the
petitioner is carrying a huge quantity of narcotics, the Police party set a
blockade and apprehended the petitioner and recovered poppy plants
weighing ten kilograms from him. However, there is nothing in evidence as
to what actually was recovered from the possession of the petitioner. Was
it only the doda/basket/pouch or it was the whole plant with stems and
flowers. In Zulfiqar @ Zulfa Vs. The State (2021 SCMR 531) this Court while
relying on earlier judgments of this Court has defined as to what actually is
the poast/opium. It would be in order to reproduce the relevant portion of
the judgment, which reads as under:-
“In Section 2(t) of the Control of Narcotics Substances Act, 1997,
‘opium’ has been defined as under:-
“(t) “opium” means:-
(i)
poppy straw, that is to say, all parts of the poppy plant
(papaver somniferum or any other species of Papaver)
after mowing, other than the seeds,
(ii)
the spontaneously coagulated juice of capsules of poppy
which has not been submitted to any manipulations
other than those necessary for packing and transport;
and
(iii)
any mixture, with or without natural materials, of any of
the above forms of opium, but does not includes any
preparation containing not more than 0.2 per cent of
morphine;”
7.
As per definition clause of CNSA, after mowing, all parts of the
poppy plant except seeds are considered to be poppy straw.
However, this Court in the case reported as Taimoor Khan Vs. State
(2016 SCMR 621) while referring to earlier judgment of this Court
reported at Muhammad Imran v. The State (2011 SCMR 1954) has
held that it is only the basket, sack or pouch (also known as ‘Doda’)
excluding the seeds, which contains narcotic substance and that all
poppy straw may not necessarily be ‘poast’/doda because poppy
straw can be any other part of the mowed poppy plant as well,
excluding the seeds. It would be advantageous to reproduce the
relevant portion of the said judgment, which reads as under:-
“What exactly is that which is called 'Poast'?
It has been agreed before us by the learned counsel for all the
parties and it is also borne out from the authoritative works
referred to above that in the local parlance Poast is the name
given to that part of a poppy plant which has the shape of a
basket, sack or pouch and it contains the seeds of such plant.
Criminal Petition No. 733-L/2018
4
This natural pouch or bulb made of the skin of the plant is meant
by the nature to hold and protect the seeds of the plant
contained therein. In some parts of this country this natural
pouch of the poppy plant is also known as Doda. The Control of
Narcotic Substances Act, 1997 calls this part of a poppy plant as
'capsule' of poppy and this finds a specific mention in section
2(t) (ii) of the said Act. The authoritative works mentioned above
as well as the learned counsel for all the parties before us are
also in agreement that if an unripe capsule of a poppy plant is
given an incision then a fluid oozes out of the same containing
meconic acid and a number of alkaloids including narcotine and
morphine which fluid thickens within a short time and becomes
brown in colour and such substance is pure opium. It is also
agreed at all hands that even ripe and dry capsules of poppy
contain morphine and other alkaloids, i.e. opium, although less
in quantity, which can be used for sedative and narcotic action.
Most of the authoritative works produced by the learned
counsel for the parties also confirm that alkaloids can be
extracted even from a mature and dry plant of poppy or poppy
straw whether it is in its natural shape or is in a crushed form.
However, the seeds contained in a capsule of a poppy are free
from morphine. After its mowing every part of a poppy plant,
including its capsule/Poast/Doda but excluding the seeds, is
generally called poppy straw and, thus, every Post/Doda is a
part of a poppy straw but all poppy straw may not necessarily
be Poast/Doda because poppy straw can be any other part of
the mowed poppy plant as well, excluding the seeds.
8.
From the above, it is clear that ‘Poast’ is the name given to
that part of a poppy plant which has the shape of a basket, sack or
pouch and it contains the seeds of such plant.”
7.
In the Zulfiqar supra case, the Court further observed that in
common parlance, it has been seen that oftenly stems and leaves of the
poppy plants are used as animal food. The plant can reach the height of
about 1-5 meters (3-16 feet). The poppy plant is a spontaneous plant and
is often seen grown on roadsides. Poppy straw is derived from the plant
Papaver somniferum, which has been cultivated in many countries of
Europe and Asia for centuries. This has medicinal impact as well, which is
largely used as a tonic for wellness of nervous system. The purpose of its
cultivation was actually the production of poppy seeds. The latter is used
as a food stuff and as a raw material for manufacturing poppy-seed oil,
which is used for making various varnishes, paints and soaps etc.
Therefore, every cultivation of poppy straw unless it is proved that it is
made for the sole purpose of extracting narcotics after a proper method
cannot be considered a criminal act. It has also not been brought on
Criminal Petition No. 733-L/2018
5
record as to whether from the ten kilograms of the recovered poppy plant,
how much quantity was the sack/pouch/doda as it is only the
sack/pouch/doda which contains narcotic substance. Therefore, in
absence of such report, it is difficult to determine as to whether the case
against the petitioner falls within the purview of Section 9(a), 9(b) or 9(c)
of the Act. 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 to the right of benefit of the doubt. It is a well
settled principle of law that 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. 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.
However, as discussed above, in the present case the prosecution has
failed to prove its case beyond any reasonable shadow of doubt.
8.
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. The above are the detailed
reasons of our short order of even date.
JUDGE
JUDGE
JUDGE
Islamabad, the
9th of June, 2023
Not Approved For Reporting
Khurram
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1
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Crl.P.L.A. No. 748 of 2016
2
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Crl.P.L.A. No. 748 of 2016
3
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�او� � � �� � ظ� �ادد� ىر�� � تا�و�د ىر�� ہو � ےد �� �� � م�
� وُر � ن�� ن��� ن�� �� �� ے� � ت� � �� ��� � �ِ� � �ا �رذ � ہ�
�و� �ا� ا� ۔� �� �او �� �� � ر� ِر�ا � �ا� لا� �اورر� ِر�ا �ا �� �
� � � �� ِ�ا� روا ت�ا�ا ىرو� � � �� �� روا � � � �و� � � ��
�۔ �د � � �� ِ�و �� م� � � �ور زا � ہار � م� � ىرا� �ا�رد � ��
Crl.P.L.A. No. 748 of 2016
4
� � � �� � ٹو�ر � � � ن�� � ر� � ل�ُا � �� �َا � ف�ا ِم� ىرا�� ��
۔� �� �� � ت�� �ا�د ل�ُا � �� � � � � ��
� �ا� � �ا � ل�ا سا � ن�� روا ف�ا � � �ز � �ا � �� ِ�ا� ��
� � ل�ا �رد � تار�ا ا� �آ � � ر� � � � ��ا � � � ��� �� � � �
۔� �� � ب�ا � �� � تز�ا � �ا ِل� روا � �� � در � �ا�� � ��
۔� جر� �اد ض�
٨۔ ۔� �� � ھ� � �ا� �
�
�
�آ م�ا،د٦� ٢٠١٦� (ر� � � ��ا)
�و �ا
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Asif Saeed Khan Khosa
Mr. Justice Ijaz Ahmed Chaudhry
Criminal Petition No. 749-L of 2013
(Against the order dated 04.07.2013 of the Lahore High Court,
Lahore passed in Criminal Miscellaneous No. 1057-H of 2013)
Ali Muhammad
…Petitioner
versus
The State, etc.
… Respondents
For the petitioner:
Malik Muhammad Imtiaz Mahal, ASC
with the petitioner and Muhammad
Tariq present in person.
On Court's call:
Mst. Naseem Akhtar, alleged detenue
For respondent No. 2:
Muhammad Imran Khan, in person,
with the Station House Officer of
Police
Station
Qadirpur,
District
Jhang
For the State:
Mr.
Mazhar
Sher
Awan,
Additional
Prosecutor-General,
Punjab
with
Mahmood, Ahmed, S.I. and Mahmood
Hashmat, A.S.I./I.O.
Date of hearing:
19.07.2013
JUDGMENT
Asif Saeed Khan Khosa, J.: In compliance with this Court's
order dated 18.07.2013 the alleged detenue namely Mst. Naseem
Akhtar has been produced before the Court from the relevant Dar-ul-
Aman. Ali Muhammad petitioner and the two suitors of the alleged
detenue, i.e. Muhammad Imran Khan (respondent No. 2) and
Muhammad Tariq are also in attendance. Mst. Naseem Akhtar has
stated her age to be about twenty-eight years and admittedly Ali
Muhammad petitioner is her father whereas Muhammad Tariq
Criminal Petition No. 749-L of 2013
2
happens to be a maternal cousin of Mst. Naseem Akhtar.
Muhammad Imran Khan respondent claims that he had got married
to Mst. Naseem Akhtar on 14.05.2013 whereas Muhammad Tariq
maintains that Mst. Naseem Akhtar had got married to him on
25.12.2012 and that their marriage is still intact. This assertion of
Muhammad Tariq is accepted as correct not only by Ali Muhammad
petitioner but also by Mst. Naseem Akhtar who has categorically
and unequivocally stated before the Court that Muhammad Tariq is
the only person with whom she had contracted marriage which
marriage still subsists and that she had never contracted marriage
with Muhammad Imran Khan respondent. Mst. Naseem Akhtar has
clearly and vociferously stated that while living with her father
namely Ali Muhammad petitioner she was not in any kind of
confinement or under any restraint and that she wants to go back
and live with her father. We have been informed by the learned
counsel for the parties that Muhammad Tariq had lodged FIR No.
101 at Police Station Shah Nikdar, District Sargodha on 10.08.2013
for an offence under section 496-A, PPC in respect of an alleged
enticing away of Mst. Naseem Akhtar by Muhammad Imran Khan
respondent and the said criminal case is still under investigation of
the local police. We have also been apprised that on 26.06.2013
Mst. Naseem Akhtar had filed a suit for jactitation of marriage
against Muhammad Imran Khan respondent which suit is presently
pending before the learned Judge, Family Court, Sillanwali, District
Sargodha. In the said suit Mst. Naseem Akhtar has claimed that she
had never got married to Muhammad Imran Khan and that the said
Muhammad Imran Khan ought to be restrained from maintaining or
proclaiming that Mst. Naseem Akhtar is his lawfully wedded wife.
2.
The
relevant
facts
of
the
case
referred
to
above
unambiguously show that the alleged detenue namely Mst. Naseem
Akhtar is a grown up young lady who acknowledges Muhammad
Tariq as her lawfully wedded husband and refuses to accept
Muhammad Imran Khan respondent as her spouse. The said
categorical stand taken by Mst. Naseem Akhtar is also supported by
her father namely Ali Muhammad petitioner. In that backdrop
Muhammad
Imran
Khan
respondent
had
filed
Criminal
Criminal Petition No. 749-L of 2013
3
Miscellaneous No. 1057-H of 2013 before the Lahore High Court,
Lahore which petition had been filed under section 491, Cr.P.C. in
the nature of habeas corpus seeking recovery of Mst. Naseem Akhtar
from the custody of her father namely Ali Muhammad petitioner. On
the basis of an order of the Court Mst. Naseem Akhtar was
produced before a learned Judge-in-Chamber of the Lahore High
Court, Lahore on 01.07.2013 and on the said date the following
order had been passed by the Court:
"Mst. Naseem Akhtar, detenue, has been produced in the Court,
who submits that she had contracted marriage with Muhammad
Tariq on 15.12.2012 and the Nikahnama produced by the
petitioner Muhammad Imran is forged one as she had not
contracted marriage with him.
2.
Learned counsel for the respondents wants to place on
record
certain
documents
showing
that
the
petitioner's
Nikahnama is a fake document. Counsel shall submit document
on 04.07.2013.
3.
In view of two Nikahnamas existed on record, it would be
appropriate to send detenue to Dar-ul-Aman, Lahore, wherefrom
she shall be produced in the Court on date fixed."
On the next date of hearing, i.e. 04.07.2013 the learned Judge-in-
Chamber of the Lahore High Court, Lahore had disposed of the said
habeas corpus petition with the following order:
"On the basis of existence of two Nikahnama on record in respect
of Mst. Naseem Akhtar, she was lodged in Dar-ul-Aman, Lahore
so that in the appropriate proceedings genuineness of the
Nikahnamas could be adjudicated by the court of competent
jurisdiction.
2.
Learned counsel appearing on behalf of the respondents
submitted that Mst. Naseem Akhtar has filed a suit for jactitation
of marriage and she cannot be detained in the Dar-ul-Aman for
an indefinite period, rather her abode in the Dar-ul-Aman would
amount to illegal detention.
3.
This contention of the learned counsel is untenable for the
reason that the Court cannot allow a person to live in immoral life
and for this purpose she has been sent to Dar-ul-Aman to save
her from the commission of an offence. She would stay in the
Dar-ul-Aman till the time her suit for jactitation of marriage is
decided. In this respect a direction is issued to the learned family
Court concerned for deciding the suit of Mst. Naseem Akhtar
expeditiously by taking proceedings on day to day basis before
proceeding on summer vacations.
4.
Learned counsel for the petitioner has pointed out that the
mother of Mst. Naseem Akhtar by adopting a deceitful method is
also residing alongwith her daughter in the Dar-ul-Aman. If it is
so, the petitioner has the remedy before the Court upon whose
order the mother of the detenue had joined her in Dar-ul-Aman.
Criminal Petition No. 749-L of 2013
4
5.
With these observations, this petition is disposed of."
Ali Muhammad petitioner has approached this Court through the
present petition seeking release of his daughter namely Mst.
Naseem Akhtar from the relevant Dar-ul-Aman whereat she
presently stands lodged for an indefinite period as a result of the
impugned order passed by the learned Judge-in-Chamber of the
Lahore High Court, Lahore.
3.
It is evident from the facts of the present case that Mst.
Naseem Akhtar is a grown up young lady and she is not involved in
any criminal case as an accused person. Her consistent stand
before the Lahore High Court, Lahore and before this Court has
been that she was not in any kind of confinement or under any
restraint while living with her father. Although she has two rival
suitors yet she has expressed a clear desire before this Court that
she wishes to go and live with her father namely Ali Muhammad
petitioner. We have found it to be rather disturbing that despite her
eagerness to continue living with her father she had been deprived
of her liberty and ordered by the learned Judge-in-Chamber of the
Lahore High Court, Lahore to be lodged at a Dar-ul-Aman and that
too for an indefinite period. It is quite ironical and shocking that
habeas corpus proceedings before the Lahore High Court, Lahore,
which were meant to secure release of a person from an illegal or
improper custody or confinement, had been utilized in the present
case for depriving a free person of her liberty and the net result
achieved was that a grown up young lady who was not found to be
in any kind of confinement or under any restraint had been locked
up and incarcerated within the confines of a Dar-ul-Aman for an
indefinite period! Such an approach adopted and the result achieved
by the learned Judge-in-Chamber of the Lahore High Court, Lahore
surely ran contrary to the very essence and purpose of a writ or
petition for habeas corpus which is securing freedom and not
curtailing liberty. We are sure that the learned Judge-in-Chamber of
the Lahore High Court, Lahore would have done better if he had
sought guidance in this regard from various judgments handed
down by this Court on the subject from time to time. Some of such
Criminal Petition No. 749-L of 2013
5
foundational judgments are referred to by us in the following
paragraph.
4.
In the case of Muhammad Rafique v. Muhammad Ghafoor (PLD
1972 SC 6) it had been held by this Court as follows:
"Leave to appeal from the order of the High Court was
granted on 10.04.1970 to examine the legality of the direction
that Mst. Surraya Begum be given into the custody of the
respondent against her free will.
On hearing the learned counsel for the parties and taking
into consideration the provisions of sections 491, 561-A of the
Code of Criminal Procedure and the Fundamental Right 1 that
"No person shall be deprived of life or liberty save in accordance
with law"' the Court found no warrant in law for the direction
given by the learned Judge about the custody of Mst. Surraya
Begum.
Section 491, Cr.P.C., under which the High Court
exercised jurisdiction inter alia provides:
"491.—(i) Any High Court may, whenever it thinks
fit, direct—
(a)
that a person within the limits of its
appellate criminal jurisdiction be brought up
before the Court to be dealt with according to law;
(b)
that
a
person
illegally
or improperly
detained in public or private custody within such
limits be set at liberty;"
(The other clauses of the section are not relevant to
the present case).
The High court has two-fold jurisdiction under this section: (i) to
deal with a person within its appellate criminal jurisdiction
according to law; and (ii) to set him at liberty if he is illegally or
improperly detained. The question which falls for determination,
however, is that if the Court finds that the person brought before
it was not being illegally or improperly confined or detained what
order can be passed regarding the custody of that person.
If the person is a minor, the court may make over his
custody to the guardian which will be dealing with him in
accordance with law, but if the person is major, the only
jurisdiction which the court can exercise is to set him at liberty
whether illegally or improperly detained in public or private
custody or not. The court may "set at liberty", but cannot restore
status quo ante against the wishes of the person brought before it.
Such a course will lead to curtailment of liberty for which there is
no warrant under section 491 nor can such an order be sustained
under section 561-A of the Code as it cannot be said that allowing
a person freedom of movement is an abuse of the process of the
Court."
(underlining has been supplied for emphasis)
Criminal Petition No. 749-L of 2013
6
It had been held by this Court in the case of Muhammad Nazir v.
The SHO Police Station, Shahpur and 3 others (1973 SCMR 351) as
under:
"After hearing the learned counsel for the parties, we are satisfied
that the learned Single Judge could not hand over the custody of
the girl to A.S.I. Illaqa as no case has been registered against her.
The case was registered against Muhammad Amir and Shah Wali.
In such circumstance, no order could be passed against Mst.
Fatima Bibi. It is strange that the learned Single Judge did not
record the statement of the girl to find out whether she is major
or minor and handed over the custody of the girl to the Illaqa
Police for further investigation. This procedure is not warranted
by any provision of the Criminal Procedure Code or any other law.
The girl has appeared before us. Her statement has been
recorded. She is major and is married to Muhammad Saeed. She
wants to go with her husband. In these circumstances, the appeal
is allowed and Mst. Fatima Bibi is set at liberty to go with her
husband."
(underlining has been supplied for emphasis)
This Court had observed and held in the case of Mst. Sahi Bi v.
Khalid Hussain and 6 others (1973 SCMR 577) in the following
terms:
"After hearing the learned counsel for the parties, we are satisfied
that under the Mohammadan Law, a sui juris woman cannot be
forced to live with her husband against her wishes. Quranic
injunction is against it. According to the Mohammadan Law, if
there is disagreement between the husband and the wife, the wife
is entitled to live separately from her husband. In the present
case, there is disagreement between Mst. Irshad Begum and
respondent No. 1 and in such circumstance, she is entitled to live
with her mother.
The observation of the learned Single Judge of the High
Court that if Mst. Irshad Begum is set at liberty she will lead
immoral life is irrelevant for the decision of the case under section
491, Cr.P.C. Under section 491, Cr.P.C., if a sui juris detenue is
unwilling to go with her husband or guardian, the Court
cannot compel her to go with them. She must be set at
liberty and allowed to move freely. This position was made
clear in the above mentioned case decided by this Court
and the learned Single Judge should have set at liberty the
detenu and allowed her to move freely according to her
wishes".
(underlining has been supplied for emphasis)
5.
For what has been discussed above this petition is converted
into an appeal and the same is allowed, the impugned order passed
by the learned Judge-in-Chamber of the Lahore High Court, Lahore
on 04.07.2013 in Criminal Miscellaneous No. 1057-H of 2013 is set
Criminal Petition No. 749-L of 2013
7
aside and the detenue namely Mst. Naseem Akhtar is set at liberty.
She may go and live with her father namely Ali Muhammad
petitioner, as desired by her.
6.
Before parting with this judgment we may observe that we
have felt saddened by the fact that through the impugned order an
Hon'ble Judge of a High Court had allowed his responsibility of
protecting a citizen’s constitutional right to liberty to be
overshadowed by his own subjective sense of morality. In this
context we have found the following part of the impugned order to
be utterly unacceptable and, if we may say so with respect,
completely and unreservedly unpalatable:
“2.
Learned counsel appearing on behalf of the respondents
submitted that Mst. Naseem Akhtar has filed a suit for jactitation
of marriage and she cannot be detained in the Dar-ul-Aman for
an indefinite period, rather her abode in the Dar-ul-Aman would
amount to illegal detention.
3.
This contention of the learned counsel is untenable for the
reason that the Court cannot allow a person to live in immoral life
and for this purpose she has been sent to Dar-ul-Aman to save
her from the commission of an offence. She would stay in the
Dar-ul-Aman till the time her suit for jactitation of marriage is
decided.”
(underlining has been supplied for emphasis)
It is unfortunate that in his zeal and eagerness to prevent
commission of an imagined or apprehended sin/crime the learned
Judge-in-Chamber of the Lahore High Court, Lahore had not only
chosen to ignore the Divine command but had also decided to
disregard the constitutional mandate. God Almighty has forbidden
even leveling of an allegation of zina unless four eyewitnesses are
produced in support of such an allegation and if such number of
eyewitnesses are not produced then the person leveling the
allegation is to be whipped and flogged. In the present case the
learned Judge-in-Chamber had not even leveled an allegation but
had only imagined a possibility of commission of zina in future and
had then proceeded to punish the detenue by depriving her of her
liberty and putting her in the confines of a Dar-ul-Aman for an
indefinite period. In these indefensible circumstances, after having
been punished only for an imagined or apprehended sin, the
Criminal Petition No. 749-L of 2013
8
detenue has appeared to us to be, in the words of Shakespeare’s
King Lear, a woman "more sinned against than sinning". Apart from
that the Constitution of Pakistan mandates that the judgments of
this Court are binding on all other courts in the country but while
passing the impugned order the learned Judge-in-Chamber had
failed to follow the above mentioned, and many other, judgments
rendered by this Court on the subject. It may be true that during
the pendency of a petition filed in the nature of habeas corpus a
court can pass a rule nisi regarding interim custody of the alleged
detenue but it is unimaginable and unthinkable that after final
disposition of such petition the alleged detenue, who was otherwise
a free person, may be put to physical restraint or confinement for an
indefinite period and that too not on the basis of any concrete fact
or allegation but merely on the basis of an imagined possibility of
commission of a sin or a crime. The learned Judge-in-Chamber
ought to have known that it had been already been clarified by this
Court in the case of Muhammad Rafique (supra) that
“ ------- if the person is major, the only jurisdiction which the
court can exercise is to set him at liberty whether illegally or
improperly detained in public or private custody or not. The court
may "set at liberty", but cannot restore status quo ante against
the wishes of the person brought before it. Such a course will lead
to curtailment of liberty for which there is no warrant under
section 491 nor can such an order be sustained under section
561-A of the Code as it cannot be said that allowing a person
freedom of movement is an abuse of the process of the Court."
It appears that in the present case the learned Judge-in-Chamber of
the Lahore High Court, Lahore had transcended the legal
requirements applicable or relevant to the lis before him and had
decided to enter the realm of morality little appreciating that the
field chosen by him did not lie in his domain and it lied in a domain
which he ought to have consciously avoided to enter. The learned
Judge-in-Chamber ought to have remembered that in the case of
Mst. Sahi Bi (supra) this Court had already clinched this issue by
declaring as under:
"The observation of the learned Single Judge of the High Court
that if Mst. Irshad Begum is set at liberty she will lead immoral
life is irrelevant for the decision of the case under section 491,
Cr.P.C."
Criminal Petition No. 749-L of 2013
9
7.
The Office is directed to send a copy of this judgment to the
Registrar of the Lahore High Court, Lahore who may bring the same
to the notice of the Hon’ble Judge of the said Court who had passed
the order impugned through the present petition/appeal for his kind
information and perusal.
Judge
Judge
Lahore
19.07.2013
Approved for reporting.
Arif
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE IJAZ UL AHSAN
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
CRIMINAL PETITION NO. 75-Q OF 2021
(On appeal against the judgment dated 01.07.2021 passed
by the High Court of Balochistan, Quetta in Criminal
Appeal No. 31/2020)
Zahid son of Muhammad Ishaq
… Petitioner
VERSUS
The State
… Respondent
For the Petitioner:
Mr. Kamran Murtaza, Sr. ASC
For the State:
Mr. Baqir Shah, State counsel
Date of Hearing:
21.10.2021
ORDER
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Petitioner was proceeded
against in terms of the case registered vide FIR No. 43/2020 under
Sections 377-B/354/511 PPC at Police Station Noshki for sexually
abusing the daughter of the complainant and for using criminal force to
the complainant. The learned Trial Court vide its judgment dated
12.06.2021 convicted and sentenced the petitioner as under:-
i)
Under Section 377-B PPC
To suffer 5 years RI and to pay fine of Rs.500,000/- or in
default whereof to further suffer six months SI.
ii)
Under Section 354 PPC
To suffer 2 years RI.
Both the sentences were directed to run concurrently.
Benefit of Section 382-B Cr.P.C. was also extended to the
petitioner.
2.
In appeal, the learned High Court vide impugned
judgment, upheld the conviction and sentences recorded by the learned
Trial Court. Hence, this petition seeking leave to appeal.
3.
The facts of the case as given in the impugned judgment
are as under:-
“2.
Precise facts of the case are that on 27th March,
2020 case FIR No. 43 of 2020 under Sections 377-B, 354,
511 PPC was registered with PS Noshki on the report of
Mst. Najma wife of Ali Jan with the allegation that on
26.03.2020, at about 2:00 p.m. she sent her daughter
Criminal Petition No. 75-Q/2021
2
namely Shahida aged about 7 years to the shop for
bringing matchbox but she did not return whereupon she
herself went to the shop of Shafi Muhammad and asked
him about her daughter, who told that her daughter did
not come here, whereafter she searched her here and
there, in the meanwhile she heard hue and cry of her
daughter from the Baitak of her neighbor Zahid, as such
she knocked the door of the Baitak, whereupon accused
Zahid opened the door and she entered inside the room,
where her daughter was fully naked but Zahid did not
allow her to go ahead and attacked upon her and torn her
shirt and also threw away her minor child from her lap
thereafter she put clothes upon her daughter and went to
her house along with her daughter, where her daughter
Shahida told her that accused Zahid forcibly took her in
his Baitak, removed her clothes and attempted to give his
penis in her mouth.” The convict has done so even earlier.
4.
After completion of the investigation, a challan under
Section 173 Cr.P.C. was submitted before the Trial Court. The
prosecution in order to prove its case produced five witnesses. In his
statement recorded under Section 342 Cr.P.C the petitioner pleaded his
innocence and also produced three witnesses in his defence.
5.
Learned counsel for the petitioner contends that the FIR
was registered after a delay of more than 22 hours, which shows that
it was registered after deliberation and consultation to falsely frame
the petitioner in the picture. Contends that the learned courts below
have not appreciated the evidence in its true perspective and undue
weight was given to the prosecution witnesses despite glaring
contradictions. Contends that no independent witness was produced
by the prosecution and all the witnesses who appeared before the
Court are interested one. Contends that the medical evidence does not
support the ocular account as no sign of injury was seen on the body of
the victim. Lastly contends that the impugned judgment being contrary
to law and facts, the same may be set aside and the petitioner may be
acquitted of the charge.
6.
On the other hand, learned State counsel defended the
impugned judgment. He contended that the petitioner is involved in a
heinous offence and the evidence available on record is sufficient to
prove the case against him, therefore, he does not deserve any
leniency by this Court.
7.
We have heard learned counsel for the parties at some
length and have perused the evidence available on record.
Criminal Petition No. 75-Q/2021
3
In the instant case, the petitioner was proceeded against
in pursuance of the aforesaid crime report wherein serious allegations
are leveled against him. The most alarming allegation against the
petitioner is that he tried to sexually harass a young girl aged about 7
years, which is a very disgusting act. The petitioner was investigated
at length and was found involved as per accusation leveled in the
crime report. During the course of trial, the learned Trial Court after
taking into consideration all the facts and circumstances of the case
and the evidence available on the record convicted the petitioner as
stated above, which conviction and sentence was upheld by the
learned High Court. Today during the course of proceedings before us
we have carefully evaluated the testimonies of prosecution witnesses
i.e. Mst. Najma, complainant (PW-1) and Mst. Shahida Bibi (PW-2). The
whole prosecution case qua ocular account hinges upon the testimonies
of these two witnesses. Amongst these two witnesses Mst. Shahida
Bibi happens to be the victim of the occurrence. While making her
statement in Court, she has narrated the whole occurrence in a very
mature and natural manner touching the contents of the crime report
on all aspects without any disconnection. Although the victim was of
tender age, however, her statement depicts maturity of the highest
level, which is in consonance with the statement of Mst. Najma (PW-1),
who happens to be her mother. The victim has directly charged the
petitioner for sexually abusing her while detailing the acts committed
by him on the day of occurrence. She has further alleged that the
petitioner was in the habit of doing this even earlier to the present
incident. Although she was cross-examined at length but her statement
remained in line and was testified in the most natural style, which
reflects that whatever she has stated before the Court, she has stated
the truth. As far as the identity of the petitioner is concerned, there is
not an iota of doubt about his identity because he being the neighborer
of the victim was conversant with her. It is an apathy to mention that
such like cases are at the verge of rise in the society, which has to be
curbed with iron hands. Although in the instant case, the statement of
the victim is fully corroborated by the statement of PW-1 but law is
very clear about this that the statement of the victim in isolation itself
is sufficient for conviction if the same reflects that it is independent,
unbiased and straight forward to establish the accusation against the
accused. In a recent judgment reported as Atif Zareef Vs. State (PLD
Criminal Petition No. 75-Q/2021
4
2021 SC 550) this Court has categorically held that “rape is a crime
that is usually committed in private, and there is hardly any witness
to provide direct evidence of having seen the commission of crime by
the accused person. The courts, therefore, do not insist upon
producing direct evidence to corroborate the testimony of the victim if
the same is found to be confidence inspiring in the overall particular
facts and circumstances of a case, and considers such a testimony
of the victim sufficient for conviction of the accused person. A rape
victim stands on a higher pedestal than an injured witness, for an
injured witness gets the injury on the physical form while the rape
victim suffers psychologically and emotionally.” The victim had
specifically named the petitioner in his testimony before the Court
and had fully identified him. There was no previous enmity between
the parties, which could lead to false implication of the petitioner in
the present case. So far as the delay in lodging the FIR is concerned,
the learned High Court while relying on the judgment of this Court
reported as Zahid Vs. State (2020 SCMR 590) has rightly held that
in such like cases victims or their families are reluctant to come
forward to promptly report the crime because of the trauma that has
been suffered and they may have a perception of shame or
dishonour in having the victim invasively examined by a doctor,
therefore, the delay in reporting a sexual assault to the police is not
very material. So far as the argument of learned counsel that
according to medical evidence no sign of injury was found on the
person of the victim is concerned, the prosecution case is that the
petitioner had sexually abused the minor girl by firstly undressing
her and then by touching his genital organ on the chest of the victim
and he also tried to put his organ in the mouth of the victim. In such
eventuality when the victim was only of seven years old and did not
know as to what is happening with her and keeping in view the fact
that the petitioner was known to her previously, the victim may not
have resisted in front of the petitioner, therefore, mere non-
availability of any sign of injury is of no help to the petitioner. We
have perused the statements of the three defence witnesses
produced by the petitioner and could not find any credibility in the
same. The DWs only made general statements and did not mention
about the happening of the occurrence or anything related to the
occurrence. They even could not remember the date of the incident.
Criminal Petition No. 75-Q/2021
5
As far as the plea of the petitioner in his statement under Section
342 Cr.P.C. that the husband of the complainant (PW-1) was out of
country and in his absence different people would visit her house
and when she was forbidden, a quarrel took place between the
complainant and his mother and due to this reason he was
implicated in this case is concerned, suffice it is to say that no one
would defame her minor daughter only on some minor quarrel
because the honor of female daughter is always more precious for a
mother to take revenge on a trifle issue, therefore, the same appears
to be a concocted story just to save the skin.
8.
For what has been discussed above, this petition having
no merit is accordingly dismissed and leave to appeal is refused.
JUDGE
JUDGE
Islamabad, the
21st of October, 2021
Approved For Reporting
Khurram
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mushir Alam
Mr. Justice Qazi Faez Isa
Criminal Petition No.751 of 2017
Against the order dated 31.5.2017 passed by
High Court of Sindh, Sukkur in Cr. Jail Appeal
No.S-44 of 2009
Muhammad Juman
Petitioner(s)
VERSUS
The State & others
Respondent(s)
For the Petitioner(s)
: Mr. M. Amjad Iqbal Qureshi, ASC
Syed Rifaqat Hussain Shah, AOR
For the State
:
Mr. Zafar Ahmed Khan, Addl. PG.
Sindh
For the Respondent(s)
:
Mr.
Adil
Aziz
Qazi,
ASC
a/w
Respondents No.2-5
Date of Hearing
: 23.11.2017
ORDER
Mushir Alam, J- Muhammad Juman-Petitioner/Complainant has
impugned the order dated 31.5.2017 passed by the learned Bench of the
High Court of Sindh Bench, Sukkur whereby the accused nominated in
Crime No.30 of 2005 for an offence under sections 302,34,PPC registered at
Police Station Padidan, District Nausheroferoze, faced the trial, charge was
established and conviction was handed down by the learned trial Court
under section 302(b) PPC read with section 149 PPC and sentenced them
to suffer R.I for life as Ta’zir and to pay fine in the sum of Rs.50,000/- (fifty
thousand only) each, as compensation to the legal heirs of the deceased
Abdul Sattar with benefit of section 382-B Cr. PC.
2.
The conviction was challenged by the convicts the learned Bench of
the High Court vide impugned order dated 31.5.2017 while maintaining the
conviction under section 302(b) PPC reduced the sentence to already
undergone (i.e. respondent No.2 Gul Hassan served out twelve years
Respondents No. 3 to 5 namely Bahadur, Abdul Haque and Ali Hassan,
respectively having served out imprisonment for a period of eight years,
two months and twenty eight days at the time of impugned judgment)
Criminal Petition No.751 of 2017
2
and the appellant therein were ordered to be released forthwith, if not
required in any other case.
3.
It was contended by the learned counsel for the petitioner-
complainant that the learned High Court, while passing the order
impugned, did not consider that no case for mitigation and or reduction of
the sentence “already undergone” was made out. Once the conviction is
maintained under section 302(b) PPC the punishment provided is ‘death or
imprisonment for life as Ta’zir’ and nothing short thereof. According to him,
there is nothing on record to show that the learned Bench of the High Court
treated or converted the conviction recorded under section 302(b) PPC to
one under section 302(c) PPC wherein the Court could have reduced the
sentence of any magnitude less than life, provided circumstances were
shown to exist to mitigate the sentence. He therefore, prays for setting
aside of the impugned order and seeks direction to remand back the
Respondents No.2 to 5 to jail to serve out the sentence awarded by the
leaned trial Court.
4.
Learned Additional Prosecutor General, Sindh has no cavil to the
proposition recorded above, according to him without recording any
mitigating circumstances sentence could not have been reduced and that
too less than what is prescribed under section 302(b) PPC, without
converting the conviction to one under section 302(c) PPC .
5.
Learned counsel for the respondents No.2 to 5, submits that on the
merits it was a fit case for acquittal, and in alternate conversion of
sentence under section 302(c) PPC, which in substance was treated so by
the learned High Court. He however, concedes that the Court did not
record any mitigating circumstance to convert the sentence. It was urged
that since the respondents 2 to 5 are illiterate villager they were satisfied to
be released from jail on whatever terms and conditions. It was for such
reasons that the learned counsel then appearing before the Court had no
qualm to treat the sentence already undergone instead of contesting the
matter to earn acquittal and for converting the sentence under section
302(c) PPC, he submits that he has no objection if the matter is remanded
to the High Court with direction to hear the parties on merits and record the
finding accordingly.
Criminal Petition No.751 of 2017
3
6.
Learned counsel for the respondents No.2 to 5, submits that since the
respondents 2 to 5 have shown respect to the order of this Court and on
notice have surrendered and appeared before this Court, they have
already served out substantial sentence as already noted above. Jail
Petition was filed on 24.4.2009, which remained pending for considerable
period, till they were ordered to be released on 31.5.2017, therefore,
impugned sentence be suspended till decision of Jail Petition by the High
Court, in case conviction is maintained they would invariably be sent to jail
to serve out the remaining sentence. In case they earn acquittal or even
conversion of sentence under section 302(c) PPC, their lost liberty cannot
be compensated. Learned Advocate General, Sindh on such score and in
view of the peculiar facts and circumstances of case has no objection to
the suspension of sentence till the hearing and decision by the learned
Bench of the High Court. Learned ASC for the Petitioner, requests for
direction to decide the Jail Appeal at an early date.
7.
Heard the arguments and perused the record. Sentence is the
punishment recognized and prescribed under Pakistan Penal Code,
(section 54 PPC) to which the offender are liable and which could be
inflicted on a person, who is proved guilty of an act or omission (offence),
under the Pakistan Penal Code, at the trial, by the Court of competent
jurisdiction. Once a person is proved guilty of an offence, the Court trying
the offender looking at the gravity of offence, the manner in which offence
is committed and other attending circumstances may inflict any quantum
of the sentences as may be prescribed under the charging provision, it
cannot be less nor more than what is prescribed. Sentence inflicted within
the parameter prescribed by the law is ‘legal sentence’, which a Court of
law is competent to inflict. It is the only the appellate and or revisional
Court as the case may be, reverse the finding of conviction and or
sentence and acquit or discharge the accused, modify and or alter the
finding and or nature of conviction and quantum of sentence and any
consequential or incidental order that may be just, proper and adequate
(see sections 423, 439, 439-A Cr.P.C). Sentencing is one of the most
important and intricate task, which a criminal Court has to perform while
handing down a conviction after conclusion of a criminal trial. Inflicting
conviction and imposing sentence is not a mechanical exercise but it is
onerous responsibility to inflict, fair, reasonable and adequate sentence,
commensurate with gravity and or severity of crime, looking at the motive,
attending and or mitigating circumstances that provoked or instigated
Criminal Petition No.751 of 2017
4
commission of crime and it involves conscious application of mind. No
mathematical formula, standard or yard stick could be prescribed or set
out to inflict conviction and sentence, such factors vary from case to case
and while undertaking such exercise Court must keep in sight provisions
contained in Chapter-III and IV of the PPC. Unfortunately, no sentencing
guideline is laiddown in Pakistan, though Courts have set out certain
parameters in many cases as to what is mitigating and or aggravating
circumstances that may warrant alteration and or varying in conviction
and or sentence within the parameters of provided under the charging or
penal provision. For illustration one may see case of Ghulam Murtaza and
another versus The State (PLD 2009 Lahore 362), arising out of an appeal
under the CNS Act 1997, and is more than often cited for the purposes of
sentencing accused convicted under the Control of Narcotics Substances
Act of 1997, in cited case elaborate exercise has been undertaken to
prescribe sentencing an accused convicted of carrying or possessing
different types and quantity of contraband, in paragraph 10 thereof it was
held that “In 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.” One may also
see Ameer Zeb versus The State (PLD 2012 Supreme Court 380) and
Nadeem Ashraf versus The State (2013 SCMR 1538).
8.
Attending to the merits of case in hand in the light of above
discussion, the respondents 2 to 5 all were charged for an for “Qatl-e-Amd
of deceased Abdul Sattar under section 302 PPC read with section 149
PPC”. Punishment for Qatal-e-Amd is provided for under section 302 PPC as
follows:
“(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.”
Criminal Petition No.751 of 2017
5
In the instant case learned trial Court came to a conclusion that the
“Prosecution has proved its case against the accused persons namely Gul
Hassan, Bahadur, Abdul Haque, Ali Hassan beyond any shadow of
reasonable doubt. As regards the sentence, I think that since the accused
are of young age and also close relatives to each other, therefore, there
are mitigating circumstances to award lesser punishment. I, therefore,
convict the accused persons namely Gul Hassan, Bahadur, Abdul Haque,
Ali Hassan, for the offences punishable u/s 302(b) PPC Read with Section
149 PPC, and thereby sentence them to suffer S.I Imprisonment for Life as
Ta’zir and to pay a fine of Rs.50,000/- each as compensation to the legal
heirs of deceased Abdul Sattar.”.
9.
As noted above, learned trial Court came to a conclusion that
accused persons have committed an offence chargeable under section
302(b) PPC, which section provide either of the two legal sentences, viz.
“death” OR “imprisonment for life.” Learned trial Court considered ‘young
age of the accused’ and being close relative to each other” as mitigating
circumstances to award lesser of the two legal sentences provided under
section 302(b) PPC viz. “imprisonment for life” and not “with death”, the
maximum sentence as provided under the charging provision.
10.
As noted above, through impugned order, appellate Court while
maintaining the conviction under section 302(b) PPC modified the
sentence to “already under gone”, without application of mind and in a
mechanical fashion, as noted above, either of the two legal sentence for
an offence under section 302(b) PPC is provided viz. “death” OR
“imprisonment for life” and nothing in-between, shorter or greater. In case
the
Appellate
Court,
looking
at
the
attending
and
mitigating
circumstances was convinced that the sentence awarded is sever and or
that mitigating and or other attending circumstances existed or that the
case is covered by any of the legal exception or that case of the
respondent fell under clause (c) to section 302 PPC, and also beyond the
pale of proviso thereto, it was only than Court could have exercised the
discretion to award any term of sentence or punishment “with
imprisonment of either description for a term which may extend to twenty
five years…..”
11.
In the instant case as noted above, learned Bench of the High Court,
without application of mind and recording any reasons to alter a sentence,
Criminal Petition No.751 of 2017
6
in a mechanical manner, reduced the sentence as already undergone,
which is not a legal sentence within the contemplation of section 302(b)
PPC. It is only when the appellate Court is convinced that the case fell
within clause (c) of section 302 PPC than only it is proper for the appellate
Court to modify and or vary the conviction from section 302(b) to 302(c)
PPC and award sentence as has been done, provided also, after being
satisfied that the case is not one of honour killing, an exception, per proviso
thereto.
12.
Under facts and circumstances of case, we set aside the impugned
order. The Criminal Jail Appeal No.S-44 of 2009 shall be deemed to be
pending and it is expected that the learned Bench as may be assigned will
hear and decide the appeal preferably within a period of thirty days from
the date of receipt of the copy of this order. Since it is an old matter
preference may be given to decision of the appeal. In peculiar
circumstances of the case, we are inclined to accede to the request of the
learned counsel for the respondents 2 to 5 to suspend the sentence
awarded by the learned trial Court. Learned counsels for the complainant
as well as the convicts and Additional Prosecutor General undertake that
they shall appear before the Sindh High Court and make all endeavours to
render assistance for the disposal of the case in accordance with law at an
earliest. The respondents 2 to 5 present before us shall furnish bail bonds
and sureties in the sum of Rs.50,000/- (fifty thousand only) each in the like
amount to the satisfaction of the Nazir of the High Court of Sindh, within 15
days from the date of receipt of copy of this order.
13.
Accordingly, the petition is converted into appeal, and allowed in
terms noted above.
JUDGE
Islamabad
23rd November, 2017
Arshed
JUDGE
Approved for Reporting.
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Sardar Tariq Masood
Mr. Justice Syed Mansoor Ali Shah
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.762 of 2018
(Against the judgment dated 06.06.2018 passed by the
Lahore High Court Rawalpindi Bench in Crl. A.
No.249/2013)
Muhammad Rasool
…Petitioner(s)
Versus
The State
…Respondent(s)
For the Petitioner(s):
Syed Zulfiqar Abbas Naqvi, ASC
For the State:
Raja Inaam Ameen Minhas,
Ch. Ehtisham ul Haq
Special Prosecutors, ANF
M. Tariq J.D. Law, ANF
Date of Hearing
01.03.2022.
Order
Qazi Muhammad Amin Ahmed, J.- Intercepted by a
contingent of Anti Narcotic Force Attock, after a hot pursuit, the
petitioner was found on wheel a vehicle with a considerable cache,
weighing 11.500 kilograms of cannabis, concealed in the secret cavities
detected in the petrol tank; it comprised 10 packets wherefrom samples
of 10 grams each, forensically confirmed the narcotic character of the
contraband. Upon indictment, the petitioner claimed trial that resulted
into his conviction under section 9(c) of the Control of Narcotic
Substances Act, 1997, he was sentenced to imprisonment for life with a
direction to pay fine, vide judgment dated 3.6.2013, upheld by the High
Court vide impugned judgment dated 06.06.2018, leave to appeal
wherefrom is being prayed on the grounds that forensic analysis did not
qualify the “protocols” required for chemical examination as set-forth by
the law declared in Imam Bukhsh Case. It is next argued that the
contents of the parcels, statedly prepared at the time of alleged
recovery, upon de-sealing in the Court, during the cross-examination,
were incompatible with the details mentioned in the recovery memo
prepared at the time of their seizure. Prosecution has not been able to
Criminal Petition No.762 of 2018 2
prove its case involving huge penalty of imprisonment for life on the
strength of proof beyond doubt, concluded the learned counsel. The
learned Law Officer has faithfully defended the impugned judgment; he
argued that prosecution successfully drove home the charge by
establishing each link of its case through an uninterrupted chain of
events ranging from seizure to chemical analysis, conclusively
confirming the contraband as being cannabis; he has next argued that
given the volume of cache, surreptitiously concealed in a vehicle of
value, is an event that cannot be viewed with suspicion.
2.
Heard. Record perused.
3.
We have examined the forensic report that contains a
detailed description of analysis undertaken by the chemical examiner
by mentioned each test, carried out to confirm the narcotic character of
the samples. Relevant witnesses appeared to establish safe custody of
the contraband as well as transmission of samples to the laboratory;
the argument does not hold water.
Adverting to the plea, emphatically addressed about an apparent
discrepancy suggested in the weight and texture of the contraband,
made into sealed parcels at the time of their seizure, statedly mentioned
in the recovery memo, noticed upon their de-sealing during the course
of cross-examination on the request of defence counsel. The learned
trial Judge has satisfactorily met the argument by citing sound reasons.
It is off late noted, particularly, more often than not, in cases of
narcotics that an application, rather late in the day, is moved for the
de-sealing of parcels to fish out a discrepancy, notwithstanding, a plea
of loud denial and false implication from the day one. It is rather
intriguing to comprehend as to how an accused pleading innocence, all
of a sudden in the midst of the trial, prophetically learns about a
change, having occurred in weight or texture of the contraband kept in
safe custody; it does not require a genius to smell the rat. In the first
place there is no occasion for the trial Judge, in the absence of any
plausible reason, to obligingly accede to such a request for an exercise,
manifestly calculated to subvert the prosecution case through methods
sinister and stained. It is otherwise not possible without connivance of
Moharrir Malkhana and the Naib Court to lay the ground for such a
venture, therefore, it is imperative for the prosecution to keep a
watchful and vigilant eye upon its unscrupulous functionaries so as to
ensure that stream of justice runs pure and clean. Any attempt or act to
destroy or contaminate evidence lawfully collected is a cognizable
Criminal Petition No.762 of 2018 3
offence in itself, commission whereof, must be visited with zero
tolerance.
Fair trial is not a one-way affair; it also requires an accused and
his agents, pleading innocence, to conduct themselves in a manner
above board, in accordance with law; their pursuit is only justified
insofar as it is in accord with the means sanctioned by law.
Upon a careful analysis of the evidence, we have not been able to
persuade ourselves to take a view different than concurrently taken by
the Courts below. Petition fails. Leave declined.
Judge
Judge
Judge
Islamabad, the
1st March, 2022
Azmat/-
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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.763-L and 746-L of 2016
(Against the judgment dated 12.04.2016
passed by the Lahore High Court Lahore in
Crl. Appeal Nos.2608 and 2755 of 2010
with M.R. No.611/2010)
Muhammad Ameer alias Kali & Riaz Ahmed
(in Crl. P. 763-L/2016)
Mst. Sabiran Bibi
(in Crl. P. 746-L/2016)
…Petitioner(s)
Versus
The State & another
(in Crl. P. 763-L/2016)
The State & 2 others
(in Crl. P. 746-L/2016)
…Respondent(s)
For the Petitioner(s):
Mian Bashir Ahmad Bhatti, ASC
(in Cr. P.763-L/2016)
Mr. Javed Imran Ranjha, ASC
(in Cr. P.746-L/2016)
For the State:
N.R.
Date of hearing:
14.10.2020.
ORDER
Qazi Muhammad Amin Ahmed, J.- Zulfiqar, 40/41,
was shot dead at 4:30 p.m. on 9.7.2006 within the remit of Police
Station Arifwala District Pakpattan; according to the crime report,
lodged by his father Ahmad Ali (PW-3), he was jointly targeted by the
petitioners, both armed with .12 caliber shot guns; a stray pellet
landing on the left deltoid of Allah Yar (PW-4). Besides the petitioners,
Khizar Hayat and Muhammad Asif, since acquitted, were also arrayed
to have ambushed the deceased for a motive that revolved around
abduction of some females.
Ocular account supported by medical evidence as well as
recoveries weighed with the learned trial Judge to return the
petitioners a guilty verdict vide judgment dated 25.10.2010; convicted
under clause (b) of section 302 of the Pakistan Penal Code, 1860, they
Criminal Petition Nos.763-L and 746-L of 2016
2
were sentenced to death with additional imprisonment to Muhammad
Ameer alias Kali on a coordinate charge; High Court while disbelieving
the motive altered the death penalty to imprisonment for life vide
judgment dated 12.04.2016, vires whereof, are being assailed both by
the convicts as well as the complainant; latter to seek revival of death
penalty as well as reversal of acquittal. With a common thread, these
are being decided through this single judgment.
2.
Learned counsel for the convicts contends that there is a
diametrical conflict between ocular account and findings recorded by
the medical officer in the autopsy report and, thus, there was no
occasion for the courts below to record and maintain conviction on
foundations, inherently flawed; while elaborating his plea, he has
drawn our attention to the firearm entry wound on the back of skull,
with projectiles exiting from the frontal part thereof; according to the
crime report, fire shot by Muhammad Ameer caught the deceased on
the front of his face after he had already received a fire shot on his
chest, at the hands of Riaz Ahmed; the dichotomy, being suggestive of
a wider net, casts away the entire case, concluded the learned counsel.
Contrarily, according to the learned counsel for the complainant,
trajectory of high velocity projectiles and the portion of human body,
seldom static in line thereof, cannot be captured/observed with an
unfailing exactitude even by the best of faculties and, thus, upon
analysis of overall evidence, the learned trial Judge as well as the High
Court, in the totality of circumstances, supported by various planks of
the prosecution case, had rightly drawn the conclusion of guilt,
however, he insisted for restoration of death penalty, a wage, viewed as
conscionable in circumstances; he has also prayed for a guilty verdict
qua the acquitted co-accused for being in the community of intention.
3.
Heard. Record perused.
4.
Cited motive, though disbelieved by the High Court,
nonetheless, the state of affairs between the families of the
complainant and the petitioners, somewhat related, as reflected in the
cross
examination,
unmistakably
points
towards
a
troubled
relationship. Illicit liaison and abduction of two females are succinct
part of the record; this leaves hardly any space to entertain hypothesis
of substitution. Exoneration during the investigation, ultimately
resulting
into
acquittal
on
account
of
their
inconsequential
participation, departure of Khizar Hayat and Muhammad Asif from the
scene does not tremor the mainstay of the case. Riaz Ahmed petitioner
Criminal Petition Nos.763-L and 746-L of 2016
3
opened the assault with first fire shot landing on the chest; it created
five apertures all around the frontal part of deceased’s body extending
to the left iliac fossa; these injuries cumulatively caused massive
damage; fall was an inevitable consequence that appears to have
exposed the back of deceased’s head for a second shot; location of the
assailants in the site plan, though left unchallenged does not allow,
suggested trajectory of second shot. Two .12 caliber casings secured
from the spot, found wedded with shot gun (P-1), recovered on the
disclosure of Riaz Ahmed, spells out a one-man show, therefore, to
maintain the conviction of Muhammad Ameer alias Kali is fraught with
risk of error but at the same time it does not dismantle prosecution’s
case qua Riaz Ahmed. Consequently, out of abundant caution and with
a view to ensure safe administration of criminal justice, Criminal
Petition No.763-L of 2016 to the extent of Muhammad Ameer alias Kali
is converted into appeal and allowed; impugned judgment to his extent
is set aside and he shall be released forthwith, if not required to be
detained by law, however, it fails vis-à-vis Riaz Ahmed; his conviction
and sentence is maintained. Criminal Petition No.746-L of 2016 also
fails. Leave is declined.
Judge
Judge
Judge
Islamabad, the
14th October, 2020
Not approved for reporting
Azmat/-
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
MR. JUSTICE SAJJAD ALI SHAH
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
CRIMINAL PETITION NO.77-P OF 2020
(Against the order of the Peshawar High
Court, Peshawar dated 22.06.2020 passed in
Cr. M.B.A No.1316-P/2020)
Imtiaz
…
Petitioner(s)
Versus
Azam Khan and others
…
Respondent(s)
For the Petitioner(s):
:
Mr. Muhammad Jamal Afridi, ASC
For the Respondent(s):
:
Mr. Hussain Ali ASC
Respondents in person
For the State:
:
Mr. Zahid Yousaf Qureshi, Addl: AG
KPK
Mr. Hidayat Khan, SI Police Station
Mathra District Peshawar
Date of Hearing
:
08.10.2020
ORDER
SAYYED MAZAHAR ALI AKBAR NAQVI, J:-Petition for leave to appeal
under Article 185(3) of the Constitution of Islamic Republic of Pakistan,
1973 against the order impugned dated 22.06.2020 passed in Cr.M.B.A
No.1316-P/2020.
2.
The respondents were booked in case bearing FIR
No.903/17 dated 06.11.2017 offence u/s 302/324/34 PPC registered with
Police Station Mathra, District Peshawar at the instance of Imtiaz s/o
Qadir Khan, complainant.
As per allegation against the respondents is that they in
furtherance of their common intention while armed with knife attacked with
their respective weapon causing injuries on the person of Imtiaz
Criminal Petition No.77-P/2020
Imtiaz vs, Azam Khan and others
2
complainant, Qadir Khan his father and Rafi Ullah real uncle. Qadir Khan
father of the complainant succumbed to injuries on his way to hospital.
The respondents became fugitive from law hence, they were arrested by
the police after the lapse of 02 years and 03 months. The respondents
filed their post arrest bail before the learned trial court which was
dismissed by the learned ASJ-XI, Peshawar vide order dated 19.02.2020.
The respondents being aggrieved by the order of learned ASJ-XI,
Peshawar filed a Cr.M(BA) bearing No.396-P/2020 before learned
Peshawar High Court, Peshawar and the same was entrusted to learned
single bench. The learned single bench after taking into consideration of
the facts and circumstances disposed of the petition with the direction to
the learned trial court not to be prejudice by the earlier order of dismissal
passed on 19.02.2020 however the matter was sent back on the ground
that proper sections of law regarding causing hurt to both injured were not
added by the Investigating Officer. In the second round of litigation, the
respondents moved another application for post arrest bail which was
entrusted to ASJ-III, Peshawar. The learned ASJ-III, Peshawar vide order
dated 06.05.2020 dismissed the petition for post arrest bail on the ground
that the sections 302/324/337-D PPC do fall within the prohibitory clause
of section 497 Cr.PC. The respondents challenged the order of learned
ASJ-III, Peshawar before Peshawar High Court, Peshawar through
Cr.M.B.A No.1316-P/2020 which was entrusted to learned single bench. It
is pertinent to mention here that learned counsel appearing on behalf of
the respondents while filing the second petition before Peshawar High
Court, Peshawar did not disclose that earlier petition was filed before this
Court and the same was entrusted to another learned single bench. The
note mentioned in the petition is reproduced as under: -
Criminal Petition No.77-P/2020
Imtiaz vs, Azam Khan and others
3
“As per instruction of my client certified that no such bail
application has been filed by the petitioner, before this
Hon'ble Court.”
The learned single bench vide order dated 22.06.2020 granted post arrest
bail to the respondents on the basis that the intention of respondents to kill
the injured and applicability of section 324 PPC as well as sharing of
common intention with principal accused are yet to be determined and that
is to be done exclusively by the learned trial court hence, instant petition
for cancellation of concession of bail extended to respondents.
3.
At the very outset, it has been argued by the learned counsel
that the bail granting order passed by the learned trial court dated
22.06.2020 is not sustainable in the eyes of law. It has been further
argued that the learned counsel while moving the bail petition has not
properly informed the office regarding the earlier disposal of the petition of
the respondents and has actually concealed the real facts just to defeat
earlier filing of the petition which was entrusted to another learned single
bench. Contends that the same is clear violation of principle laid down in
PLD 1986 SC 173 (The State through AG NWFP vs, Zubair and 04
others). Further contends that on merits, the respondents were ascribed
injury which do fall within prohibitory clause of section 497 Cr.PC and the
finding given by the learned single bench are artificial in nature. Contends
that the gross injustice has been occasioned due to order passed by the
learned single bench hence, the order is not sustainable in the eye of law
in any manner. The learned counsel has relied upon case law reported in
PLD 2015 SC 66 (Ghulam Qammber Shah vs, Mukhtiar Hussain and
others) and 2020 SCMR 937 (Bilal Khan vs, The State through PG
Punjab).
4.
On the other hand, learned counsel appearing on behalf of
the respondents states that in the earlier application, the matter was
Criminal Petition No.77-P/2020
Imtiaz vs, Azam Khan and others
4
remanded back for the insertion of certain offences which were not
incorporated by the Investigating Officer. Contends that the order passed
by the learned single bench is sustainable and the reasoning assigned is
justifiable under the law. Contends that the principle for grant of bail and
cancellation are entirely on different footing and as such, the courts are
always reluctant to accept the petition for cancellation 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 respondents were
admitted to bail after arrest by a single bench in second round of litigation.
In the earlier round of litigation, the post arrest bail of the respondents was
dismissed by learned ASJ-XI, Peshawar whereas the second bail
application which was challenged before learned Peshawar High Court,
Peshawar and the learned single bench sent back the matter to the
learned trial court not due to any reasons except that the appropriate
section as per law were not incorporated, which might have ensued gross
injustice to the complainant and as such, the matter was sent back for
addition of the relevant provision of law in the police record. That after the
insertion of the relevant provision of law in the second round of litigation,
the matter was assigned to learned ASJ-III, Peshawar. It is strange
enough that it has now established that the bail application if earlier
decided by a court, the same cannot be entrusted to any other court
except on the ground that the other court was not available. This was not
taken care of even at the bail stage before the court of learned ASJ
whereas in the second round of litigation, the learned counsel appearing
on behalf of the respondents intentionally avoided to disclose the filing of
earlier petition before learned Peshawar High Court, Peshawar and the
adjudication of the same by a different bench and it was assigned to
Criminal Petition No.77-P/2020
Imtiaz vs, Azam Khan and others
5
another court which was clear violation of PLD 1986 SC 173 (The State
through AG NWFP vs, Zubair and 04 others). Apart from this, the learned
single bench has not taken into consideration the allegation against the
respondents and the injuries ascribed to them. It is an admitted fact that
one of the injured PW had undergone surgical intervention and as such,
the provision of section 337-D PPC was added. The finding given by the
learned single bench qua the applicability of section 324 PPC and section
34 PPC qua the common intention of the accused person is based upon
artificial reasoning which to us was not required at this stage otherwise it
is established principle of law that while adjudicating a matter regarding
the bail only tentative assessment has to be made which has been
established while enunciating the same by this Court from time to time in
various judgments including PLD 2015 SC 66 (Ghulam Qammber Shah
Vs, Mukhtiar Hussain and others) and 2020 SCMR 937(Bilal Khan vs, The
State through PG Punjab) otherwise the respondents remained absconder
for more than 02 years and 03 months which aspect has altogether
ignored by the learned single bench.
7.
These are the reasons of our short order of even date which
reads as under: -
“For the reasons to be recorded later, this petition is
converted into appeal and is allowed. The bail granted to the
respondents through the impugned judgment of the
Peshawar High Court, is recalled and the respondents are
directed to be taken into custody forthwith.
Judge
Judge
Islamabad,
08.10.2020
Approved for reporting
Syed Rashid Maqsood/*
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
MR. JUSTICE JAMAL KHAN MANDOKHAIL
CRIMINAL PETITION NO. 789 OF 2023
(On appeal against the order dated 26.05.2023 passed
by the Peshawar High Court, Peshawar in Crl. MBA No.
1831-P/2023)
Muhammad Aslam
… Petitioner
Versus
The State
…Respondent(s)
For the Petitioner:
Mr. Muhammad Tariq, ASC
Syed Rifaqat Hussain Shah, AOR
For the State:
Raja Inaam Ameen Minhas, Special Prosecutor ANF
Ch. Ehtisham ul Haq, Special Prosecutor ANF
Mr. Hasan Feroz, Inspector
Date of Hearing:
23.08.2023
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 26.05.2023 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. 46/2023
dated 19.03.2023 under Sections 9(1) 3e, 6e, 9(2) 5-15 of Control of
Narcotic Substances Act, 1997, in the interest of safe administration of
criminal justice.
2.
Briefly stated the allegation against the petitioner is that he
was caught red-handed by the Police and charas weighing 104.400
kilograms, heroin weighing 05 kilograms and methamphetamine (ice)
weighing 0.900 kilogram was recovered from the car in the front seat of
which he was sitting and traveling.
Criminal Petition No. 789/2023
-: 2 :-
3.
At the very outset, it has been argued by learned counsel for
the petitioner that the petitioner has been falsely roped in the present
case against the actual facts and circumstances. Contends that no
contraband whatsoever was recovered from the personal possession of
the petitioner and he was not in conscious knowledge regarding the
presence of the narcotics in the car. Lastly contends that the learned High
Court has not properly evaluated the material available on the record,
therefore, by declining bail to the petitioner, a grave miscarriage of justice
has been done.
4.
On the other hand, learned Law Officer contended that the
petitioner is specifically nominated in the crime report and from his
possession a huge quantity of narcotics has been recovered, 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 evidence available on the record.
6.
As per the contents of the crime report, on receiving a spy
information that a huge quantity of narcotics would be smuggled from
Peshawar to Punjab via motorway, the Police party set a blockade and
intercepted a car, which was being driven by co-accused of the petitioner
while the petitioner was sitting in front seat of the car. From the secret
cavities of the car, charas weighing 104.400 kilograms, heroin weighing 05
kilograms and methamphetamine (ice) weighing 0.900 kilogram was
recovered. Samples were taken and sent to Forensic Science Laboratory in
accordance with the prescribed criteria and the report of the FSL is
positive. Nothing could be brought on record by the petitioner to suggest
that the Police had any malice to falsely involve him in the present case.
During the course of arguments, learned counsel contended that
petitioner was merely sitting on the front seat of the car and the narcotics
was not in his conscious knowledge. We have noted that the learned High
Court has taken note of this argument and has rightly held that the
“petitioner and the driver of the vehicle both belong to the disciplined force
that is Pak Army and at the relevant time both were posted at the same
Criminal Petition No. 789/2023
-: 3 :-
place, therefore, the impugned transaction being a joint venture cannot be
overruled at the moment.” The offence is heinous in nature as it
contributes to the menace of drugs having grave repercussions on the
society. Prima facie the material available on the record connects the
petitioner with the commission of the crime. The offence falls within the
prohibitory clause of Section 497 Cr.P.C. The impugned order is well
reasoned, proceeds on correct principles of law on the subject and does
not call for interference by this Court.
7.
For what has been discussed above, we are not convinced
that any case for grant of bail is made out. This petition having no merit is
accordingly dismissed and leave to appeal is refused.
JUDGE
JUDGE
Islamabad, the
23rd of August, 2023
Approved For Reporting
Khurram
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mushir Alam
Mr. Justice Sajjad Ali Shah
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.79-K of 2019
(Against order dated 21.3.2019 of the High
Court of Sindh, Karachi passed in Cr.
Accountability Appeal No.14/2013)
Sheikh Iqbal Azam Farooqui through his legal heirs
…Petitioner(s)
Versus
The State through Chairman NAB
…Respondent(s)
For the Petitioner(s):
Mr. Amir Raza Naqvi, ASC
Mr. Ghulam Rasool Mangi, AOR
For the State
Mr. Sattar Awan, Special Prosecutor
Date of hearing:
2.1.2020.
JUDGMENT
Qazi Muhammad Amin Ahmed, J. Sheikh Iqbal Azam
Farooqui, since demised, was tried by an Accountability Court at
Karachi; he was arrayed in the reference alongside Javed Iqbal
Farooqui, Iftikhar A. Shaikh and Shaikh Mansoor Ahmed, away from
law till date, proceeded accordingly; held guilty under Section
9(a)(viii) of the National Accountability Ordinance, 1999, he was
sentenced to undergo Rigorous Imprisonment for seven years with a
direction to pay Rs.5.187 million as fine, to be recovered as arrears
of land revenue; upon his death, a learned Division Bench of High
Court of Sindh, disposed of his appeal as having been abated, while
keeping amount of fine intact to be realized from his estate vide
impugned order dated 21.3.2019, vires whereof are being disputed
herein.
2.
Learned counsel for the legal heirs of the deceased convict
contends that notwithstanding death of the convict, his appeal,
admitted to regular hearing during his life time, merited full dress
Criminal Petition No.214 of 2018
2
regular adjudication as not only his name required vindication but
also for the additional reason that his estate, devolving upon the
legal heirs, was burdened with impugned conviction. While referring
to the provisions of Section 431 of the Code of Criminal Procedure,
1898, law declared by this Court in the cases of Dr. Ghulam
Hussain (represented by 8 heirs) vs. The State (1971 SCMR 35)
and
Muhammad
Shamoon
(deceased)
through
legal
representatives vs. The State and another (2019 SCMR 1144)
has been referred to argue that there was no occasion for the learned
High Court to short circuit the pending proceedings with fiscal
consequences of the conviction still impinging upon the estate. The
learned Law Officer has contested the motion.
3.
Heard. Record perused.
4.
Corporal consequences of a conviction wither away with the
death of the convict, therefore appeal filed by the convict would
automatically abate, as the death severs all temporal links with his
corpus. However, financial liability, consequent upon conviction and
shifted upon the estate, would certainly require the appellate court
to decide the appeal on its own merit as in the event of its failure,
the liability is to be exacted from the assets devolving upon the legal
heirs. A plain reading of Section 431 of the Code ibid confirms the
above contemplation of law. Criminal petition is converted into
appeal; allowed. The impugned order is set aside. Appeal filed by the
deceased, being sustained by his legal heirs, shall be deemed as
pending before the High Court for adjudication on merits.
Judge
Judge
Judge
Karachi, the
2nd January, 2020
Not approved for reporting
Ghulam Raza/-
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE UMAR ATA BANDIAL
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
CRIMINAL PETITION NO. 796-L OF 2021
(On appeal against the order dated 01.06.2021 passed by
the Lahore High Court, Lahore in Criminal Miscellaneous No.
22073-B/2021)
Waqas ur Rehman alias Moon
… Petitioner
VERSUS
The State etc
… Respondents
For the Petitioner:
Mian
Muhammad
Aslam,
ASC
a/w
petitioner
For Respondent (2):
In person
For the State:
Mr. Muhammad Jaffer, Addl. P.G.
Mr. Bashir Ahmed, ASI
Date of Hearing:
13.10.2021
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
01.06.2021 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. 1578/2020 dated 05.12.2020 under Section
420/468/471 PPC at Police Station Manawan, District Lahore, in the
interest of safe administration of criminal justice.
2.
As per the contents of the crime report, the complainant
wanted to purchase a house and for this purpose she along with her
husband went to the office of the property dealer where the
petitioner along with co-accused were present. They showed her a
house, received a sum of Rs.500,000/- as advance along with
Rs.50,000/- as commission and handed over to her Fard Malkiyat of
the house. However, later on it transpired that the said house was
owned by someone else and the Fard Malkiyat was found to be a
bogus document.
Criminal Petition No. 796-L/2021
2
3.
Learned counsel for the petitioner contends that the
petitioner has been falsely roped in this case against the actual facts
and circumstances due to connivance of the complainant with local
police. Contends that the very office where the complainant went
does not belong to the petitioner and he was merely sitting in the
office. Contends that neither the petitioner participated in the
transaction nor received any consideration or stood witness,
therefore, he cannot be saddled with the liability.
4.
On the other hand, learned Law Officer contended that
the petitioner has been specifically nominated in the crime report. He
contends that the petitioner is habitual cheater/offender and three
other criminal cases of similar nature have been registered against
him. Contends that even he did not appear before the High Court on
the ground that he has been tested positive for COVID-19 but the
certificate placed on record by him was subsequently found bogus.
Lastly contends that the petitioner was also found guilty during the
police investigation and 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 record.
The petitioner is involved in a case where a woman folk
has been deprived of valuable money under the disguise of handing
over a house against a consideration of Rs.500,000/- in cash and
Rs.50,000/- as commission. The argument of learned counsel for the
petitioner that the petitioner has no nexus with the crime alleged
does not appeal to reason as it is an admitted fact that the petitioner
is one of the signatory of the document which reflects that the
petitioner in connivance with other co-accused has managed to
defraud a household lady. The accusation against the petitioner was
otherwise found correct during the course of investigation and as
such a definite finding of guilt has been given by the Investigating
Officer against the petitioner. We are conversant with the fact that
the ipsi dixit of the police is not binding on the Courts but it has
persuasive value. The conduct of the petitioner is very material in
this case. During the pendency of the second bail petition of the
petitioner before the High Court, a certificate regarding his sickness
was produced wherein it was specifically mentioned that he is
Criminal Petition No. 796-L/2021
3
suffering from COVID-19. However, the said certificate on inquiry
was found to be bogus one. Even otherwise, the petitioner did not
appear before the High Court although he was admitted to ad
interim bail twice in two different petitions by the High Court that too
in extraordinary circumstances. The grant of pre-arrest bail
undeniably is extraordinary relief, which has to be exercised
sparingly with an intent to save the innocent persons from trump-up
charges whereas in the instant case we are informed that the
petitioner is otherwise involved in three other cases of similar
nature, which further lends support to the fact that the petitioner is
prone to criminal activities coupled with the fact that he is so dare
devil that he did not even hesitate to cheat the highest judicial forum
of a province and the same is reflected from paragraph (3) of the
order impugned before us. In view of the facts and circumstances of
this case and the nature of offence committed by the petitioner, we
are persuaded to decline the prayer for grant of pre-arrest bail. As a
consequence, the instant petition filed by the petitioner is dismissed
and leave to appeal is refused.
JUDGE
JUDGE
Lahore, the
13th of October, 2021
Approved For Reporting
Khurram
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE IJAZ UL AHSAN
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
CRIMINAL PETITION NO. 801 OF 2021
(On appeal against the judgment dated 11.06.2021
passed by the Peshawar High Court, Peshawar in
Criminal Revision No. 49-P/2021)
Shah Jehan and another
… Petitioners
VERSUS
Raheem Shah and others
… Respondents
For the Petitioners:
Mr. Ghulam Mohy-ud-din Malik, ASC
For the State:
Mr. Shumyl Aziz, Addl. A.G. KPK
Date of Hearing:
20.10.2021
ORDER
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through this petition
under Article 185(3) of the Constitution of Islamic Republic of
Pakistan, 1973, the petitioners have called in question the judgment
dated 11.06.2021 of the Peshawar High Court, Peshawar passed in
Criminal Revision No.49-P/2021 with the prayer to set aside the
same in the interest of safe administration of criminal justice.
2.
The facts of the case are that a case bearing FIR
No.1706 dated 30.11.2019 under Sections 302/324/148/149 PPC
was registered at Police Station Faqirabad, District Peshawar at the
instance of Zewar Khan son of Gul Roz Khan. After the registration
of the aforesaid crime report, the matter was investigated by the
Investigating Officer and the report in terms of Section 173 Cr.P.C.
was submitted before the Trial Court. During the pendency of the
proceedings, an application under Section 540 Cr.P.C. was filed to
summon Raheem Shah, father of the deceased and Sadiq Khan,
who was one of the eye-witnesses of the occurrence and re-
examination of Zewar Khan (PW-6) and Uzair Khan (PW-8) as they
were turned hostile during trial. The Trial Court vide order dated
15.02.2021 allowed the application to the extent of summoning of
Raheem Shah, father of the deceased and Sadiq Khan, who
Criminal Petition No. 801/2021
2
happens to be one of the eye-witnesses of the crime report, whereas
the application to the extent of re-summoning and re-examining of
Zewar Khan (PW-6) and Uzair Khan (PW-8) was dismissed as their
examination-in-chief and cross-examination has already been
completed, thus, there is no occasion for re-calling them for re-
examination. The order of the Trial Court was challenged before the
High Court in Criminal Revision No.49-P/2021 which was allowed
vide judgment dated 11.06.2021. Hence this petition.
3.
The main crux of the arguments advanced by the
learned counsel for the petitioners is that the Trial Court as well as
the High Court while adjudicating the matter with respect to the
application which was filed under Section 540 Cr.P.C. have gone
beyond the scope of the law. Contends that it is an established
principle of law that in criminal matter, new witnesses cannot be
brought on the record unless and until they are necessary for the
just decision of the case and those can be brought if they join
investigation from the initiation of the proceedings. Contends that
Raheem Shah, father of the deceased was neither cited as witness
nor mentioned in calendar of witnesses in report under Section 173
Cr.P.C. The application for summoning of Raheem Shah, father of the
deceased along with Sadiq Khan was moved for the first time on
26.01.2021 after the lapse of about 14 months and that too when
the statement of the ocular account was recorded and cross-
examination was completed by the learned defence counsel.
Contends that the statement of Sadiq Khan was not recorded and
that the observations given by the High Court are unwarranted and
as such it would squarely prejudice the case of the petitioners,
therefore, the observation passed by the learned High Court while
exercising revisional jurisdiction is uncalled for.
4.
On the other hand, the learned Law Officer supported
the order of the Trial Court as well as the revisional judgment
passed by the High Court. It is mainly contended that the witnesses
of ocular account, namely, Zewar Khan (PW-6) and Uzair Khan (PW-
8) have given their statements according to their conscious and the
fate of the same is yet to be decided, therefore, the order of the Trial
Court permitting to introduce new witnesses (father of the deceased,
who is not mentioned in the crime report and Sadiq Khan, already
Criminal Petition No. 801/2021
3
mentioned in the crime report) is fully justified whereas the judgment
of the High Court in revisional jurisdiction is unexceptionable. Lastly,
it is argued by the learned Law Officer that the judgment impugned
before us would not prejudice the case of the petitioners in any
manner whatsoever, therefore, the same is passed squarely in
accordance with law.
5.
We have heard the learned counsel for the parties and
gone through the record.
There is no second cavil to this proposition that the
aforesaid crime report was registered at the instance of one Zewar
Khan who narrated the definite story relating to the prosecution case
which is spelt out from the record from the bare reading of the same.
Undeniably, Sadiq Khan is one of the eye-witnesses, whereas
Raheem Shah, father of the deceased stands nowhere in the crime
report as a witness. The filing of the application after the lapse of
about 14 months wherein a new witness has been introduced to
substantiate the accusations leveled in the crime report does not
make sense as considerable time has already elapsed and it will
certainly imprint that the said application has been filed after due
deliberation and consultation. No doubt the introduction of new
witness cannot be denied stricto sensu but certainly the scheme of
law would be bypassed if at this stage the statement of Raheem
Shah, father of the deceased is permitted to be recorded during the
proceedings before the Trial Court although it was well within the
knowledge of the said Raheem Shah about the murder of his son
and he never opted to appear as a witness and in this regard the
statement under Section 161 Cr.P.C. was not recorded by the
Investigating Officer. It is nowhere mentioned that Raheem Shah
ever appeared before the Investigation Officer to substantiate the
accusation leveled against the accused persons. As far as the case
of Sadiq Khan is concerned, he is one of the eye-witnesses of the
crime report and as such his statement, if earlier not given up by the
prosecution and the prosecution’s case is still not closed, the same
can be re-agitated and adduced to strengthen the prosecution
version on the basis of contents of the crime report, therefore, he can
be produced and recorded by the Trial Court as per dictates of law,
whereas so far as re-summoning and re-examination of two
Criminal Petition No. 801/2021
4
prosecution witnesses, who have already been recorded by the Trial
Court, is concerned, as their cross-examination has already been
conducted by the defence counsel and any application at a belated
stage just on the ground that the prosecution witnesses have made
statements contrary to the earlier statements under Section 161
Cr.P.C. is no ground at all to issue direction for re-summoning and
re-examining the said witnesses for further cross-examination which
is against the essence of law. No one can be permitted to fill in the
lacunas at the belated stage according to his own whims. Therefore,
the order of the Trial Court to the extent of declining re-summoning
and re-examination of Zewar Khan (PW-6) and Uzair Khan (PW-8) is
upheld. Further, the finding of Trial Court to summon father of
deceased is also set aside, however, Sadiq Khan, PW can be
summoned to substantiate the prosecution version, if so desired,
whereas the finding of the High Court is set aside. The learned Trial
Court shall proceed with the trial in the light of this judgment. This
petition stands disposed of accordingly.
JUDGE
JUDGE
Islamabad, the
20th of October, 2021
Approved For Reporting
Waqas Naseer/*
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Sajjad Ali Shah
Mr. Justice Yahya Afridi
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No. 83-P/2013 &
Jail Petition No.474/2017
(Against judgment dated 30.05.2013 passed by the
Peshawar High Court, Peshawar in Criminal Appeal No.
478-P/2012 and Murder Reference No. 19-P/2012)
Izzat Ullah
(in Cr.P. No.83-P/2013)
Mst. Robina
(in J.P. No.474/2017)
…Petitioner(s)
Versus
The State
…Respondent
For the petitioner:
Mr. Altaf Samad, ASC
(in Cr. Petition No.83-P/2013)
Mrs. Farhana Naz Marwat, ASC
(in Jail Petition No.474-P/2017)
For the State:
Mr. Zahid Yousaf Qureshi,
Addl. A.G., KPK
Date of hearing:
27.09.2019.
JUDGMENT
Qazi Muhammad Amin Ahmed, J. Jail Petition No.474
of 2017 by Mst. Robina and Criminal Petition for Leave to Appeal
No.83-P/2013 by her co-convict Izzat Ullah, bound by a common
thread, are being decided through this single judgment; they were
intercepted on 27.3.2010 at 10:00 a.m. within the precincts of
Police Station Muhammad Riaz Shaheed District Kohat at a check-
post while travelling in a vehicle bearing Registration No.AJD-911
Criminal Petition No. 83-P/2013 &
Jail Petition No.474/2017
2
Sindh. Izzat Ullah petitioner was on the wheel, Mst. Robina being
next to him; on a suspect response, when questioned, the vehicle
was extensively searched and the police contingent succeeded to
discover a secret cavity in the fuel tank wherefrom 20 packs each
with 1050 grams heroin were recovered. Soon after the arrest, Mst.
Robina was produced before Mr. Tilla Muhammad, Judicial
Magistrate (PW-1) who recorded her confessional statement
(Ex.PW-1/2). Izzat Ullah petitioner opted to make his breast clean
on the following day through statement (Ex.PW-1/5). As the
investigation progressed, co-accused Majnoon son of Rustam was
also taken on board for having dispatched the consignment. One
Fida, an alleged privy to the transaction, is still away from the law.
Upon indictment, the accused claimed trial whereupon prosecution
produced as many as eight witnesses, besides the forensic report
to drive home the charge; they confronted prosecution evidence
with unanimous denials with a reticence as to why they were roped
in the case. The learned trial Judge extended benefit of the doubt
to Majnoon co-accused, however, vide judgment dated 9.10.2012
proceeded to convict Izzat Ullah and Robina Bibi under section 9(c)
of the Control of Narcotic Substances Act, 1997; the former was
sentenced to death while latter to imprisonment for life; their
convictions were maintained by the High Court, however, death
penalty awarded to Izzat Ullah was altered into imprisonment for
life and it is so done on the request of his counsel on account of
his being merely a carrier without deriving much benefit from the
crime.
2.
Validity
of
confessional
statements
as
well
as
prosecution’s failure to establish safe custody and transmission
are the main planks stressed on behalf of the convicts besides non-
availability of public witnesses to attest the recovery.
3.
Confessional statements before Tilla Muhammad,
Judicial Magistrate (PW-1), though retracted subsequently present
formidable piece of evidence, inexorably pointed upon the convicts’
culpability. Mst. Robina made disclosure within a small span of
time soon after her arrest, during her first appearance before the
Magistrate; Izzat Ullah followed the suit; both of them after having
Criminal Petition No. 83-P/2013 &
Jail Petition No.474/2017
3
been administered warnings and cautions, though disapprovingly
on a printed format, nonetheless, made statements otherwise
found by us as voluntary, natural and truthful with relevant
details compatible with the salient features of the case; brief
interregnum rules out hypothesis of manipulation. Other pieces of
evidence have been found by us as independently sufficient to
drive home the charge; forensic report confirms the lethal nature of
the substance, recovered in a quantity that cannot be possibly
foisted in routine; seizure of the vehicle clinches the case.
Argument of safe custody does not hold much water as Abdul
Faraz 28/C (PW-10) took the sample to the Forensic Science
Laboratory along with Rahdari Ex.PW8/3 was not cross-examined
despite opportunity. Forensic Report (Ex.PZ) corroborates the
position taken by the said PW. Absence of public witnesses is
beside the mark; public recusal is an unfortunate norm.
Prosecution witnesses are in a comfortable unison; being
functionaries of the Republic, they are second to none in status
and their evidence can be relied upon unreservedly, if found trust
worthy, as in the case in hand. Both the courts below have
undertaken an exhaustive analysis of the prosecution case and
concurred in their conclusions regarding petitioners’ guilt and we
have not been able to take a different view than concurrently taken
by them. Petitions fail. Dismissed.
Judge
Judge
Judge
Islamabad
27th September, 2019
Not approved for reporting
Azmat/-
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mazhar Alam Khan Miankhel
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.83-P of 2015
(Against the judgment dated 06.03.2015 passed by the Peshawar
High Court Peshawar in Cr. A. No.188-M/2012)
State through AG General KP, Peshawar
…Petitioner(s)
Versus
Sabz Ali Khan
…Respondent(s)
For the Petitioner(s):
Ms. Abida Safdar,
Assistant Advocate General, KPK
For the Respondent(s): N.R.
Date of hearing:
26.07.2021
ORDER
Qazi Muhammad Amin Ahmed, J.- Indicted for homicide
for committing Qatl-i-Amd of Sher Muhammad, within the precincts of
Police Station Changlay, District Bonair, the respondent was convicted
under clause (b) of section 302 of the Pakistan Penal Code, 1860 by a
learned Additional Sessions Judge vide judgment dated 10.10.2012; he
was sentenced to death with a direction to pay compensation to the
legal heirs of the deceased; on the coordinate charge of murderous
assault on Mushtaq PW, he was sentenced to 7-years RI with
concomitant monetary compensation; the High Court acquitted him
from the charges vide impugned judgment dated 06.03.2015, vires
whereof, are being assailed on the grounds that there was no occasion
for the High Court to take the impugned view inasmuch as the
prosecution had successfully driven home charge beyond a shadow of
doubt on the strength of ocular account furnished by the witnesses that
included an injured with a massive injury. It is next argued that
investigative conclusions drawn up pursuant to a prompt recourse to
law, inexorably pointed towards respondent’s culpability, singularly
arrayed in the crime report. According to the learned counsel, reference
by the High Court to peripheral issues and stated durations of time are
Criminal Petition No. 83-P/2015
2
too
trivial
to
override
the
preponderance
of
evidence
that
unambiguously excluded every hypothesis other than respondent’s
guilt; similarly, according to her, stated lapses on part of the
Investigating Officer, being inconsequential, certainly does not cast
away prosecution’s case, otherwise firmly structured on evidence
furnished by the independent witnesses and, thus, the impugned view
being artificial warrants interference by the Court in order to avoid
miscarriage of justice. Contentions merit consideration; leave is granted
to reappraise entire evidence with a view to secure the 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/-
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT
Mr. Justice Iftikhar Muhammad Chaudhry, CJ.
Mr. Justice M. Javed Buttar.
Mr. Justice Tassaduq Hussain Jillani.
CRIMINAL PETITION NOs.848-L, 920-L & 921-L OF 2002
AND JAIL PETITION NO.2 OF 2003 a/w CRL. MISC. No.62/2005
IN CRL. PETITION NO.920-L/2002
(On appeal against the judgment dated 2-10-2002
Passed by the Lahore High Court, Lahore in Crl.
Appeal No.622, 637, 638/97 and M.R. No.247-T of 1997)
Ghulam Abbas
…
…
Petitioner
(in Crl.P.848-L/02)
Munir Ahmed
…
…
Petitioner
(in Crl.P.920-L/02)
Shaukat Ali
…
…
Petitioner
(in Crl.P.921-L/02)
Irfan Javed and others
…
…
Petitioners
(in JP.2/2003)
Versus
The State
…
…
Respondent
(in all cases)
For the petitioner
:
Syed Mazhar Ali Akbar Naqvi, ASC
(in Crl.P.848-L/02)
Petitioner(s)
Nemo.
(in Crl.P.920-L, 921-L/02
:
and JP.2/2003)
For the State
:
Mrs. Afshan Ghazanffar, AAG.
Date of hearing
:
12th & 13th December, 2005
O R D E R
IFTIKHAR MUHAMMAD CHAUDHRY, CJ. Listed petitions have
been filed for leave to appeal against the judgment dated 2nd October 2002
passed by the Lahore High Court, Lahore.
2.
Precisely stating facts of the case are that vide FIR Ex.PC/1 dated
1st April 1997 lodged by Sheikh Attique Ahmed (PW-12) at Police Station
Crl.P.848-L/2002 etc
2
Cantt. Sialkot, alleging therein that when he was present in his house
alongwith Zaheer Haider his business partner, his wife Farida Atteeq and
two sons namely Mohsin Ateeq aged about 11/12 years and Danish Ateeq
aged about 8/9 years and his father Sh. Shafique Ahmed who was lying on
the bed, all of a sudden three persons duly armed with pistol entered into
the room. His wife made a shriek on seeing them, his father got up from the
bed and by raising Lalkara made an attempt to catch hold of one of the
accused. At the same time one of the accused fired with his pistol hitting his
father on his neck who fell down on the ground. The third accused kept
watch while holding pistol in his hand and also threatened them that if any
one of them made an attempt to move he would be met with the same fate.
Two of the accused took his son namely Mohsin Ateeq to adjacent room
and from an Almirah, they took away golden ornaments, one Rado Wrist
watch (Ladies) and also searched for Cash. One of the accused kept watch
on the inmates of room while holding pistol and also continued threatening
them. The accused remained in his house for 25/30 minutes and thereafter
scaled over the wall behind the house upon which he and others raised hue
and cry attracting their neighbors. His father was shifted to hospital but he
died on his way to hospital. Accordingly FIR of the incident was
registered. Accused persons involved in the commission of offence were
arrested and following six persons were sent up to answer the
charge : -
1.
Ghulam Abbas
2.
Arshad Masih.
3.
Iftikhar Ahmad alias Chand
4.
Irfan Javed alias Bhaia.
5.
Munir Ahmad.
6.
Shaukat Ali.
Learned Trial Court vide judgment dated 6th November 1997
convicted/awarded following sentences to the accused persons : -
Crl.P.848-L/2002 etc
3
U/s 458 PPC
Iftikhar Ahmed @ Chand,
Arshad Masih and Ghulam
Abbas
14 years R.I. with payment of fine of
Rs.50,000/- and in default whereof to
suffer further two years R.I. each.
U/s 458/114 PPC
Arfan Javaid @ Bhaia, Munir
Ahmed and Shaukat Ali
14 years R.I. with payment of fine of
Rs.50,000/- and in default whereof to
suffer further two years R.I. each.
U/s 395 PPC
Ghulam
Abbas,
Arshad,
Iftikhar Ahmad @ Chand,
Arfan Javaid @ Bhaia, Munir
Ahmad and Shaukat Ali.
R.I. for life with payment of fine of
Rs.50,000/- and in default whereof to
suffer further two years R.I. each.
U/s 396 PPC
Ghulam Abbas, Arshad Masih
and Iftikhar @ Chand.
Death sentence subject to confirmation
by the High Court, with payment of fine
of Rs.50,000/- and in default whereof to
suffer further two years each
U/s 396 PPC
Arfan Javed @ Bhaia, Munir
Ahmad and Shaukat Ali.
R.I. for life with payment of fine of
Rs.50,000/- and in default whereof to
suffer further two years R.I. each.
U/s 412 PPC
Ghulam
Abbas,
Arahad
Masih, Iftikhar Ahmad @
Chand, Arfan Javed, Munir
Ahmad and Shaukat Ali.
10 years R.I. with payment of fine of
Rs.20,000/- and in default whereof to
suffer further one year R.I. each.
Learned High Court, however, up-held the sentence of death of one of the
petitioner namely Ghulam Abbas, whereas sentence awarded to Arshad
Masih and Iftikhar Ahmed alias Chand was reduced to life imprisonment.
Sentence awarded to other convicts namely Arfan Javaid @ Bhaia, Munir
Ahmed and Shaukat Ali was reduced to seven years R.I. As far as
remaining sentences under Section 396 PPC awarded to the convicts were
maintained by the High Court by means of impugned judgment. Listed
petitions have been filed on behalf of convicts for leave to appeal.
3.
Learned counsel appearing in Civil Petition No.848-L of 2002
contended that in accordance with the provisions of Section 391 read with
Section 396 PPC, the accused deserve for same sentence as they are all
equally responsible for the commission of offence. On having reduced the
sentence of the other convicts, the sentence of the petitioner Ghulam Abbas
is not liable to be maintained. To substantiate his plea he placed reliance
upon the cases of Puranmal Agarwalla and others v. Rautmal Pincha
(AIR 1953 “Assam 44), Shivappa and others v. Hyderabad State (AIR
1955 Hyd. 147), Geedo and others v. the State (1986 P.Cr.L.J. 2192),
Crl.P.848-L/2002 etc
4
Abdul Qayyum and others v. The State (PLD 2004 Karachi 232), Khalid
Mehmood and four others v. The State (2004 SCMR 199).
4.
It may be noted that as far as convict Munir Ahmed is concerned he
entered into compromise with the L.Rs. of the deceased whereas Arfan
Javed @ Bhaia and Shaukat Ali are contesting the conviction awarded to
them. As far as question in respect of acceptance or otherwise of the
compromise is concerned, it will be dealt with in view of the judgment in
the case of Muhammad Rawab v. The State (2004 SCMR 1170).
However, at this stage having seen the law relied upon by the learned
counsel of the petitioner-Ghulam Abbas, prima facie, we are of the opinion
that if the sentence of death of Ghulam Abbas is maintained then remaining
convicts would also be liable to the sentence for death. Therefore, while
grating leave to appeal in their cases as well notices be also issued to them
to explain as to why their sentences may also not be enhanced.
Thus for the above reasons, inter alia, to examine the contentions
put forward by the learned for petitioners as well as merits of the case to
the extent of other accused persons, leave to appeal is granted.
Chief Justice
J.
J.
Islamabad
12-12-2005
MS/*
APPROVED FOR REPORTING.
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Maqbool Baqar
Mr. Justice Yahya Afridi
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.849 of 2019 and
Criminal Petition No.850 of 2019
(Against judgment dated 09.07.2019 of the
Islamabad High Court, Islamabad, passed in
Criminal Appeal Nos.191 of 2018)
Aamir Shahzad
(in Cr.P. No.849/2019)
Qaiser Shahzad
(in Cr.P. No.850/2019)
…Petitioner(s)
Versus
The State & another
(in Cr.P. No.849/2019)
The State
(in Cr.P. No.850/2019)
…Respondent(s)
For the Petitioner(s):
Raja Rizwan Abbasi, ASC
Syed Rifaqat Hussain Shah, AOR
For the State:
Mian Asghar Ali,
Deputy Attorney General for Pakistan.
Date of hearing:
10.06.2020.
JUDGMENT
Qazi Muhammad Amin Ahmed, J.- Aamir Shahzad son of
Talib Hussain and Qaisar Shahzad son of Muhammad Akram,
petitioners, were returned a guilty verdict by the Drug Court Islamabad
for commission of offences under sections 23(1)(a)(vii), 23(1)(c) and
23(1)(i) of the Drugs Act, 1976; convicted under sections 27(1) and 27(4)
of the Act ibid, they were sentenced to rigorous imprisonment for
5 & 3 years along with fine respectively or to undergo six months simple
imprisonment in default thereof; the sentences were ordered to run
concurrently; their appeals met with no better fate vide impugned
judgment dated 9-7-2019, vires whereof, are being assailed through the
captioned petitions; bound by a common thread, these are being
decided through this single judgment.
Criminal Petition No.849 of 2019 and
Criminal Petition No.850 of 2019
2
2.
Learned counsel for the petitioners contends that Drug
Inspector, Shabbir Ahmed (PW-1), had no authority to search the
premises or to impound drugs and as such entire exercise is a nullity in
the eye of law; it is further argued that there is nothing on the record to
confirm that the impounded drugs were unregistered inasmuch as no
such certification from the DRAP has been brought on record by the
prosecution; his next grievance is that none from amongst the members
of the Quality Control Board entered the witness-box and, thus, mere
reliance by the Courts below on an affidavit purportedly submitted by
the petitioners is far from being sufficient to drive home the charge; he
blamed Dr. Shuja Nawaz to be the actual owner of the outlet, let off by
the prosecution for considerations other than noble. The Law Officer
has faithfully defended the impugned judgment.
3.
Heard. Record perused.
4.
Argument that Shabbir Ahmed, Drug Inspector (PW-1),
lacked authority to carry out the raid and seize the contraband is
entirely beside the mark; in the witness-box, he categorically asserted
his status on the strength of Notification No.1(19)-Law/2004(Vol-III)-
578 dated 17th February, 2012 (Mark-A), a position uncontroverted
during the trial. Section 18(d) of the Drugs Act, 1976 does not place any
clog on the powers of Inspectors so as to “enter and search, with such
assistance, if any, as he considers necessary, any building, vessel or
place, in which he has reason to believe that an offence under this Act or
any rules has been or is being committed or may continue to be
committed”. In exercise of powers vesting in the witness, he was well
within the remit of law to seize unregistered drugs. These were secured
vide inventory Ex.P1 to P-18 on Form-5 (Ex.PA), transmitted to the
Quality Control Board Islamabad vide letter dated 12.9.2017; an
exercise that required no additional authorization.
Both the petitioners appeared before the Quality Control Board in
response to show cause notice dated 25.9.2017, before whom Aamir
Shahzad took the following position, in writing, depicted as Ex.PB and
Ex.PE, respectively:-
Criminal Petition No.849 of 2019 and
Criminal Petition No.850 of 2019
3
Perusal of above exhibits confirms purchase of stamp papers by Aamir
Shahzad, petitioner, from a stamp vendor, with his thumb impression
affixed on its back while both of them signed and thumb marked the
statements. Plea for the exclusion of Ex.PB & PE from consideration on
the ground of their admission in evidence being violative of procedure
provided under section 364 of the Code of Criminal Procedure, 1898
does not hold water; before the Board, petitioners were neither being
Criminal Petition No.849 of 2019 and
Criminal Petition No.850 of 2019
4
indicted nor called upon to plead guilty; the Board merely solicited their
response to the complaint and furnished cause as to why they be not
proceeded for contravention of the provisions of the Act ibid to comply
with the procedural requirement, sine qua non to launch prosecution
under the Act; by their own choice, they pledged future good conduct
and took positions, seemingly voluntary, however, found by them
embarrassing during the trial. Qaisar Shahzad petitioner was
confronted by the trial Court with Ex.PE during his examination under
section 342 of the Code ibid when he denied to have submitted any
reply whereas Aamir Shahzad petitioner when confronted with his
response evaded the answer. An obstinate bald denial or evasive
response cannot override positive evidence. Similarly, the prosecution
was not required to produce any member of Quality Control Board to
join the witnesses to drive home the charge. The functions of the
Quality Control Board are supervisory/regulatory in nature and as such
for prosecution of an offence under the Act, the Drug Inspector himself
can discharge the onus. The argument is otherwise irrelevant as the
petitioners never opted to summon any member of the Board during the
trial nor any prejudice has been alleged. The entire line of defence is
unrealistically hyper technical. Likewise, no certification was required
by the DRAP as all the registered medicines are officially listed by the
Ministry of Health. Contrary to their counsel, the petitioners never
blamed Dr. Shuja Nawaz as being the man behind the scene; according
to their statements before the Quality Control Board, Dr. Shuja Nawaz
was a qualified person employed by them, statedly absent during the
raid. View concurrently taken by the Courts below being well within the
remit of law is not open to any legitimate exception. Petitions fail. Leave
declined.
Judge
Judge
Judge
Islamabad, the
10th June, 2020
Not approved for reporting
Azmat/-
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mazhar Alam Khan Miankhel
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition Nos. 851-L and 827-L of 2016
(Against the judgment dated 26.05.2020 passed by the Lahore High
Court Lahore in Cr. Appeal No.1003/2012 with M.R. No.196/2012)
Zeeshan alias Shani
(in Cr.P.851-L/2016)
Muhammad Ayub
(in Cr.P.827-L/2016)
…Petitioner(s)
Versus
Muhammad Ayub & another
(in Cr.P.851-L/2016)
The State & another
(in Cr.P.827-L/2016)
…Respondent(s)
For the Petitioner(s):
Mr. Azam Nazeer Tarar, ASC
(in Cr.P.851-L/2016)
Sardar Abdul Majeed Dogar, ASC
(in Cr.P.827-L/2016)
For the State:
N.R.
Date of hearing:
06.08.2020.
ORDER
Qazi Muhammad Amin Ahmed, J.- Junaid Ayub, 20/21,
was shot dead with a .30 caliber pistol on 22.03.2010 at 3:30 p.m.
within the precincts of Police Station City Sumandri, Faisalabad;
incident was reported by his father Muhammad Ayub (PW-2), who
blamed Zishan alias Shani and Abid Ali accused for the crime; both let
off by the police during investigation, tried subsequently by a learned
Additional Sessions Judge in a private complaint, resulting into
acquittal of the latter; convicted under clause (b) of Section 302 of the
Pakistan Penal Code, 1860, the petitioner, however, was sentenced to
death vide judgment dated 14.04.2012, altered into imprisonment for
life by the High Court vide judgment dated 26.05.2016, being
Criminal Petition Nos. 851-L and 827-L of 2016
2
impugned both by the convict as well as the complainant through the
captioned petitions.
Prosecution case is primarily structured upon ocular account
furnished by Asad Ayub and Abid Ali PWs. According to the witnesses,
they were on way when the accused confronted them in the backdrop
of a previous quarrel. Abid Ali, since acquitted, is attributed
exhortation pursuant whereto Zishan alias Shani targeted the
deceased on his chest with solitary shot, confirmed during autopsy
conducted on the same day.
2.
Learned counsel for the complainant contends that there
was no occasion for the courts below to acquit Abid Ali, firmly placed in
the community of intention after both the courts below relied upon the
ocular account through a source aboveboard; the bottom line is that
section 34 of the Code ibid is not a dead letter and the courts are
required to give effect to the legislative intent to bring each accomplice
to the task found guilty in furtherance of common intention. Both the
accused shared the motive and as such there was no space to draw
distinction in their culpability except for the actual shot fatally fired in
compliance with the command, issued by Abid Ali, concluded the
learned counsel. Learned counsel for the convict, on the other hand,
contends that the deceased was done to death in an un-witnessed
occurrence as is evident from the tenor of First Information Report
lodged by deceased’s father who had admittedly not seen the
occurrence; it is argued that Asad Ayub (PW-3), no other than deceased
real brother, would have reported the matter to the police in a normal
course and his induction as a witness heavily reflects upon the veracity
of prosecution case. It is next argued that according to the
investigation conducted by Asghar Ali SI, the murder was in fact
committed by one Usman and it was so confirmed by Naseer and Nasir
who had actually witnessed the occurrence; he has stressed upon the
vagueness of the alleged motive to argue that there was no occasion for
the convict-petitioner to take on the deceased; he has also referred to
non-availability of any casing from the spot and an inconsequential
recovery to conclude that it would be unsafe to maintain the
conviction.
3.
Given the role attributed to Abid Ali, co-accused, in the face
of a non-specific motive and sudden unanticipated encounter, his
acquittal by the learned trial Judge, upheld by the High Court does not
appear to be based upon conclusions that can be viewed as
Criminal Petition Nos. 851-L and 827-L of 2016
3
preposterous or impossible. It is by now well settled that reversal of
acquittal requires strong grounds and cannot be interfered with merely
on the possibility of a contra view. Leave is declined in Criminal
Petition No.827 of 2016. However, in the totality of circumstances, we
consider it expedient to re-appraise evidence qua Zishan alias Shani
convict to ensure safe administration of criminal justice with a view to
examine the investigative conclusions, diametrically incompatible with
the case set up in the crime report. Leave is granted.
Judge
Judge
Islamabad, the
6th August, 2020
Not approved for reporting
Azmat/-
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a
Ii
I
IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE MAQBOOL BAQAR
MR. JUSTICE SA Y Y ED MAZAHAR ALl AKBAR NA QVI
CRIMINAL PETITION NO. 852 OF 2021
(Against the order dated 17.06.2021 of the
Lahore High Court, Rawalpindi Bench,
Rawalpindi passed in Cr.M.No. 1 127-B12021)
Chaudhry Nadeem Sultan
VERSUS
.Petitioner(s)
The State through P. G. Punjab and another
.Respondent(s)
For the Petitioner(s):
Mr. Muhammad Ramzan Chaudhry, Sr. ASC
For the State:
Mr. Abid Majeed, DPG
Mr. Athar Ismail, CPO
Syed Ghazanfar Shah, SSP
Ms. Shazia, DSP
Mr. Sikandar, LO.
Mr. Mukhtar, Ex-1.0.
For the Complainant:
Malik Waheed Anjum, ASC
Date of Hearing: 12.11.2 02 1
ORDER
SAYYED MAZAHAR ALl AKBAR NA (WI, 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 17.06.2021
passed by the learned Single Judge of the Lahore High Court,
Rawalpindi Bench, Rawalpindi, with a prayer to grant post-arrest bail in
case registered vide FIR No. 38512021 dated 11. 03.2021 under Sections
302132414491109134 PPC at Police Station Saddar Berooni,
Rawalpindi 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 rifle fired on different parts of
the deceased whereas the fires made by his co-accused with pistol
landed on the chest and belly of the deceased due to previous enmity.
-1
CRIMINAL PETITION NO.852 OF 2021
-: 2 :-
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. Contends that
though the petitioner is ascribed the direct role of causing fire-arm
injuries but during the course of investigation he was found innocent
and his name was placed in Column No.2 of the report under Section
173 Cr.P.C. Contends that the prosecution has not challenged the
opinion of the police and as such it has attained finality. Therefore, the
petitioner is entitled to the concession of bail as the case of the petitioner
squarely falls under section 497(2) Cr.P.C.
4.
On the other hand, the learned Law Officer, assisted by the
learned counsel for the complainant, has vehemently argued that though
the petitioner has not been challaned by the Investigating Officer, still
there is ample material available on the record to connect the petitioner
with the alleged accusation. Contends that the plea of alibi taken by the
petitioner is artificial and that it can be procured easily. Contends that
the affidavits furnished by 18 persons have no value as the same are
customary in nature. Lastly, contends that inter-se distance between the
place of occurrence and the place where the petitioner claims presence
at the time of occurrence is hardly 20 kilometers which can be covered
within 10-15 minutes through motorcycle. Hence he is not entitled for
the concession of bail.
5.
We have heard the learned counsel for the parties and
perused the available record.
There is no denial to this fact that the occurrence has taken
place on 11. 03.2021 at 2:20 p.m., whereas the matter was reported to
the police at 7:40 p.m. Admittedly there is delay of more than 05 hours
in lodging of the FIR for which no explanation has been rendered by the
prosecution. Whereas the inter-se distance between the place of
occurrence and the Police Station is 06 kilometers. Both these aspects of
the case are connected inter-se which requires determination as per
dictates of justice especially when there is strong motive alleged by the
prosecution. The petitioner is ascribed direct role of causing fire-arm
injury to the deceased, however, the petitioner pleaded plea of alibi and
during the course of investigation the same was found to be correct and
as such the name of the petitioner was placed in column No.2 of the
-.3.-
CRIMINAL PETITION NO. 852 OF 2021
report submitted under Section 173 Cr.P.G. as no recovery has been
affected from the petitioner during the course of investigation. Now the
question which requires determination is whether the case of the
petitioner is frilly covered by the dictum of further inquiry as envisaged
under Section 497(2) Cr.P.G. Perusal of the opinion given by the
Investigating Officer is based upon the GDR of the cell phone of the
petitioner which shows his presence away from the place of occurrence.
We had summoned the GPO and the Investigating Officer vide order
dated 10.11.2021 for a limited purpose to know whether the opinion
given by the Investigating Officer was solely based upon GDR and it can
be made basis to declare any person innocent in a case of heinous
nature. The GPO, present in Court, has stated that about 100 persons
appeared before the investigating Officer amongst those 18 persons
furnished their duly verified affidavits, that at the time of occurrence the
petitioner was present in chehlum of a co-villager and even the son of
deceased had furnished affidavit in this regard wherein it is specifically
stated that at the time of occurrence the petitioner was present over
there. The CDR was taken into consideration only to verify the contents
Of the affidavits and oral statements of the persons who have appeared
in defence of the petitioner before the Investigating Officer. We have
gone through the law on the subject and found that the definition of an
accused person is not provided anywhere in Cr.P.G., rather it was this
Court, for the first time in a salutary judgment reported as
F. B.
A. and another Vs. The State (PLD 1975 SC 506) defined the word
"accused person". The same is reproduced as under:-
"in my view the mere lodging of an information
does not make a person an accused nor does a
person against whom an investigation is being
conducted by the police can strictly be called an
accused. Such person may or may not be sent
UP for trial. The information may be found to be
false. An accused is, therefore, a person charged
in a trial. The Oxford English Dictionary defines
an aaccused o as a person "charged with a
crime" and an"accusation" as an "indictment'.
Aiyer in his Manual on Law Terms also gives the
same meaning. I am of the view, therefore, that
a person becomes an accused only when
charged with an offence."
Lt
CRIMINAL PETITION NO. 852 OF 2021
-: 4 -
Perusal of the above definition clearly reflects that any person against
whom an accusation is made cannot be dubbed as an accused unless
and until he is found involved by the Investigating Officer and in this
regard a specific order for his arrest is made by him. All these
ingredients are missing, therefore, as far as the status of the petitioner
is concerned, he cannot be termed as an accused person. However, we
have been informed that the report under Section 173 Cr.P.C. has been
submitted before the Trial Court and the Court has taken cognizance
while summoning accused person which clearly reflects that the
summon has been issued for furnishing bail bonds which is in
accordance to the procedure laid down under Sections 911204 Cr.P.C.
Therefore, the case of the petitioner squarely falls within the ambit of
Section 497(2) Cr.P. C. calling for flirt her 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
17.06.2021. The petitioner is admitted to bail subject to his furnishing
bail bonds in the sum of Rs.500,0001- with one surety in the like
amount to the satisfaction of learned Trial Court.
7.
Before parting with the order, we have been informed that
co-accused of the petitioner are still at large, therefore, the CPO is
directed to adopt all possible measures for bringing the culprits before
the law strictly in accordance with law. He is further directed to furnish
fortnightly progress reports in this regard for our perusal in Chambers.
Islamabad, the
12th November, 2021
Approved For Reporting
Waqas Naseer/
I
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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.860 OF 2019
AND CMA NO.1760 OF 2019
(Against the judgment of the Lahore High Court,
Lahore dated 13.06.2019 passed in Criminal Appeal
No. 111841/2017)
Tariq Saeed
… Petitioner
Versus
The State
… Respondent
For the Petitioner
:
Mr. Tanveer Iqbal, ASC
Syed Rifaqat Hussain Shah, AOR
For the Respondent
(State)
:
Haider Ali, Addl: Prosecutor General for
NAB
Date of Hearing
:
12.06.2020
JUDGMENT
SAYYED MAZAHAR ALI AKBAR NAQVI, J:-
Crl. M. A No.1760 of 2019. For the reasons mentioned therein, the
documents appended with this petition are allowed to be integral
part of the record.
Criminal Petition No.860 of 2019: The petitioner has sought
leave to appeal under Article 185(3) of the Constitution of Islamic
Republic of Pakistan, 1973, against the judgment dated 13.06.2019
passed by learned Division Bench of Lahore High Court, Lahore in
Criminal Appeal No. 111841 of 2017.
Criminal Petition No.860 of 2019
-: 2 :-
2.
The facts necessitated to disclose the prosecution case
are that petitioner being a public servant in the capacity as XEN
(BPS-18) remained posted in Zila Council for a considerable period at
Lahore. During the subsistence of his service a source report was
generated wherein serious allegations were levelled against the
petitioner that he in the capacity as a public servant while misusing
of authority is involved in corruption and corrupt practices. As a
consequence an enquiry was ordered to be initiated against the
petitioner dated 12.09.2006. During inquiry proceedings, the inquiry
officer scrutinized the allegation at length and submitted a
comprehensive report to the quarter concerned. As the enquiry officer
concurred the details of the source report, the competent authority
while examining the details of the report, ordered for upgradation of
enquiry into investigation with the approval of Chairman, National
Accountability Bureau vide dated 19.10.2010. The gist of the
allegation against the petitioner surfaced during the investigation
conducted by various investigating officers, it was unanimously
concluded that he being a public servant while holding a public
office indulged into corruption and corrupt practices. As a result of
same, he acquired massive immovable properties and was also
holding a number of bank accounts maintained by him which were
squarely disproportionate to known source of his income. The
prosecution further alleged that the petitioner purchased the
properties against the name of his wife Mst. Surayya Tariq as
“Benamidar”. She was also holding bank accounts against her
name although she had no other known source of income.
Criminal Petition No.860 of 2019
-: 3 :-
3.
Soon after completion of investigation proceedings,
reference was chalked out against the petitioner while in terms of
section 18(g) read with Section 24(b) of National Accountability
Ordinance, 1999. Requisite sanction from Chairman, National
Accountability Bureau was obtained, hence, a reference No. 7/2015
dated 12.02.2015 under section 9 (a) (v) (vi) (xii) of National
Accountability Ordinance 1999 was filed before Accountability Court
No.1, Lahore. The learned trial court took the cognizance of the
offences and on the basis of accusation charge was framed against
the petitioner on 07.05.2015. During the course of proceedings
before the learned trial court, prosecution to substantiate the
accusation levelled in the reference produced as many as 14
witnesses. A number of documents were also tendered in evidence.
The learned trial court recorded the statement of petitioner under
section 342 Cr.P.C, however, co-accused Mst. Surayya Tariq died
soon after recording of her statement under section 342 Cr.P.C. as
such the proceedings against her stood abated. The petitioner also
produced Syed Obaid-ur-Rehman, Assistant Commissioner (Inland
Revenue) who appeared as DW-1 in defence of the petitioner,
however, the petitioner himself not opted to appear in his own
defence in terms of section 340 Cr.P.C. Besides this, the petitioner
also tendered in evidence certain documents on 03.03.2017 and
19.05.2017.
4.
The learned trial court after completion of trial found the
allegation levelled against the petitioner stands proved, hence,
sentenced the petitioner under section 10 of National Accountability
Ordinance, 1999 for imprisonment of seven years R.I. He was
Criminal Petition No.860 of 2019
-: 4 :-
further awarded fine of Rs.1,63,00,000/- The farm house belonging
to the petitioner was also ordered to be confiscated in favour of the
State. Being aggrieved by the judgment of the learned trial court
dated
15.11.2017;
the
petitioner
filed
criminal
appeal
No.111841/2017 before the Lahore High Court, Lahore. The learned
Division Bench of Lahore High Court, Lahore vide judgment dated
13.06.2019 dismissed the appeal of the petitioner and the judgment
of the learned trial court was maintained in toto, hence, instant
petition.
5.
At the very outset, learned counsel for the petitioner
argued that prosecution has miserably failed to substantiate the
accusation against the petitioner. Contends that conviction and
sentence has been recorded on the basis of photocopies and even
the documents are not exhibited as per spirit of law. The learned
counsel especially referred the statement of Mahboob-ul-Hassan
(PW-7), therefore, the sentence and conviction recorded against
petitioner is uncalled for. Learned counsel further states that the
petitioner is an old man of 72 years facing incarceration and has
already undergone substantial part of the sentence. Lastly it has
been argued by learned counsel that even if at all it is assumed that
prosecution has succeeded to establish the case, the sentence of the
petitioner is harsh, hence, he prayed for reduction of sentence on the
ground of poor health and old age of the petitioner.
6.
Learned Law Officer appearing on behalf of NAB has
argued that he being involved in white-collar crime cannot seek
exception. It is further argued that being a public office holder he has
crossed all limits and amassed huge properties disproportionate to
Criminal Petition No.860 of 2019
-: 5 :-
his known source of income; hence, he is not entitled for any
leniency. The learned Law Officer contended that the contentions
raised by the learned counsel for the petitioner is not sustainable in
the eye of law as Mahboob-ul-Hassan (PW-7) clerk of Motor
Registration Authority, Excise and Taxation Department at the time
of his statement on 28.10.2015 was in possession of record of the
vehicles registered against the name of the petitioner and his (late)
wife. During the course of proceedings he produced before the court
the attested photocopies whereas the record was also available,
hence, this contention is without any legal justification and is based
upon misconception. Contends that two courts below had given
concurrent findings qua the guilt of the petitioner and he was earlier
involved in such like activities. In this regard, he entered into plea-
bargain in reference No.07/2001 on 08.07.2001. Reference No.
94/2004 and reference No. 48/2016 are still pending adjudication
before Accountability Court, hence, no exception can be taken by this
Court at this stage, however, learned Law Officer could not
controvert the factum of the old age & sickness of the petitioner.
7.
We have heard the learned counsel for the parties at
preliminary stage and gone through the record.
8.
There is no denial to this fact that both the courts below
had attended the contentions raised by learned counsel for the
petitioner minutely and found that accusation against the petitioner
was fully proved. There is no second thought about the involvement
of the petitioner in corruption and corrupt practices, even the
petitioner himself tendered in evidence the record of previous
reference No.07/2001 wherein he entered into plea-bargain
Criminal Petition No.860 of 2019
-: 6 :-
whereupon the application was allowed by competent authority
dated 12.06.2001. The petitioner is also involved in other references,
the detail of which has also been mentioned above which reflects the
antecedent of the petitioner qua his involvement. We are reluctant to
make any observation as it might prejudice his case but facts
remain that reference No. 94/2004 and reference No. 48/2016 are
still pending adjudication before the court of competent jurisdiction.
We have scrutinized the evidence available on the record with due
care and caution. The main stay of the arguments of learned counsel
regarding production of photocopies is not substantiated from the
record rather the record clearly reflected that these were attested
copies when the record of the vehicles under the name of petitioner
and his wife was also available in the court. Even during the course
of cross examination the learned counsel appearing on behalf of the
petitioner has not confronted the examination-in-chief of Mahboob-ul-
Hassan (PW-7) which is assumed that same is an admitted fact.
Any unrebutted piece of evidence during the course of cross
examination leaves only one conclusion that the same is an
admitted by the defence. Otherwise the petitioner was at liberty to
agitate this aspect before the learned trial court as an objection but
the same has not been raised. Even the same could have been
agitated during the proceedings before the learned High Court. We
have perused the record but could not find an iota of evidence
available on the record to substantiate the contention ever raised by
learned counsel for the petitioner before two forums below, hence, at
this juncture of time raising of such plea without substance seems to
be nothing but an afterthought.
Criminal Petition No.860 of 2019
-: 7 :-
9.
As far as the merits of the case are concerned, we do
not find any reason for interference into the findings given by both
the courts below. As far as the contention of the learned counsel
appearing on behalf of petitioner qua the old age and indisposition of
the petitioner is concerned, it is observed that very genesis of white-
collar crime has engulfed the educated-cum-privileged class while
intruding its contours into the society which has almost become
epidemic leaving miserable repercussions individually as well as
collectively. It is detrimental to the very fabric of the society.
However, while relying on case titled " MUHAMMAD ASHRAF alias
Chaudhry versus THE STATE" (1994 SCMR 667) and while taking
into consideration that the petitioner is an old man with poor health
condition, whereas he has already undergone substantial part of
sentence recorded by both the courts, we deem it appropriate to
meet the ends of justice reduce the sentence already inflicted upon
the petitioner from seven years to five years while maintaining the
sentence of fine of Rs.1,63,00,000/- and confiscation of farm-house
belonging to petitioner in favour of the State. In the above said
terms, this petition is converted into appeal and partly allowed
.
Judge
Judge
Judge
Islamabad,
12.06.2020
Approved for reporting.
Athar
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE UMAR ATA BANDIAL
MR. JUSTICE AMIN-UD-DIN KHAN
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
CRIMINAL PETITION NO.863-L OF 2021
(Against the order dated 01.06.2021 of the
Lahore High Court, Lahore passed in Crl. Misc.
No.29729-B/2021)
Muhammad Ajmal
…Petitioner(s)
Versus
The State and another
…Respondent(s)
For the Petitioner(s):
Mr. Shahid Azeem, ASC
For the State:
Mr. Tariq Rafiq Bhandera, ASC
Um-e-Habiba, S.I.
For the Complainant(s):
Mr. Seerat Hussain Naqvi, ASC
Date of Hearing:
15.11.2021
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
01.06.2021 passed by the learned Single Judge of the Lahore High
Court, Lahore with a prayer to grant post arrest bail in case
registered vide FIR No. 51 dated 14.07.2020 under Sections 20, 21
and 24 of Pakistan Electronic Crime Act, 2016 at Police Station FIA
Cyber Crime Circle, Lahore in the interest of safe administration of
criminal justice.
2.
As per the contents of the crime report, it is alleged by
the complainant that the petitioner along with co-accused kidnapped
his wife on 13.11.2019 and captured her objectionable videos by
intoxicating her, a criminal case for kidnapping was lodged at Police
Station Factory Area, Lahore. It was further alleged that the
CRIMINAL PETITION NO.863-L OF 2021
-: 2 :-
petitioner and his co-accused have threatened and harassed him by
sharing the video through Whatsapp from Mobile No.0305-7016978
to his mobile No.0300-2927130. The petitioner and his co-accused
have also threatened the complainant to withdraw the case,
otherwise they would upload the video globally.
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 objectionable videos were shared by co-accused to whom
concession of bail has already been extended. Further contends that
the bail to the co-accused was granted on the basis of statement
made by the victim herself. Contends that following the rule of
consistency, the petitioner also deserves to be released on bail.
Contends that there is no denial to this fact that the instrument used
for sharing the video exists against the name of the co-accused.
Contends that the case of the petitioner is at better footings as
compared to the co-accused, therefore, he is entitled for concession
of bail.
4.
On the other hand, the learned Law Officer, assisted by
the learned counsel for the complainant, opposed the grant of bail on
the ground that during the course of investigation the petitioner was
found to be with the co-accused who had acted under the patronage
and instructions of the petitioner and he was declared as the main
culprit. Therefore, the case of the petitioner is distinguishable from
the co-accused and as such he does not deserve any concession 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 it is very unfortunate
that this occurrence had taken place wherein objectionable videos
were shared setting the law in motion while attracting the provisions
of Sections 20, 21 and 24 of Pakistan Electronic Crime Act, 2016.
During the course of arguments, it transpired that the co-accused of
the petitioner has already been granted bail on the basis of
concessional statement made by the victim herself. Apart from this,
CRIMINAL PETITION NO.863-L OF 2021
-: 3 :-
we have noted that the maximum punishment under the statute is
05 years which do not attract the prohibitory clause of Section 497
Cr.P.C. The learned Law Officer frankly conceded that the
instrument used for sharing the objectionable video was of the co-
accused and as such the case of the petitioner is at better footings
as compared to co-accused. As the co-accused of the petitioner had
already been enlarged on bail, therefore, the petitioner is entitled for
the concession of post-arrest bail on the plea of consistency.
Reliance is placed on the case reported as Muhammad Fazal @ Bodi
Vs. The State (1979 SCMR 9) wherein this Court held as under:-
“Without going into the merits of the case and the
various rulings mentioned in the petition for leave to
appeal
requiring
our
consideration
and
interpretation, we think that the petitioner should
be released on bail on the principle of requirement
of consistency in the same case and for the similar
reason that the co-accused to whom a role similar
to that of the petitioner was attributed had been so
released by another learned Judge of the same
High Court.”
6.
Prima facie there are sufficient grounds to take into
consideration that the case of the petitioner is fully covered by
Section 497(2) Cr.P.C. calling for further inquiry to his guilt.
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.100,000/- with one surety in
the like amount to the satisfaction of learned Trial Court.
JUDGE
JUDGE
JUDGE
Lahore, the
15th of November, 2021
Approved for reporting
Waqas Naseer/*
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE IJAZ UL AHSAN
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
CRIMINAL PETITION NO. 879 OF 2021
(On appeal against the order dated 15.07.2021 passed
by the Lahore High Court, Multan Bench in Crl. Misc.
No. 4853-B/2021)
Muhammad Baqir
… Petitioner
VERSUS
The State and another
… Respondents
For the Petitioner:
Mr. Rafaqat Islam Awan, ASC
Ch. Akhtar Ali, AOR
For the Respondent (2): Mian Muhammad Ismail Thaheem, ASC
a/w respondent No. 2
For the State:
Mirza Muhammad Usman, DPG
Date of Hearing:
06.12.2021
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 Qamar Abbas by the learned Lahore High Court,
Multan Bench vide order dated 15.07.2021 in case registered vide
FIR No. 146 dated 04.04.2020 under Sections 302 / 109 / 148 /
149 / 452 PPC at Police Station Nawan Shehar, District Khanewal,
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 along with co-accused while armed
with firearms trespassed into the house of the complainant and
started firing. The respondent made fire shot with his rifle, which
landed on the backside of the right hand of Majid Ali, paternal
cousin of the complainant. The co-accused of the respondent also
fired on the person of the said Majid Ali, which hit on the left side of
his belly and he fell on the ground and succumbed to the injuries.
Criminal Petition No. 879/2021
2
3.
At the very outset, it has been argued by learned
counsel for the petitioner that the respondent was specifically
nominated in the promptly lodged crime report with the specific
allegation of causing firearm injury on the person of the deceased.
Contends that the ocular evidence corroborates with the medical
evidence but the learned High Court did not take into consideration
this aspect of the matter. Contends that the respondent remained
absconder for a period of about one year, which clearly shows that
he was fully involved in the commission of the crime. Contends that
the respondent is hardened criminal and is involved in so many
criminal cases of murder and dacoity etc. Contends that to prevent
the complainant from pursuing the case, the respondent had also
launched murderous assault on the complainant and in this regard
another criminal case has been registered against him and if the bail
granted to him by the learned High Court is not cancelled, there is
every possibility that he will again try to harm the complainant.
Lastly contends that the order passed by the learned High Court
being perverse and fanciful, the same may be set aside.
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 the alleged injury ascribed to the respondent on the person of
the deceased is on non-vital part of the body and could not result in
death in the ordinary course of nature, therefore, the learned High
Court has rightly granted bail to the respondent.
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 respondent is
nominated in the crime report wherein a specific accusation of
causing firearm injury on the backside of right hand of the deceased
has been leveled against him. Although the matter was reported to
Criminal Petition No. 879/2021
3
the Police after about 4 hours but keeping in view the inter se
distance between the place of occurrence and the police station i.e.
18 kilometers and the fact that in such like situations, the people
firstly try to save the life of injured, the same would be considered a
promptly lodged FIR. 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 mis-identification. The injury ascribed to the respondent is
fully supported by medical evidence. We have been informed that
after the registration of the present FIR, the respondent had filed
application for pre-arrest bail before the learned Trial Court but
when he could not get the relief sought for, he approached the
learned High Court and ultimately had withdrawn his pre-arrest bail
petition on 09.09.2020 but despite that he did not surrender, fled
away and remained absconder for a considerable period of time.
The perusal of available record shows that the respondent had
allegedly launched murderous assault on the complainant on
22.01.2021 for which a separate criminal case bearing FIR No.
41/2021 has been got registered by the complainant party.
Otherwise, the mode and manner of occurrence shows that the
respondent along with co-accused had trespassed into the house of
the complainant with intent to kill the deceased as they started
straight firing upon the deceased. Mere the fact that the fire shot
made by the respondent hit on the hand of the deceased does not
make any difference because the respondent had made a direct fire
on the deceased with the intention to kill but it hit on his hand. The
postmortem report clearly depicts that both injuries are contributory
toward death of deceased. Prima facie, the respondent is vicariously
liable for the offence committed and had shared the common
intention to take life of the deceased. However, the learned High
Court did not take into consideration any of the above-said aspects
of the matter, therefore, we are constrained to hold that the
reasoning advanced by the learned High Court while granting bail to
the respondent is artificial in nature. We are under obligation to
attend to the facts and circumstances of the lis brought before us
and to evaluate the same in such a manner so that no injustice is
likely to be done to either of the party. In the instant case, the
Criminal Petition No. 879/2021
4
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. Upon assessment of the
available record, we have found that the impugned order 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 facts and has passed an
order which is perverse, fanciful and arbitrary, 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 High Court
vide impugned order dated 15.07.2021.
JUDGE
JUDGE
Islamabad, the
6th of December, 2021
Approved For Reporting
Khurram
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
MR. JUSTICE DOST MUHAMMAD KHAN
MR. JUSTICE MANZOOR AHMAD MALIK
Criminal Petition No.888/2015
(On appeal from the judgment dated 20.10.2015
passed by the Lahore High Court, Rawalpindi Bench
in Crl.Misc. No.1787-B/2015)
Naseem Akhtar
…Petitioner
Versus
The State
..Respondent
For the petitioner:
Mr. S.M. Ayub Bokhari, ASC
Ch. Akhtar Ali, AOR
For the respondent:
Raja Inaam Amin Minhas, Spl. Prosecutor, ANF
Date of hearing:
27.1.2016
ORDER
Dost Muhammad Khan, J.— After arguing the case at
length, the learned counsel for the petitioner stated that if the Jail
Authorities are directed to extend all required facilities to the suckling
baby
and
her
mother
(the
accused
petitioner)
during
confinement/detention and the Trial Court is directed to conclude the
trial within a month, then he will not press this petition.
2.
We have perceived from the fax massage of the
Superintendent Jail, Rawalpindi that the petitioner is a suckling baby of
the age of one year and six months and depends on breast feeding.
The Superintendant Central Jail, Rawalpindi is directed to ensure that
the baby shall not suffer due to un-nutrition and all required standard
facilities be provided to the baby and her mother, which is required in
such cases, while the Trial Court is directed to conclude the trial within
one month, after receiving copy of this order. If the prosecution or the
defense delays in the conclusion of the trial, the Trial Court may resort
Crl.P.888/15
2
to take appropriate action by imposing action and may adopt any
coercive measure to ensure the conclusion of the trial.
3.
If, in case, the trial is not concluded within one month and
the delay in the conclusion of the trial is not attributable to the
petitioner or any person, acting on her behalf then, fresh bail petition
be considered favourable to her, by the Trial Court.
With these observations, this petition is disposed of.
Judge
Judge
Islamabad, the
27th January, 2016
Nisar /-‘
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