Datasets:

mwz

/

Pak-Law

like 0

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 Cr. Appeals No.76-L, 77-L and 78-L of 2017 (On appeal from judgment dated 02.12.2013 of the Lahore High Court, Lahore passed in Criminal Appeal Nos.650/2009, 78-J/2010, 2575/2010 and CSR Nos.13-T/2009, 14-T/2010 & 72-T/2010) Akhmat Sher (in Criminal Appeal No.76-L/2017) Rabnawaz (in Criminal Appeal No.77-L/2017) Alam Sher (in Criminal Appeal No.78-L/2017) ... ...Appellant(s) VERSUS The State (in all the cases) …Respondent(s) For the Appellant(s): Malik Muhammad Suleman Awan, ASC (in Criminal Appeal No.76-L/2017) Mr. Ijaz Ahmed Janjua, ASC (in Criminal Appeal No.77-L/2017) Ms. Bushra Qamar, ASC (in Criminal Appeal No.78-L/2017) For the State : Ch. Muhammad Mustafa, DPG Date of Hearing: 04.7.2019. JUDGMENT Qazi Muhammad Amin Ahmed, J.- In the backdrop of a dispute over plying of public vehicles, Muhammad Ramzan and Hassan Jamal, deceased, were done to death at 7:00 a.m. on 31-7-2007 within the remit of Police Station Mitha Tiwana District Khoshab. Incident was reported by Zafar Iqbal; Akhmat Sher, Manzoor Ali, Muhammad Iqbal, Rabnawaz, Muhammad Ramzan and Alam Sher along with three unknown assailants, differently armed, were nominated as accused; of them, Akhmat Sher is attributed a fire shot to Muhammad Ramzan deceased followed by a burst by Rabnawaz; Alam Sher accused is ascribed a rifle shot to Hassan Jamal deceased. Autopsies confirmed homicidal death by fire shots. Spot inspection includes seizure of Cr. Appeals No.76-L, 77-L and 78-L of 2017 - 2- blood and vehicles, the bone of contention, besides a motorbike last driven by Hassan Jamal deceased. The accused were arrested at different points of time; Muhammad Saeed, arrayed as abettor, was first in the dock followed by Muhammad Ahsan, introduced as one of the unknown assailants, as well as Manzoor Ali, co-accused, acquitted, on different dates, before appellants' trial; Akhmat Sher and Muhammad Ramzan were tried by an Anti Terrorism Court at Sargodha; indicted for homicide as well as terrorism, Akhmat Sher was convicted and sentenced to death on both counts whereas Muhammad Ramzan was acquitted from the charge vide judgment dated 24-4-2009; Rabnawaz and Muhammad Iqbal were next to appear before the Court; Rabnawaz was convicted and sentenced whereas Muhammad Iqbal was let off on 16-2-2010; Alam Sher was last tried to receive a guilty verdict on 21-10-2010. The convicts impugned their convictions and sentences through separate appeals, decided by the High Court through different judgments of even date; convictions were upheld, however, with alteration of death penalties into imprisonment for life, vires whereof, are being challenged through leave of the Court. Since the appeals are bound by a common thread, having arisen out of the same incident, these are being decided through this single judgment. 2. Zafar Iqbal and Atta Muhammad furnished ocular accounts during trials against Akhmat Sher, Muhammad Ramzan, Rabnawaz and Muhammad Iqbal while the former was alone to point his finger on Alam Sher; they furnished graphic details of the events preceding the occurrence as well as subsequent thereto; dispute commenced on preceding day i.e. 30-7-2007 when the appellants along with co-accused forcibly took passengers already boarded in Muhammad Ramzan's vehicle and it is in this backdrop that, on the fateful day, they compelled Muhammad Ramzan deceased to withdraw his vehicle and it was on his refusal that Akhmat Sher and Rabnawaz targeted him with their weapons; misfortune brought Hassan Jamal at the scene on a motorbike; he was fired by Alam Sher when he attempted to apprehend Muhammad Iqbal, acquitted co-accused; details related by the witnesses are corroborated by investigative conclusions regarding the motive of the crime as Cr. Appeals No.76-L, 77-L and 78-L of 2017 - 3- well as autopsy reports; the witnesses are in a comfortable unison on all the salient aspects of the occurrence as well as details collateral therewith in the background of a dispute which is not unusual in transport business. Recoveries of weapon, though inconsequential on account of Investigating Officer's failure to collect casings from the spot for comparison, nonetheless, are consistent with the injuries inflicted upon the deceased. Absconsion is yet another circumstance favouring the prosecution. The trial Court rightly settled liability of the appellants assigned fatal harm to the deceased and we have not been able to find out any circumstance warranting a different view. Convictions on both counts of homicide and sentences consequent thereupon are not open to any legitimate exception, however, appellants' conviction under Sections 7 (a) & 21-L of the Anti Terrorism Act 1997 requires reconsideration. Every crime is repugnant, murder being most abhorrent and shocking; impacts and aftermaths of violence upon the victims, their families and surroundings are seldom benign with fear invariably concomitant thereof, nonetheless, special jurisdiction under the Anti Terrorism Act, 1997 has been created to deal with situations enumerated in Section 6 thereof; these fall outside the ambit of personal pursuits and vendettas, carried out through violence; both the deceased fell victim to a business rivalry and, thus, the appellants were not actuated by the designs contemplated under the Act ibid, therefore, their convictions under sections 7(a) and 21-L of the Act ibid and sentences consequent thereupon are set aside; remainders of the convictions as well as sentences thereof are kept intact. With the above modification, criminal appeals are disallowed. JUDGE JUDGE Lahore, the 4th July, 2019 Not approved for reporting Azmat Ali/* JUDGE Cr. Appeals No.76-L, 77-L and 78-L of 2017 - 4-

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 Appeal No.8-P & 9-P/2017 (On appeal from the judgment dated 30.04.2015 passed by the Peshawar High Court, Peshawar & Abbottabad Bench in Criminal Appeals No.440-P & 458-P of 2013 respectively). Fazal Subhan (In Crl.A.8-P/2017) Rehmat Ullah (In Crl.A.9-P/2017) …Appellant(s) VERSUS The State (In Crl.A.8-P/2017) Abdul Haseeb and another (In Crl.A.9-P/2017) …Respondent(s) For the Appellant(s) : Malik Haroon Iqbal, ASC (in both cases) For the Respondent(s) (in both cases) : Mr. Mujahid Ali Khan, Additional Advocate General, Khyber Pakhtunkhwa Date of Hearing : 02.05.2019 ORDER Qazi Muhammad Amin Ahmed, J.- Criminal Appeal No.8-P/2017 and Criminal Appeal No.9-P/2017, filed by Fazal Subhan and Rehmat Ullah, appellants herein, respectively, arisen out of judgment dated 1.8.2013 by Judge, Anti Terrorism Court, Peshawar subsequently affirmed by the learned Peshawar High Court, bear a common thread; these are being decided through this single judgment. 2. The appellants along with co-accused, Shah Jee, were tried for abducting Abdul Haseeb, PW to extract ransom with co- accused Amjad being away from law. They were convicted under Section 365-A of Pakistan Penal Code, 1898 read with Section 7(e) of the Anti Terrorism Act, 1997 and sentenced to imprisonment for Criminal Appeal No.8-P & 9-P/2017 - 2 - life. For a charge under Section 17(3) of the Offences against Property (Enforcement of Hudood) Ordinance, 1979, they were additionally sentenced to 10 years S.I. Sentences to run concurrently with benefit under Section 382-B of Code of Criminal Procedure, 1908. Appeals filed by the convicts met with no better fate on 30.4.2015 and it is in this backdrop, leave has been granted to re-appraise the entire evidence with a view to ensure safe administration of criminal justice. 3. According to the complainant, he needed a premises on rent and was induced by Shah Jee, accused to visit the one; he was taken to a house wherein four accomplices, subdued him; he was enchained and deprived of cell phone handset, cash Rs.10,000/- and registration book of his cab, it is alleged that the captors demanded rupees five million from his brother, Luqman. The abductee somehow managed his escape to appear before the police in person. 4. Learned counsel for the appellants contends that there was no occasion for appellants’ conviction in the absence of confidence inspiring evidence to support the charge and thus the learned trial Court, as well as, the High Court ran into error in returning guilty verdicts. Contrarily, the learned Law Officer has defended the impugned judgments. 5. Upon perusal of evidence, we have found the very genesis of the prosecution case as being fraught with doubts. Various pieces of evidence collected by the Investigating Officer do not satisfactorily connect the appellants with the commission of crime. Memo of pointing out of place of occurrence cannot be equated with disclosure within the contemplation Article 40 of the Qanoon-e-Shahadat Order, 1984. How the abductee made his escape good despite being held by no less than four persons so as to appear without let or hindrance before the police is quite intriguing. Demand of ransom from abductee’s brother Luqman is a verbal assertion alone with no forensic proof regarding conversation on the cell phone. Vehicle was not recovered from any of the accused and the person who produced it is not in the array. On the whole, we have found the prosecution case far from Criminal Appeal No.8-P & 9-P/2017 - 3 - being confidence inspiring and thus consider it unsafe to maintain the conviction. Criminal Appeals No.8-P and 9-P/2017 are allowed, impugned judgments are set aside and the appellants shall be set at liberty, if not required in any other case. JUDGE JUDGE Peshawar, the 2nd of May, 2019 Ghulam Raza/* JUDGE

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 Appeal No.80-L of 2017 (On appeal from the judgment dated 19.02.2014 passed by the Lahore High Court, Bahawalpur Bench in Criminal Appeal No.142-J/2010/BWP and Murder Reference No.14 of 2010). Mansab Ali …Appellant(s) VERSUS The State …Respondent(s) For the Appellant(s) : Mr. Shahzad Hassan Sheikh, ASC (State Counsel) For the Complainant : Mr. Nasib Masih, ASC For the State : Mr. Mazhar Sher Awan, Additional Prosecutor General Date of Hearing : 10.05.2019 JUDGMENT Qazi Muhammad Amin Ahmed, J.- Rustam Ali was shot dead at 4.00 p.m. on 14.9.2008 within the remit of Police Station Mecloed Gunj. Incident was reported by his father Muhammad Bilal. Besides Mansab Ali, appellant, Muhammad Ahmad, Muhammad Mazhar, Muhammad Wahid, Muhammad Saleem, Muhammad Ismail, Muhammad Ifrahim, Muhammad Yousaf and Muhammad Tahir, differently armed were arrayed as accused in the crime report. Fatal shot is attributed to the appellant, whereas Muhammad Yousaf accused is assigned a club blow to the complainant. Motive for the crime is dispute over distribution of water. The accused claimed trial which resulted into appellant’s conviction under clause (b) of Section 302 of Pakistan Penal Code, 1860 with penalty of death by a learned Additional Sessions Judge vide judgment dated 17.3.2010; co-accused were acquitted from the charge. A learned division bench of Lahore High Court vide impugned judgment dated 19.2.2014 maintained the conviction, however altered the penalty of death into imprisonment for life. Criminal Appeal No.80-L of 2017. 2 2. Prosecution case is structured upon ocular account. According to Muhammad Bilal, PW-6, the appellant made two successive shots on the deceased, first landing on the right arm, while second hitting the back; Muhammad Mansha, PW-7 took the same position. Both of them are in a diametrical conflict with the position taken in the crime report wherein the appellant is assigned solitary shot landing on the deceased’s chest. Confusion is further compounded by the statement of Dr. Javid Ahmed, PW- 3, who noted an entry wound on the posterior aspect of left shoulder; the bullet exited from the chest valve; the second fire shot was on the right upper arm with its corresponding exit. This is not in line with the prosecution case that the appellant targeted the chest as the wound noted by the Medical Officer is an exit wound. Both the witnesses have been duly confronted with their deviation from previous statements. From amongst the acquitted accused, Muhammad Yousaf was assigned a club blow to Muhammad Munawar, PW-8, noted by the Medical Officer as a painful swelling; his acquittal went without challenge. The learned Law Officer has not been able either to justify witnesses’ departure from previous statements or to explain conflict between ocular account and medical evidence. Though with roles somewhat trivial nonetheless, en bloc acquittal of co-accused on the same evidence is yet another predicament facing the State. The prosecution case is fraught with doubts, thus it would be unsafe to maintain the conviction. Resultantly, the appeal is allowed, the impugned judgment is set aside. The appellant shall be set at liberty forthwith, if not required in any other case. JUDGE JUDGE Lahore, the 10th of May, 2019 Ghulam Raza/* JUDGE Criminal Appeal No.80-L of 2017. 3

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI MR. JUSTICE JAMAL KHAN MANDOKHAIL MR. JUSTICE ATHAR MINALLAH CRIMINAL APPEAL NO. 82 OF 2022 (Against the judgment dated 08.11.2016 passed by the Peshawar High Court, Abbottabad bench in Cr. Appeal No. 139-A/2012) Imran Mehmood …Appellant(s) VERSUS The State and another …Respondent(s) For the Appellant(s): Mr. Haider Mehmood Mirza, ASC For the State: Raja Muhammad Rizwan Ibrahim Satti, ASC For the Complainant: Ms. Humaira Jabeen, in person Date of Hearing: 13.02.2023 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Appellant Imran Mehmood along with two co-accused was tried by the learned Sessions Judge, Haripur pursuant to a case registered vide FIR No. 566 dated 23.12.2010 under Sections 302/324/34 PPC read with Section 13 of the Arms Ordinance at Police Station Saddar, Haripur for committing murder of Ghulam Murtaza and Ghulam Kibriya, father and uncle of the complainant and for attempting to take life of complainant and her mother. The learned Trial Court vide its judgment dated 22.10.2012 while acquitting the two co-accused convicted the appellant under Section 302(b) PPC and sentenced him to death. He was also directed to pay compensation amounting to Rs.200,000/- each to the legal heirs the deceased. In appeal the learned High Court maintained the conviction and sentence of death awarded to the appellant by the learned Trial Court. Being aggrieved by the impugned judgment, the appellant filed Criminal Petition No. Criminal Appeal No. 82/2022 -: 2 :- 1235/2016 before this Court wherein leave was granted by this Court vide order dated 08.02.2022 and the present appeal has arisen thereafter. 2. The prosecution story as given in the impugned judgment reads as under:- “2. To sum things up stated facts leading to the pressing appeal are that the complainant (Mst. Umaira Jabeen) while reporting the crime in the Casualty Ward of DHQ Hospital Haripur alleged that she was married to the accused-appellant some three (03) years back and after spending one year, due to strained relations, her husband gave her oral divorce and shunted her out from his house, thus, she was residing at her parents' house, situated at Hassan Abdal. However, on the fateful day at 17:30 hours, consequent upon obtaining a decree from the Family Court regarding dowry articles, she alongwith her mother (Mst. Naseem Bibi) and both the deceased namely, Ghulam Murtaza and Ghulam Kibriya (father and uncle respectively) including two bailiffs of the court, went to the house of the accused-appellant for taking the dowry articles, where besides the accused-appellant, his brother Ashiq and Mst. Asmat Sultan Gohar, his mother were also present. During the course of loading household dowry articles in the vehicle, Ashiq and Mst. Asmat Sultan Gohar, brother and mother of the accused-appellant, raised Lalkara to him to kill them, whereupon the accused-appellant started firing with his pistol upon the complainant party, as a result her father was hit on his chest and her uncle sustained firearm injuries on his neck and head, thus both fell on the ground and died on the spot, whereas she and her mother escaped unhurt, hence the FIR ibid.” 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 thirteen witnesses. In his statement recorded under Section 342 Cr.P.C, the appellant pleaded his innocence and refuted all the allegations leveled against him. However, he did not 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 evidence in his defence. 4. At the very outset, learned counsel for the appellant contends that there are glaring contradictions and dishonest improvements in the statements of the eye-witnesses, which have escaped the notice of the learned courts below. Contends 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 the medical evidence contradicts the ocular account. Criminal Appeal No. 82/2022 -: 3 :- Contends that the prosecution has not been able to prove motive as alleged, which causes serious dent in the prosecution case. Contends that the reasons given by the learned High Court to sustain conviction of the appellant are speculative and artificial in nature, therefore, the impugned judgment may be set at naught. In the alternative, learned counsel contended that the occurrence took place at the spur of the moment and the same is sufficient mitigating factor to reduce the sentence of death into imprisonment for life. 5. On the other hand, learned Law Officer assisted by the complainant in person submitted that to sustain conviction of an accused on a capital charge, un-rebutted ocular evidence alone is sufficient. Contends that the ocular account is supported by the medical evidence, therefore, the appellant 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 the record with their able assistance. 7. It is the prosecution case that complainant Mst. Humaira Jabeen was married with the appellant but due to strained relations, the appellant had given him divorce a year before the occurrence. The complainant had instituted a suit for recovery of dowry articles in the court of competent jurisdiction wherein a decree had been issued against the appellant. On the fateful day and time, the complainant party along with two bailiffs of the court had arrived at the house of appellant Imran to take the dowry articles pursuant to the decree of the court. However, while the household articles were being loaded in the vehicle parked in the street, the appellant took out a pistol and opened fire at the complainant party resulting into death of father and uncle of the complainant. The unfortunate incident took place on 23.12.2010 at 05:30 pm whereas the crime report was lodged in the Casualty Ward of DHQ Hospital, Haripur at 06:25 pm just within an hour of the occurrence. The distance between the place of occurrence and the Police Station was 7 kilometers whereas the distance between Police Station and DHQ Criminal Appeal No. 82/2022 -: 4 :- Hospital, Haripur was 7.7 kilometers. Thus, it can be safely said that FIR was lodged with promptitude. Promptness of FIR prima facie shows truthfulness of the prosecution case and it excludes possibility of deliberation and consultation. There was hardly any time with the complainant or other witnesses to fabricate a false story. The occurrence took place in the broad day light and the parties were known to each, therefore, there is no chance of misidentification. The ocular account in this case has been furnished by Mst. Humaira Jabeen, complainant (PW- 11), Munsif Khan, bailiff (PW-8) and Muhammad Sharif, bailiff (PW-9). These prosecution witnesses were subjected to lengthy cross-examination by the defence but nothing favourable to the appellant or adverse to the prosecution could be produced on record. These witnesses have given all necessary details of occurrence qua the date, time, place, name of accused, name of witnesses, manner of occurrence, kind of weapon used in the occurrence, the locale of injuries and the motive of occurrence. 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. There is no denial to this fact that the PWs Munsif Khan and Muhammad Sharif were bailiffs of the Family Court Haripur, who went to the house of the appellant in compliance with the decree passed by the Family Court. No doubt they are independent witnesses. They did not know the appellant before the occurrence. They also did not have any enmity or ill-will against the appellant to falsely involve him in the case. Although Mst. Humaira Jabeen was related to the deceased. However, 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 out-rightly. If the presence of the related witnesses at the time of occurrence is natural and their evidence is straight forward and confidence inspiring then the same can be safely relied upon to award capital punishment. Learned counsel for the appellant could not point out any reason as to why the complainant has falsely involved the appellant in the present case and let off the real Criminal Appeal No. 82/2022 -: 5 :- culprit, who has brutally murdered her father and uncle. Substitution in such like cases is a rare phenomenon. These witnesses have reasonably explained the circumstances of their going to the house of the appellant i.e. they went there to take the dowry articles pursuant to a decree issued by the Family Court. The medical evidence available on the record corroborates the ocular account so far as the nature, time, locale and impact of the injuries on the persons of the deceased is concerned. Even otherwise, it is settled law that where ocular evidence is found trustworthy and confidence inspiring, the same is given preference over medical evidence and the same alone is sufficient to sustain conviction of an accused. Reliance is placed on Muhammad Iqbal Vs. The State (1996 SCMR 908), Naeem Akhtar Vs. The State (PLD 2003 SC 396), Faisal Mehmood Vs. The State (2010 SCMR 1025) and Muhammad Ilyas Vs. The State (2011 SCMR 460). It is settled principle of law that the value and status of medical evidence and recovery is always corroborative in its nature, which alone is not sufficient to sustain conviction. Minor discrepancies and conflicts appearing in medical evidence and the ocular version are quite possible for variety of reasons. During occurrence witnesses in a momentary glance make only tentative assessment of the distance between the deceased and the assailant and the points where accused caused injuries. It becomes highly improbable to correctly mention the number and location of the injuries with exactitude. Minor discrepancies, if any, in medical evidence relating to nature of injuries do not negate the direct evidence as witnesses are not supposed to give pen picture of ocular account. Even otherwise, conflict of ocular account with medical evidence being not material imprinting any dent in prosecution version would have no adverse affect on prosecution case. Requirement of corroborative evidence is not of much significance and same is not a rule of law but is that of prudence. During the course of proceedings, the learned counsel contended that there are material discrepancies and contradictions in the statements of the eye-witnesses but on our specific query he could not point out any major contradiction, which could shatter the case of the prosecution in its entirety. It is a well settled proposition of law that as long as the material aspects of the evidence have a ring of Criminal Appeal No. 82/2022 -: 6 :- truth, courts should ignore minor discrepancies in the evidence. If an omission or discrepancy goes to the root of the matter, the defence can take advantage of the same. While appreciating the evidence of a witness, the approach must be whether the evidence read as a whole appears to have a ring of truth. Minor discrepancies on trivial matters not affecting the material considerations of the prosecution case ought not to prompt the courts to reject evidence in its entirety. Such minor discrepancies which do not shake the salient features of the prosecution case should be ignored. To prove the motive part of the prosecution story, the witnesses of the ocular account appeared in the witness box and deposed against the appellant. The perusal of the record reflects that neither the defence seriously disputed the motive part of the prosecution story nor the PWs were cross-examined on this aspect of the matter. In this view of the matter, we are constrained to hold that the prosecution has successfully proved the motive against the appellant. The Investigating Officer had collected four crime empties from the place of occurrence. The appellant was arrested on the same day after couple of hours of the occurrence along with the weapon of offence i.e. pistol .30 bore. Although, the weapon of offence and the crime empties were sent to Forensic Science Laboratory together on 28.01.2011 but as the appellant was arrested on the same day, therefore, the same is of no help to the appellant. According to the positive report of FSL, the empties were found fired from the weapon recovered from the appellant. 8. After three days of his arrest, on 27.12.2010, the appellant appeared before Fazal Gul, Judicial Magistrate to confess his guilt. Acquitted co-accused Ashiq was also produced before the Judicial Magistrate but it was only the appellant who showed his willingness to record his confessional statement. The said Judicial Magistrate appeared during trial as PW-3. He in categorical terms stated that the handcuffs of the appellant were removed; the Police, State counsel and the Naib Court were ousted from the court; the accused was told that he is not bound to make any statement and was given sufficient time to think over the matter. He was also informed that he is not bound to make any Criminal Appeal No. 82/2022 -: 7 :- confessional statement and if he does so, it would be used against him. The appellant also signed the confessional statement and put his thumb impression over it. When the appellant was confronted with such confessional statement while recording his statement under Section 342 Cr.P.C. he did not deny the same but stated that the same was extracted by the Police by using force with connivance of complainant party and the same was not recorded under the requirements of law. However, we are of the view that such assertion is just an afterthought. The evidence available on record clearly suggests that the appellant did not inform the Judicial Magistrate about the alleged coercion at the time of making his judicial confession. The appellant also did not place on record any evidence to show that the Investigating Officer was inimical towards him and forced him to confess his crime. According to Article 119 of the Qanun-e-Shahadat Order, 1984, the burden of proof to any particular fact lies on the person who wishes the court to believe its existence. There is no denial to this fact that the prosecution has to discharge the burden of proving the case beyond reasonable doubt. However, once the prosecution becomes successful in discharging the said burden, it is incumbent on the accused who had taken a specific defence plea to prove the same with certainty. Even otherwise, if the confessional statement of the appellant is excluded from consideration, there is sufficient material available on the record in the shape of unbiased and unimpeachable ocular account supported by medical evidence, motive and recovery to sustain conviction of the appellant. 9. In the alternative, learned counsel contended that the occurrence took place at the spur of the moment, without any premeditation on the part of the appellant, therefore, the said aspect may be considered as a mitigating circumstance to reduce the sentence of death into imprisonment for life. However, we are not convinced with the argument of the learned counsel. The perusal of evidence available on record clearly shows that pursuant to the outcome of proceedings carried out in the Family Court, the appellant knew that the complainant is coming to take her dowry articles. The testimonies of all the PWs reveal Criminal Appeal No. 82/2022 -: 8 :- that he was duly armed with pistol and consequent events reflect his mindset. Such evidence is sufficient to indicate premeditation of appellant, therefore, he does not deserve any leniency in the quantum of punishment. Keeping in view the facts and circumstances of the present case, we are of the view that the prosecution has established each limb of its case by producing unimpeachable and trustworthy evidence. The learned High Court has evaluated the evidence in its true perspective and has come to the conclusion, which is just and equitable, hence it is neither arbitrary nor perverse. No exception can be taken to the findings arrived at by the learned High Court. 10. For what has been discussed above, we do not find any merit in this appeal, which is dismissed. JUDGE JUDGE JUDGE Islamabad, the 13th of February, 2023 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmad Malik Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeal No.85 of 2020 (Against judgment dated 29.09.2015 passed by the Lahore High Court Lahore in Crl. Appeal Nos.122-J with M.R. No.131/2011) Muhammad Imran …Appellant(s) Versus The State …Respondent(s) For the Appellant(s): Mr. M. Siddique Khan Baloch, ASC For the State: Mirza Abid Majeed, Deputy Prosecutor General Punjab Date of hearing: 29.10.2020. JUDGMENT Qazi Muhammad Amin Ahmed, J.- Indicted for committing Qatl-i-Amd of his wife Nasreen Bibi, 30, as well as daughters Aneela Bibi, 17, and Sawaira, 9, at 8/9:00 a.m. on 8.7.2010, within the precincts of Police Station Chatiana District Toba Tek Singh, Muhammad Imran appellant, convicted under clause (b) of section 302 of the Pakistan Penal Code, 1860, had been condemned to death on three counts by the learned Sessions Judge Toba Tek Singh vide judgment dated 8.3.2011, upheld/confirmed by the High Court vide impugned judgment dated 29.9.2015, vires whereof, are being assailed by leave of the Court. 2. Nasreen Bibi, deceased, was appellant’s second wife; she mothered three children, namely, Samiullah, Abu Bakar and Swaira; Aneela Bibi was born from appellant’s earlier wedlock; the marriage went on the rocks; upon complaints of violent treatment, appellant’s in-laws repeatedly intervened to restore congeniality between the spouses albeit with no success. According to the complainant, on the Criminal Appeal No.85 of 2020 2 fateful day, the appellant once again violently lost temper and for that he was sent for by his daughter, in pursuant whereto, he alongwith Abdul Ghaffar (PW-7) and Muhammad Naveed (given up PW) visited the family at about 8/9:00 a.m. and once again tried to persuade the couple to amicably settle their differences; it was shortly thereafter that the appellant locked the deceased inside a room; attracted by the commotion, the witnesses saw the appellant through a window while dealing repeated Toka blows to the deceased; despite attempts, they failed to barge entry in the room to rescue them; after dealing with the deceased, the appellant, brandishing the weapon, took to the heels. The victims succumbed to the injuries at the spot. It is alleged that the appellant was annoyed by complainant’s visit on his daughter’s call that he avenged upon the deceased. Autopsies commenced at 4:30 p.m; Nasreen Bibi was noted with 11 incised wounds on various parts of her body whereas the girls suffered respectively 4 and 5 wounds of identical nature, generating hemorrhagic shock in each case, opined as cause of death. After his arrest, pursuant to a disclosure, the appellant led to recovery of bloodstained Toka (P-12) on 18.7.2010; blood scrapings were forensically confirmed that of human origin. The appellant confronted prosecution evidence with the following plea: “I am involved in this case on the basis of suspicion. I was on job on that night. I am innocent. I came at the place of occurrence when police had reached there. Witnesses have deposed against me being closely related to the complainant.” However, led no evidence to establish the alibi. 3. Learned counsel for the appellant contends that occurrence was an un-witnessed affair inasmuch as arrival of the witnesses at the crime scene is far from being probable and, thus, it would be unsafe to rely upon their testimony; the bottom line is that they being chance witnesses are not worthy of credit. It is next argued that the motive asserted by the prosecution is not only false but inconceivable as well, inasmuch as in the face of a run of the mill matrimonial dispute, the appellant had no earthly reason to violently slaughter his family that included his two daughters, having no nexus with the controversy. Alternately, it is argued that since the episode is shrouded into mystery, sentence of imprisonment for life, being a safer course, would meet the ends of justice. The learned Law Officer faithfully defended the impugned judgment; highlighting shockingly gruesome brutality, Criminal Appeal No.85 of 2020 3 he has opposed alteration of death penalty into imprisonment for life; according to him, in the absence of any judicially recognized mitigating circumstance, the wage was rightly settled. 4. Heard. Record perused. 5. Prosecution case is structured upon ocular account furnished by Abdul Sattar (PW-6) and Abdul Ghaffar (PW-7); former is appellant’s father-in-law whereas the latter is distantly related with him and as such they are not expected to swap the culprit of gruesome murders with the appellant, himself figuring as son-in-law within the family bond. Nasreen Bibi was survived by two sons Samiullah and Abu Bakar who escaped assassin’s wrath; it is inconceivable that the complainant would falsely substitute father of his grand children, already devastated by the loss of their mother as well as sister. Circumstances of the case and evidence brought on the record do not admit any space to even obliquely entertain any hypothesis of substitution, otherwise a rare phenomena, antithetical to retributive human instinct. Similarly, uncongenial matrimonial relationship has not seriously been disputed and, thus, the cited motive cannot be discounted nor considered as inconceivable so as to extend any premium to the appellant. On the contrary, appellant’s awfully disproportionate violent response on his wife’s approach to her father for rescue and awful brutality inflicted by him on her and two unconcerned innocent daughters, one from his previous marriage, do not provide him any space to hide behind the shield of disproportionality of his appalling behaviour. Likewise, visit by the witnesses on the fateful day, cannot be viewed as improbable or unnatural. A father visiting his distressed daughter to mediate an ongoing dispute cannot be characterized as a witness arriving at the scene per chance. Both the witnesses furnished graphic details of the occurrence as well as the events collateral therewith; in a comfortable and confidence inspiring unison, they faced no serious challenge during the cross-examination, otherwise inconsequential and directionless, mainly comprising bald suggestions, vehemently denied. Recovery of Toka (P-12) provides additional corroboration, stained with blood of human origin, the weapon recovered upon appellant’s disclosure is singularly consistent with the injuries suffered by all the deceased. Ghulam Qadir, SI (PW-10) carried out the investigation; he unambiguously controverted position taken by the defence. Prosecution has successfully driven home the charge beyond Criminal Appeal No.85 of 2020 4 reasonable doubt. On a most careful examination of the record, we have not been able to find out even a smallest space to entertain any hypothesis other than appellant’s guilt; his callously reckless disregard for human life in a trivial domestic situation without provocation and infliction of gruesome brutality on the poor souls of his own clan is chillingly shocking to the judicial conscience and, thus, wage settled by the trial Court, upheld by the High Court is conscionable on scales; he deserved nothing less. Appeal disallowed. Judge Judge Judge Islamabad, the 29th October, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmad Malik Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeal No.9-L of 2016 (On appeal from the judgment dated 20.06.2013 passed by the Lahore High Court, Lahore in Criminal Appeal No.2012 of 2011). Zulfiqar Ali …Appellant(s) VERSUS Imtiaz, etc. …Respondent(s) For the Appellant(s) : Mr. Maqbool Hussain Sh, ASC Mr. Imtaz A. Shaukat, AOR For the Respondent(s) Mr. Khalid Masood Sandhu, ASC For the State : Ch. Muhammad Mustafa, Deputy Prosecutor General, Punjab Date of Hearing : 03.06.2019 JUDGMENT Qazi Muhammad Amin Ahmed, J.-Impugned herein is judgment dated 20-6-2013 of a learned Judge-in- Chamber of the Lahore High Court Lahore whereby he acquitted Imtiaz son of Mehr Ali and Jehangir son of Pehlwan, respondents from the charge; indicted by a learned Addl. Sessions Judge at Tandlianwala, they were returned a guilty verdict; convicted under section 302 read with section 34 of the Pakistan Penal Code, 1860, each was sentenced to imprisonment for life along with compensation of Rs.50,000/- for committing Qatl-i-Amd of Falak Sher deceased; they were additionally convicted under section 364 read with section 34 of the Code ibid and sentenced to 5-years Rigorous Imprisonment with fine of Rs.20,000/- each; sentences were ordered to run concurrently with benefit of section 382-B of the Code of Criminal Procedure, 1898. Iftikhar co-accused has been acquitted from the charge whereas Fayyaz is still away from the law. Criminal Appeal No.9-L of 2016. 2 On the fateful day i.e. 25-7-2009, at about 7:30 p.m. the respondents alongside the co-accused, confronted the deceased and fatally shot him after his abduction. Zulfiqar Ali (PW-6), Muhammad Yar (PW-7) and Nasir Ali (PW-8) furnished ocular account. According to the witnesses, the deceased was fatally shot within their view, whereupon they shifted him to the hospital in injured condition. Motive for the crime is a dispute raging over family honour. 2. According to the autopsy report, deceased was brought dead through a police constable and there is nothing on the record to even obliquely suggest witnesses' presence in the hospital; there is no medico legal report to postulate hypothesis of arrival in the hospital in injured condition. The witnesses claimed to have come across the deceased and the assailants per chance while they were on way to Chak No.504/GB. There is a reference to M/s. Zahoor Ahmed and Ali Sher, strangers to the accused as well as the witnesses, who had first seen the deceased lying critically injured at the canal bank and it is on the record that they escorted the deceased to the hospital. Ali Sher was cited as a witness, however, given up by the complainant. These aspects of the case conjointly lead the learned Judge-in-Chamber to view the occurrence as being un-witnessed so as to extend benefit of the doubt consequent thereupon. View taken by the learned Judge is a possible view, structured in evidence available on the record and as such not open to any legitimate exception. It is by now well settled that acquittal once granted cannot be recalled merely on the possibility of a contra view. Unless, the impugned view is found on the fringes of impossibility, resulting into miscarriage of justice, freedom cannot be recalled. Criminal Appeal fails. Appeal dismissed. JUDGE Lahore, the 3rd of June, 2019 Azmat Ali/* JUDGE

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 Appeal No.91-L of 2017 (On appeal from the judgment dated 23.04.2014 passed by the Lahore High Court, Bahawalpur Bench in Criminal Appeal No.140 of 2010 and Murder Reference No.12 of 2010). Noor Ahmad …Appellant(s) VERSUS The State, etc …Respondent(s) For the Appellant(s) : Mian Muhammad Tayyab, ASC For the Complainant(s) : Mr. Naveed Ahmad Khawaja, ASC For the State : Mr. Mazhar Sher Awan, Additional Prosecutor General, Punjab Date of Hearing : 17.05.2019 JUDGMENT Qazi Muhammad Amin Ahmed, J.- Shehnaz Begum, statedly, betrothed with Noor Ahmad, appellant was done to death inside the safety of her home by the later, in the wake of family’s refusal to tie the knot. It is alleged that on the fateful day at about 10.00 a.m. the appellant armed with a pistol surprised the family; shot the deceased within the precincts in witnesses’ view; incident was reported by her brother Mumshad Farid, PW. A solitary fire shot surrounded by blackened edges, on the left side of forehead with corresponding exit, blamed as cause of death was noted by the medical officer. Genital examination revealed that hymen was ruptured with red margins; introitus admitted two fingers; secretion of whitish discharge with blood traces was noticed; rigor mortis was fully developed; swabs were subsequently found stained with seminal traces. Arrested on 14.5.2009, the appellant led to the recovery of pistol P-5, forensically found wedded with the Criminal Appeal No.91-L of 2017. 2 casing secured from the spot, dispatch preceding arrest; when indicted he claimed trial. Complainant joined by his brother, Shehzad Farid furnished ocular account to drive home the charge. They unanimously accused the appellant for having murdered their sister on family’s refusal to give him deceased’s hand due to his questionable antecedents. The appellant confronted prosecution evidence with his own story; he blamed the family being itself responsible for the murder; he cited reasons that included, deceased’s virtues as well as her legated property; he also denied engagement with the deceased. The learned trial Judge unimpressed by the plea proceeded to convict the appellant under clause (b) of Section 302 read with Section 449 of Pakistan Penal Code, 1860; he was sentenced to death and imprisonment for life respectively alongside compensation as well as fine. The learned High Court without adverting to appellant’s conviction under Section 449 of the Code ibid and sentence consequent thereupon, while upholding the judgment, altered penalty of death into imprisonment for life with benefit of Section 382-B of the Code of Criminal Procedure, 1898. 2. Occurrence took place inside a residential premises in a rural neighborhood, at a point of time when presence of the witnesses can hardly be doubted; whether they came up with the whole truth, nonetheless, is another question. As claimed by the prosecution, the deceased was a nubile virgin, however, autopsy findings suggest a carnal encounter not long before she met homicidal death. This in retrospect makes it difficult to dismiss position taken by the appellant out of hand. Similarly, going by the motive alleged in the crime report, the family members who rescinded the proposal were more apt targets than the poor soul; her legacy is also not disputed. Vendetta notwithstanding, seemingly, there are beneficiaries of death other than the appellant, with many other options in life. Occurrence statedly took place at 10.00 a.m. whereas the autopsy was conducted at 5.00 p.m. development of complete rigor mortis on the body of a young lady in hot weather, belies point of time of assault given in the crime report. Dispatch of casing on 13.5.2019, a day before appellant’s arrest is a suspect circumstance. Position taken by the Criminal Appeal No.91-L of 2017. 3 appellant when juxtaposed with the totality of prosecution’s evidence, does not appear to be entirely beside the mark. Findings recorded by the medical officer are realistically intriguing, casting doubts, neither illusionary nor imaginary. It would be unsafe to maintain the conviction. Therefore, by extending the benefit of the doubt to the appellant, Criminal Appeal 91-L/2017 is allowed, impugned judgment is set aside; he shall be released forthwith, if not required in any other case. JUDGE JUDGE Lahore, the 17th of May, 2019 Ghulam Raza/* JUDGE

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE SH. AZMAT SAEED MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE FAISAL ARAB CRIMINAL APPEAL NO. 93 OF 2013 (On appeal against the judgment dated 19.11.2012 passed by the High Court of Balochistan, Quetta in Criminal Jail Appeal No. 11/2012) Muhammad Sadiq … Appellant VERSUS The State … Respondent For the Appellant: Mr. Muhammad Amjad Iqbal Qureshi, ASC Syed Rifaqat Hussain Shah, AOR For the State: Mr. Tahir Iqbal Khattak, Addl. P.G. Balochistan Date of Hearing: 16.11.2016 JUDGMENT FAISAL ARAB, J.- On 20.02.2000 at 11 a.m., one Lashkar Khan lodged an FIR under Section 302 PPC alleging that on the previous day i.e. 19.02.2000 at 7.15 a.m. the appellant committed murder of his cousin, Abdullah by firing at him with Kalashnikov. The appellant, who is a teacher by profession and nephew of the complainant, absconded. The trial nevertheless proceeded, the prosecution recorded its evidence and the appellant was convicted in absentia and sentenced to undergo life imprisonment. After about ten years of his conviction, the appellant surfaced and voluntarily surrendered. Then on his application, his conviction in absentia was set aside and de novo trial was ordered. After conclusion of the trial, the appellant was convicted and Criminal Appeal No. 93/2013 2 sentenced to suffer life imprisonment, fined Rs.100,000/- and in default thereof was to undergo simple imprisonment for a further period of six months. The appellant preferred appeal against his conviction before the High Court which concurred with the trial court’s decision and dismissed the same. The appellant then filed Jail Petition in this Court from which the present appeal has arisen. 2. Learned counsel for the appellant argued that the alleged incident, as reported in the FIR, took place on 19.02.2000 early in the morning at 7.15 a.m. yet no FIR was registered on that date. He submitted that it has come on the record that on the date of the incident, the deceased Abdullah was buried and it was only on the next day at 11 a.m. in the morning that PW-1 Lashkar Khan lodged FIR wherein he has only stated that the appellant committed murder of Abdullah by firing at him with a Kalashnikov. It was not mentioned in the FIR that anyone saw the murder taking place. He submitted that it was only at the stage of recording of the evidence that PW-1, Lashkar Khan in his deposition stated that on the day of the incident he heard gunshots and when we went to the place from where sound of the gunshots came, he saw that the appellant had a fight with the deceased Abdullah on account of a dispute over disconnection of water and on account of such dispute the appellant murdered Abdullah by firing at him with his Kalashnikov. In his deposition PW-1, Lashkar Khan further stated that when he reached the place of occurrence PW-2, Anees-ur-Rehaman was already present there, he then went to the Tehsilar of the area to lodge report of the incident. PW-2 Anees-ur-Rehman in his deposition had stated that when he reached the place of occurrence after hearing gunshots he saw the appellant near the mountain with a Kalashnikov in his hand. The learned counsel for the appellant further stated that not a semblance Criminal Appeal No. 93/2013 3 of such assertions made by PW-1 and PW2 in their respective depositions find mention in the FIR as in the FIR it was simply stated by PW-1 that the appellant had committed murder of the deceased Abdullah with a Kalashnikov. Learned Counsel further submitted that in his cross-examination PW-1, Lashkar Khan, contrary to what he stated in his examination-in-chief about witnessing the incident, admitted that he had not seen for himself the murder taking place and it was PW-2, Anees- ur-Rehman, who had narrated to him that he saw the appellant near the mountain with a Kalashnikov. Learned Counsel lastly submitted that no medical examination was conducted on the deceased in order to ascertain the real cause of his death and merely on the assertion made in the deposition of PW-2 Anees-ur-Rehman that he saw the appellant near the mountain, which is at some distance from the place of alleged incident, with a Kalashnikov, that the appellant was found guilty of committing murder of Abdullah. 3. On the other hand, learned Additional Prosecutor General, Balochistan argued that both the courts below on the basis of circumstantial evidence that had come on the record implicated the accused with the commission of crime and that the abscondence of the appellant for a period of more than ten years also raises the presumption of guilt against him and mere absence of medical examination is of no help to the appellant in presence of statements of PWs, who had no enmity with him. 4. We have examined the evidence and the material that has come on the record. It is an admitted position that after the alleged incident had taken place at 7:15 a.m. in the morning of 19.02.2000, last rites of the deceased were performed and even thereafter the matter was not reported to Tehsildar for registration of FIR on that day. The Tehsildar, Mr. Criminal Appeal No. 93/2013 4 Nazar Hussain, who was responsible to record FIR and act as investigating officer of the incident, had appeared as prosecution witness as PW-4. He deposed that it was on 20.2.2000, that PW-1, Lashkar Khan, came to his office at 11 a.m. and reported the incident of murder of Abdullah that had taken place the previous day. Tehsildar’s statement that the incident was reported to him the next day was not rebutted by the complainant in any manner. It seems that the deceased was quietly buried on the date of the incident without the incident being reported to the Tehsildar for the registration of FIR. It was only on the next day after 28 hours of the occurrence of the incident that PW-1, Lashkar Khan reported the matter to the Tehsildar for the purposes of lodging FIR. Obviously, the Tehsildar, who was also investigating officer, could not see for himself that the deceased had sustained firearm injuries, as the deceased had already been buried the previous day. So when the investigating officer had not seen for himself the dead body, what to speak of sending it for the necessary medical examination for ascertaining the cause of death. Also, at no stage thereafter the dead body was sought to be exhumed for such purpose. This even makes the very cause of death of the deceased highly doubtful as the assertion of the prosecution that the deceased died of gunshot injuries would remain shrouded in mystery. Both PW-1 and PW-2 have also admitted in their respective cross- examinations that they were not eye-witnesses of the incident. The case of the prosecution was thus scaled down to the level of only seeing the appellant having a Kalashnikov in his hand from a considerable distance from the place of the incident. Furthermore, PW-1 Lashkar Khan had stated in his deposition that the distance between his house and the place of occurrence is about half a mile and from the sketch produced as Exhibit P/4-A between the two places there is plantation of Date trees. These two places and the foot of the Criminal Appeal No. 93/2013 5 mountain from where the appellant was seen is further away. Hence coming out of one’s house and then recognising someone from a distance of about one Kilometre at 7:15 a.m. in the morning of peak winter season is also not confidence inspiring piece of evidence, keeping in view that none of such vital aspects of the case have has been narrated in the FIR. In the evidence what prevailed with the trial court and the appellate court to convict / maintain conviction of the appellant was that the prosecution witness namely PW-2 Anees-ur-Rehman had deposed that soon after the incident he saw the appellant from a distance with a Kalashnikov in his hand. Once the version of PW-1 that he and PW-2 both were the eye witnesses of the incident stood demolished in cross- examination, the appellant’s conviction based on another version of PW-2 Anees-ur-Rehman that after the incident had happened, he only saw the appellant from a distance having a Kalashnikov in his hand, was equally not reliable keeping in view that the second version, like the first one, is also not stated in the FIR and above all this, the absence of medical examination of the deceased, conviction of the appellant was not justified at all. We have also noted that no plausible explanation has come on the record as to why the FIR was lodged belatedly on the next day i.e. 28 hours after the incident, when it has come in the evidence that distance between the place of the incident and the office of the Tehsildar even on foot was of two hours. 5. Keeping in view the relationship of the complainant of the FIR with the deceased, who was his cousin and the appellant, who was his nephew and the fact that they all jointly owned undivided piece of agricultural land then in search of ascertaining motive for murder, wild imagination may spring several possibilities. However, conviction of an accused can only be based upon concrete evidence, which Criminal Appeal No. 93/2013 6 beyond reasonable doubt leads the Court to the conclusion that the accused before it is guilty of committing the reported crime. Hence, in the circumstances of the case, reliance on the prosecution’s story by the two Courts below, which was not even narrated in the FIR, was not justified at all. The fact that the appellant absconded and was not traceable for considerably long period of time could also not be made sole basis for his conviction when the other evidence of the prosecution is doubtful as it is riddled with contradictions. This being so, we are left with no other alternative but to hold that the prosecution had failed to establish beyond reasonable doubt that the deceased Abdullah died of gunshot injuries and that it was the appellant who had committed his murder. 6. From what has been discussed above, the impugned judgment is not sustainable in law. Consequently, this appeal is allowed and the impugned judgment is set aside. The appellant is acquitted of the charge of committing murder of Abdullah. He shall be released from jail forthwith unless required in any other criminal case. JUDGE JUDGE JUDGE Islamabad, the 16th of November, 2016 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Asif Saeed Khan Khosa, CJ Mr. Justice Mushir Alam Mr. Justice Manzoor Ahmad Malik Mr. Justice Sardar Tariq Masood Mr. Justice Ijaz Ul Ahsan Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Syed Mansoor Ali Shah Criminal Appeals No. 95 and 96 of 2019, Civil Appeal No. 10-L of 2017 and Criminal Appeal No. 63 of 2013 (Against the judgments dated 05.12.2007, 27.04.2017, 22.11.2016 & 24.09.2012 passed by the Lahore High Court, Lahore in Criminal Appeals No. 397-J of 2006, 587-J of 2014 & 342-J of 2011 and Capital Sentence Reference No. 1-T of 2006 & 40-T of 2014 and Writ Petition No. 15608 of 2016) Ghulam Hussain (in Cr. A. 95 of 2019) Muhammad Azeem, etc. (in Cr. A. 96 of 2019) Tanvir (in C. A. 10-L of 2017) Sikandar Hayat (in Cr. A. 63 of 2013) …Appellants versus The State, etc. (in Cr. A. 95 of 2019) The State, etc. (in Cr. A. 96 of 2019) Prosecutor-General, etc. (in C. A.10-L of 2017) The State, etc. (in Cr. A. 63 of 2013) …Respondents In attendance: Mr. Shahid Azeem, ASC Mr. Javed Iqbal Raja, ASC Mr. Burhan Moazam Malik, ASC Mian Pervaiz Hussain, ASC Syed Tayyab Mehmood Jaffari, ASC Mr. Muhammad Ishtiaq Ahmed Raja, ASC Raja Abdul Ghafoor, AOR Malik Ghulam Mustafa Kandwal, ASC Mr. Kamran Murtaza, ASC Mr. Abid Hussain Saqi, ASC Mr. Muhammad Sadiq Baloch, ASC Ch. Munir Sadiq, ASC Mr. Zulfiqar Khalid Maluka, ASC Mr. Khadim H. Sandhu, ASC Criminal Appeal No. 95 of 2019, etc. 2 On Court’s Notice: Mr. Sajid Ilyas Bhatti, Deputy Attorney-General of Pakistan Mr. Tariq Mehmood Jehangiri, Advocate-General, Islamabad Mr. Ahmed Awais, Advocate- General, Punjab Ch. Faisal Farid, Additional Advocate-General, Punjab Mr. Ahmed Raza Gillani, Additional Prosecutor-General, Punjab Barrister Shabbir Hussain Shah, Additional Advocate-General, Sindh Mr. Salim Akhtar, Additional Prosecutor-General, Sindh Mr. Zahid Yousaf Qureshi, Additional Advocate-General, Khyber Pakhtunkhwa Syed Baqar Shah, State Counsel, Balochistan Mr. Ayaz Khan Swati, Additional Advocate-General, Balochistan Date of hearing: 02.04.2019 JUDGMENT Asif Saeed Khan Khosa, CJ.: The meanings, scope and import of the term ‘terrorism’ defined in section 6 of the Anti- Terrorism Act 1997, as amended from time to time, have been a subject of controversy in this Court for some time and different Honourable Benches of varying strength deciding different cases have differed with each other in the past and have understood and interpreted the said term differently. It is in this backdrop that the present Larger Bench has been constituted so as to put an end to that controversy. 2. The facts of the present appeals giving rise to the issue at hand are summed up as follows: Ghulam Hussain v The State (Criminal Appeal No. 95 of 2019) After a regular trial Ghulam Hussain appellant was convicted by the trial court on two counts of the charge under section 302(b), PPC for killing two minors and was sentenced to death on each Criminal Appeal No. 95 of 2019, etc. 3 count. He was also convicted on two counts of the charge under section 7(a) of the Anti-Terrorism Act, 1997 and was sentenced to death on each such count. His appeal filed before the High Court was dismissed and all his convictions and sentences recorded by the trial court were upheld and confirmed. Leave to appeal was granted by this Court in order the reappraise the evidence and also to consider as to whether the provisions of the Anti-Terrorism Act, 1997 were applicable to the facts and circumstances of the case or not. Muhammad Azeem and 3 others v The State (Criminal Appeal No. 96 of 2019) The appellants were convicted by the trial court for offences under section 302(b), PPC and section 7(a) of the Anti-Terrorism Act, 1997 and were sentenced to death each for committing the said offences besides having been convicted and sentenced for some other offences. The appellants filed a joint appeal before the High Court which was dismissed and all their convictions and sentences were upheld and maintained except their sentences of death on two counts of the charge which sentences of death were reduced by the High Court to imprisonment for life each on each of the relevant counts of the charge. Leave to appeal was granted by this Court in order to reappraise the evidence and also to consider as to whether the provisions of the Anti-Terrorism Act, 1997 were attracted to the facts and circumstances of the case or not. Tanvir v Prosecutor General Punjab, Lahore, etc. (Civil Appeal No. 10-L of 2017) In this case the investigating agency had deleted section 7 of the Anti-Terrorism Act, 1997 from the FIR and the Anti-Terrorism Court-II, Lahore had refused to treat the case as one of terrorism. A writ petition filed in that regard before the High Court succeeded and the case was ordered to be transferred to the Anti-Terrorism Court for trial. Leave to appeal was granted by this Court to determine as to whether the provisions of the Anti-Terrorism Act, 1997 were attracted to the case or not. Criminal Appeal No. 95 of 2019, etc. 4 Sikandar Hayat v The State (Criminal Appeal No. 63 of 2013) The appellant was convicted by the trial court for an offence under section 302(b), PPC read with section 149, PPC and was sentenced to imprisonment for life besides having been convicted and sentenced for an offence under section 148, PPC read with section 149, PPC. The appellant’s appeal was dismissed by the High Court and leave to appeal was granted by this Court in order to reappraise the evidence. 3. Before making an attempt to understand as to what the term ‘terrorism’ defined in section 6 of the Anti-Terrorism Act, 1997 denotes it may be advantageous to recapitulate how different acts, events, episodes and phenomena have from time to time been perceived or understood in different parts of the world as terrorism and distinct from ordinary and usual crimes howsoever heinous in nature. 4. History is full of instances where likeminded groups of people have resorted to violence as a tool for achieving political, ideological and religious ends. Jewish sects Zealots and Sicarii (or Sicarris), using small daggers called sicae hidden in their cloaks to stab people in crowds and then melting away in the throng, attacking the Roman occupiers of Judea and their allies in public places between 2 B.C. and 70 A.D.; the Assassins of Persia and Syria, Muslims belonging to the Ismaili sect who were called the Assassins because they were given hashish (hashishin) before being launched for terrorist acts, killing their targets and threatening the governments of several states between the 11th and 13th centuries; suicidal attacks carried out by different groups against the colonial rule in India, Indonesia and Philippines in the 18th and 19th centuries; Russian anarchists attacking members and supporters of the Tsarist regime with explosives at the end of the 19th century; Japanese Kamikaze pilots launching suicide attacks against American ships in the Pacific ocean during World Criminal Appeal No. 95 of 2019, etc. 5 War II, particularly in the Battle of Okinawa in April 1945 wherein some 2,000 Kamikaze pilots rammed fully fuelled planes into more than 300 ships killing about 5,000 Americans and about 2000 Kamikaze; Hizbullah supporters launching devastating attacks against the American and French forces in Lebanon in the year 1983; the Liberation Tigers of Tamil Eelam (LTTE) using hundreds of suicide bombers and killing thousands of people including Indian Prime Minister Rajiv Gandhi in the year 1991 and Sri Lankan President Premadasa in the year 1993; and the Marxist- Nationalist Kurdistan Worker's Party (PKK) carrying out many suicide attacks in Turkey against a range of targets during the end of the last century and beginning of the current century have all been universally perceived and acknowledged as terrorists indulging in acts of terrorism. 5. There are also many other instances in history where some individual acts or collective activity were, and are, perceived and accepted as terrorism and not just commission of normal, though heinous, offences. In the year 1881 anarchists killed the Russian Tsar Alexander II and 21 bystanders; in the year 1901 anarchists killed the US President McKinley as well as King Humbert I of Italy; World War I started in the year 1914 when anarchists killed Archduke Ferdinand of Austria; the British Raj referred to Bhagat Singh, Chandrasekhar Azad and many other Indian freedom fighters as terrorists; guerrilla fighters from Mao Zedong to Ho Chi Minh and Fidel Castro killed civilians during their revolutionary campaigns and they too were called terrorists until they triumphed; after World War II some Jewish groups in Palestine, i.e. Haganah, Irgun and Stern Gang fought for the creation of a Jewish state, bombing hotels and installations and killing civilians and the British, who then governed Palestine, called those Jewish groups terrorists and many of those terrorists including Moshe Dayan, Yitzhak Rabin, Menachem Begin and Ariel Sharon later became leaders of the independent state of Israel and, ironically, those former terrorists then derided terrorism, applying this label to the Arabs, including Yasser Arafat, fighting for the very same Criminal Appeal No. 95 of 2019, etc. 6 nationhood that the Jews had fought for earlier; in Germany in the years 1968 to 1992 the Baader-Meinhoff Gang killed dozens, including the head of Treuhand, the German privatization agency; in Italy the Red Brigades kidnapped and killed Aldo Moro, a former prime minister, and the Japanese Red Army was an Asian version of that; Japan was also the home of Aum Shinrikyo, a Buddhist cult that tried to kill thousands in the Tokyo metro system using nerve gas in the year 1995; in Europe the Irish Republican Army has been a Catholic terrorist organization for almost a century; Spain and France face a terrorist challenge from ETA and the Basque terrorist organization; Lord's Salvation Army in Uganda and Boko Haram in Nigeria are universally acknowledged as terrorist outfits; the Afghan freedom fighters were called the Mujahideen (holy warriors) by the West when they were fighting the Soviet occupying forces but they are now branded as terrorists when they are fighting to oust the American occupying forces; the Muslim freedom fighters in the Indian occupied Kashmir, the Sikhs led and inspired by Bhindranwale in Punjab, the United Liberation Front and Bodo of Assam, militant groups in Tripura, Christian Mizos mounting an insurrection for decades, Christian Nagas waging a freedom struggle and the Maoist groups operating in no less than 150 out of India 's 600 districts are all termed by India as terrorists; and the savagery perpetrated by Talibans of different shades in Afghanistan and Pakistan for the last many decades is generally accepted and treated as acts of terrorism. 6. The historical context of terrorism given above shows that at different times in history terrorism has been resorted to for achieving different political, ideological or religious objectives. There are many explanatory theories about terrorism in modern times but the one advanced by David C. Rapoport, Professor Emeritus of Political Science at the University of California, Los Angeles, in the year 2004 (published in his journal Terrorism and Political Violence) has received wide acceptance. The theory propounded by him is known as the ‘waves of terrorism’ theory and according to him modern terrorism can be divided into four waves Criminal Appeal No. 95 of 2019, etc. 7 which are Anarchists (1880s-1920s), Anti-Colonial (1920s-1960s), Left Wing (1960s-1990s) and Religious (1990 to date). He maintains that each wave came and died out and that these waves have at times overlapped also. The common factor in all those waves is that all the relevant acts of violence were and are universally recognized as terrorism because the unlawful use of violence was and is meant to achieve political, ideological or religious goals. By now the international community understands quite well that terrorism is a species quite distinct from all other usual and private crimes howsoever heinous or gruesomely executed. 7. In his book 21 Lessons for the 21st Century (published by Random House LLC, New York in 2018) the author Yuval Noah Harari has come up with a very interesting, and quite apt, analysis of how terrorists operate and succeed in their objectives. The following part of his analysis is quite enlightening: “Though the challenges are unprecedented, and though the disagreements are intense, humankind can rise to the occasion if we keep our fears under control and be a bit more humble about our views. Terrorists are masters of mind control...terrorism is a military strategy that hopes to change the political situation by spreading fear rather than by causing material damage. In this respect, terrorists resemble a fly that tries to destroy a china shop. The fly is so weak that it cannot move even a single tea-cup. So how does a fly destroy a china shop? It finds a bull, gets inside its ear, and starts buzzing. The bull goes wild with fear and anger, and destroys the china shop. This is what happened after 9/11, as Islamic fundamentalists incited the American bull to destroy the Middle Eastern china shop. Now they flourish in the wreckage. And there is no shortage of short-tempered bulls in the world. Terrorism is a very unattractive military strategy, because it leaves all the important decisions in the hands of the enemy. Terrorists are so weak that they cannot wage war so they opt instead to produce a theatrical spectacle that they hope will provoke the enemy and cause him to overreact. By killing a handful of people the terrorists cause millions to fear for their lives. Terrorists don't think like army generals. Instead, they think like theatre producers. Because we intuitively understand that terrorism is theatre, we judge it by its emotional rather than material impact. Criminal Appeal No. 95 of 2019, etc. 8 Terrorists undertake an impossible mission: to change the political balance of power through violence, despite having no army. Every now and then a state loses its temper and reacts far too forcefully and publicly, thus playing into the hands of the terrorists. The legitimacy of the modern state is based on its promise to keep the public sphere free of political violence. Consequently, sporadic acts of political violence that kill a few dozen people are seen as a deadly threat to the legitimacy and even survival of the state. A small coin in a big empty jar makes a lot of noise. The theatre of terror generates visceral fear of anarchy, making people feel as if the social order is about to collapse. The state is driven to respond to the theatre of terror with its own theatre of security. So instead of acting quietly and efficiently, the state unleashes a mighty storm, which not infrequently fulfills the terrorists' most cherished dreams. How then should the state deal with terrorism? A successful counter-terrorism struggle should be conducted on three fronts: First, governments should focus on clandestine actions against the terrorist networks. Second, the media should keep things in perspective and avoid hysteria. The theatre of terror cannot succeed without publicity. The third front is the imagination of each and every one of us. The success or failure of terrorism therefore depends on us. If we allow our imagination to be captured by the terrorists and then we overreact to our own fears, terrorism will succeed. If we free our imagination from the terrorists and then we react in a balanced and cool way, terrorism will fail.” This analysis also confirms that terrorists operate on a level different from that on which ordinary criminals operate, their operations and tactics are different and the offence of terrorism is more concerned with the object and design behind an action than with the action itself. 8. Since the year 1974 different laws have been introduced in our country in order to deal with the menace of terrorist activities and terrorism and the first serious attempt to understand the nature and scope of such an offence was made by a Division Bench of the Lahore High Court, Lahore in the case of Basharat Ali v Special Judge, Anti-Terrorism Court-II, Gujranwala and two others (PLD 2004 Lahore 199). In that case the history of terrorism was traced, different definitions of ‘terrorism’ adopted in the laws of different countries were mentioned, all the precedent cases available on the subject till then in Pakistan and India were referred to and all the relevant issues were exhaustively discussed. Criminal Appeal No. 95 of 2019, etc. 9 As all the ensuing discussion in the judicial and legal circles that followed that decision generally revolved around the judgment rendered in that case, therefore, some parts of that judgment are being reproduced here in extenso: “4. Terror and terrorism are concepts quite distinct from each other and the quintessence of the two notions is not difficult to distil. Terror as a manifestation of fright, dread, fear or insecurity is a consequential effect created by an act that may not necessarily be motivated to create such an effect whereas terrorism is an activity designed to create such an effect of terror. The critical difference between the two is the design and purpose understood in the criminal jurisprudence as mens rea. In the case of terror the act, or the actus reus, is not motivated to create fear and insecurity in the society at large but the same is actuated with a desire to commit a private crime against targeted individuals, etc. and the fear and insecurity created by the act in the society at large is only an unintended consequence or a fall out thereof whereas in the case of terrorism the main purpose is creation of fear and insecurity in the society at large and the actual victims are, by and large, not the real targets. Every crime, no matter what its magnitude or extent, creates some sort of fear and insecurity in some section of the society but every felony or misdemeanor cannot be branded or termed as terrorism. As against that an act of terrorism designed to create fear and insecurity in the society at large may or may not succeed in achieving the desired effect but nonetheless it can be accepted as nothing but terrorism because of the object or purpose behind such act. Thus, the real test to determine whether a particular act is terrorism or not is the motivation, object, design or purpose behind the act and not the consequential effect created by such act. In this context terrorism has to be understood as a species different and apart from terror, horror, shock, fear, insecurity, panic or disgust created by an ordinary crime. The history of recent terrorism in the world and an insight into how the world has understood and tried to define the same may be of significant help and of critical importance in appreciating the true meanings and import of the term ‘terrorism’. 5. The history of terrorism as it is known today has essentially a political tone and background. ------- 6. The question of a definition of terrorism has haunted the debate among States for decades. ------- 7. The discussion made above shows, and shows quite clearly, that out of the various facets of the world view about terrorism one factor is constant and that is that in order to qualify as terrorism an act must be designed to achieve a political and a larger objective and the same is not primarily directed against the actual victims themselves who are treated merely as ‘collateral damage’. It is also quite evident that the extent of the actual damage caused or injuries inflicted by the act is not the determinative factor in this regard. 8. Like its counterparts in rest of the world Pakistan has also been groping for the last many decades to find a suitable and appropriate definition of terrorism. Eversince the introduction of anti-terrorism laws in our country our legislature has constantly been in search of an apt definition of terrorism and in the process different laws have been enacted from time to time and different Criminal Appeal No. 95 of 2019, etc. 10 definitions of terrorism have been introduced at different occasions. In such definitions emphasis has been placed upon different aspects at different times. Although Suppression of Terrorist Activities (Special Courts) Act, 1974, Special Courts for Speedy Trials Ordinance, 1987, Terrorist Affected Areas (Special Courts) Ordinance, 1990, Special Courts for Speedy Trials Ordinance, 1991, Special Courts for Speedy Trials Act, 1992 and many other laws were also enacted in this regard from time to time yet for the purposes of the present judgment we intend to focus mainly on the two major enactments in this field, i.e. the Suppression of Terrorist Activities (Special Courts) Act, 1975 and the Anti-Terrorism Act, 1997. 9. The first major piece of legislation introduced in Pakistan specifically in the context of terrorism was the Suppression of Terrorist Activities (Special Courts) Act, 1975 ------- It is of critical importance to point out here that although the word terrorism had been used in the Preamble of the said Act yet the same had not been defined in the Act at all and the Schedule of that Act created an impression that the word terrorism was to be understood in the context of any offence of serious and grave nature. 10. The Anti-Terrorism Act, 1997 was a major step forward in Pakistan’s quest for dealing with the menace of terrorism and its Preamble provided as follows: “Whereas it is expedient to provide for the prevention of terrorism, sectarian violence and for speedy trial of heinous offences and for matters connected therewith and incidental thereto.” Section 12 of the Act conferred jurisdiction to try the scheduled offences exclusively upon the Special Courts constituted under the said Act. Section 6 of that Act defined a ‘terrorist act’ in the following terms: “Whoever, to strike terror in the people, or any section of the people, or to alienate any section of the people or to adversely affect harmony among different sections of the people, does any act or thing by using bombs, dynamite or other explosive or inflammable substances, or fire-arms, or other lethal weapons or poisons or noxious gases or chemicals or other substances of a hazardous nature in such a manner as to cause, or to be likely to cause the death of, or injury to, any person or persons, or damage to, or destruction of, property or disruption of any supplies of services essential to the life of the community or displays fire-arms, or threatens with the use of force public servants in order to prevent them from discharging their lawful duties commits a terrorist act.” Section 7 of the Act specified various punishments for the terrorist acts mentioned in section 6, section 8 defined an offence regarding stirring up sectarian hatred and section 9 of the said Act provided for punishment for the offence under section 8. The Schedule of the said Act read as follows: “1. Any offence punishable under this Act. 2. Any offence punishable under any of the following sections of the Pakistan Penal Code (Act XLV of 1860), namely:- Criminal Appeal No. 95 of 2019, etc. 11 (a) section 302, -- (i) if committed with a cannon, grenade, bomb, rocket or a light or heavy automatic weapon; (ii) if the victim is a member of police, armed forces or civil armed forces or is a public servant; (iii) if there is more than one victim; or (iv) the victim was subjected to cruelty, brutality, torture or burning; and (b) offences under sections 295-A, 298-A, 364, 364-A, 365, 365-A, 392 to 402 of the Pakistan Penal Code (Act No. XLV of 1860). 3. An offence punishable under sub-section (4) of section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (Ordinance No. VII of 1979). 4. Any attempt or conspiracy to commit or any abetment of any of the aforesaid offences.” The core and essence or the pith and substance of a ‘terrorist act’ defined by this Act was striking terror in the people or any section of the people or alienating any section of the people or adversely affecting harmony among different sections of the people. The emphasis appeared to be on the gravity of the offence and its effect upon the general populace rather than on the actual motivation behind the act. 11. The above mentioned definition of a ‘terrorist act’ contained in section 6 was subsequently amended through the Anti-Terrorism (Second Amendment) Ordinance, 1999 (Ordinance No. XIII of 1999) and the new definition read as follows: “A person is said to commit a terrorist act if he – (a) in order to, or if the effect of his actions will be to, strike terror or create a sense of fear and insecurity in the people, or any section of the people, does any act or thing by using bombs, dynamite or other explosive or inflammable substances, or such fire-arms or other lethal weapons as may be notified, or poisons or noxious gases or chemicals, in such a manner as to cause, or be likely to cause, the death of, or injury to, any person or persons, or damage to, or destruction of, property on a large scale, or a widespread disruption of supplies of services essential to the life of the community, or threatens with the use of force public servants in order to prevent them from discharging their lawful duties; or (b) commits a scheduled offence, the effect of which will be, or be likely to be, to strike terror, or create a sense of fear and insecurity in the people, or any section of the people or to adversely affect harmony among different sections of the people; or (c) commits an act of gang rape, child molestation, or robbery coupled with rape as specified in the Schedule to this Act; or Criminal Appeal No. 95 of 2019, etc. 12 (d) commits an act of civil commotion as specified in section 7-A.” Through this amendment the focus on the effect of the action was extended to a potential or likely effect besides the actual effect of the action and the focal point still remained the effect of the action rather than the incentive or inspiration behind the same. 12. It is of vital importance to mention here that while providing in the amended section 6 that “in order to, or if the effect of his actions will be to, strike terror or create a sense of fear and insecurity in the people, or any section of the people, does any act or thing ---” the legislature never specified the motivation for that “act or thing” on the part of the perpetrator which propelled or prompted him to commit a terrorist act. Thus, the actus reus was itself considered to be determinative if the same was intended to create fear and insecurity, etc. in the public at large, had the effect of creating such fear and insecurity, etc. or had a potential for creating such fear and insecurity, etc. According to this definition what was of paramount consideration was the effect of the act, whether actual, intended or potential, and not the design or the purpose behind that act. It was in that context that the Hon’ble Supreme Court of Pakistan had interpreted the provisions of section 6 of this Act in many cases, to be discussed later on in this judgment, and had held that an act was to be considered a terrorist act if its effect, whether actual, intended or potential, was to create fear and insecurity, etc. in the society at large. 13. On August 15, 2001 the Anti-Terrorism Act, 1997 was drastically amended through the Anti-Terrorism (Amendment) Ordinance, 2001 (Ordinance No. XXXIX of 2001). Through the amending Ordinance the Schedule of the Act containing various offences to be tried under the said Act was done away with and the term ‘terrorist act’ with its definition contained in section 6 of the Act was substituted and replaced by the term ‘terrorism’ with the following definition thereof: “(1) In this Act “terrorism” means the use or threat of action where: (a) the action falls within the meaning of sub- section (2), and (b) the use or threat is designed to coerce and intimidate or overawe the Government or the public or a section of the public or community or sect or create a sense of fear or insecurity in society; or (c) the use or threat is made for the purpose of advancing a religious, sectarian or ethnic cause. (2) An “action” shall fall within the meaning of sub-section (1), if it: (a) involves the doing of anything that causes death; (b) involves grievous violence against a person or grievous bodily injury or harm to a person; (c) involves grievous damage to property; Criminal Appeal No. 95 of 2019, etc. 13 (d) involves the doing of anything that is likely to cause death or endangers a person’s life; (e) involves kidnapping for ransom, hostage- taking or hijacking; (f) incites hatred and contempt on religious, sectarian or ethnic basis to stir up violence or cause internal disturbance; (g) involves stoning, brick-batting or any other form of mischief to spread panic; (h) involves firing on religious congregations, mosques, imambargahs, churches, temples and all other places of worship, or random firing to spread panic, or involves any forcible takeover of mosques or other places of worship; (i) creates a serious risk to safety of the public or a section of the public, or is designed to frighten the general public and thereby prevent them from coming out and carrying on their lawful trade and daily business, and disrupts civic life; (j) involves the burning of vehicles or any other serious form of arson; (k) involves extortion of money (“bhatta”) or property; (l) is designed to seriously interfere with or seriously disrupt a communications system or public utility service; (m) involves serious coercion or intimidation of a public servant in order to force him to discharge or to refrain from discharging his lawful duties; or (n) involves serious violence against a member of the police force, armed forces, civil armed forces, or a public servant. (3) The use or threat of use of any action falling within sub-section (2), which involves the use of fire-arms, explosives or any other weapon, is terrorism, whether or not sub-section 1(c) is satisfied. (4) In this section “action” includes any act done for the benefit of a proscribed organization. (5) In this Act, terrorism includes any act done for the benefit of a proscribed organization. (6) A person who commits an offence under this section or any other provision of this Act, shall be guilty of an act of terrorism. (7) In this Act, a “terrorist” means: Criminal Appeal No. 95 of 2019, etc. 14 (a) a person who has committed an offence of terrorism under this Act, and is or has been concerned in the commission, preparation or instigation of acts of terrorism; (b) a person who is or has been, whether before or after the coming into force of this Act, concerned in the commission, preparation or instigation of acts of terrorism, shall also be included in the meaning given in clause (a) above.” 14. The resume of our legislative developments in the field of terrorism shows that with different laws and definitions of terrorist act or terrorism the emphasis has been shifting from one criterion to another including the gravity of the act, lethal nature of the weapon used, plurality of culprits, number of victims, impact created by the act and effect of fear and insecurity brought about or likely to be created in the society by the action. The last definition of a ‘terrorist act’ contained in section 6 of the Anti-Terrorism Act, 1997 squarely focused on the effect of fear and insecurity intended to be created by the act or actually created by the act or the act having the potential of creating such an effect of fear and insecurity in the society. It, however, appears that subsequently the legislature did not feel convinced of the aptness or correctness of that definition and resultantly the erstwhile definition of a ‘terrorist act’ contained in section 6 of the Anti-Terrorism Act, 1997 was repealed and a totally fresh and new definition of ‘terrorism’ was introduced through an amended section 6 of the Anti-Terrorism Act, 1997 and this was accomplished through the Anti-Terrorism (Amendment) Ordinance, 2001 (Ordinance No. XXXIX of 2001) promulgated on 15.08.2001. The legislature had probably realized by then that an effect of an act may not always be a correct indicator of the nature of such an act as every crime, especially of violence against person or property, does create some sense of fear and insecurity in some section of the society and a definition of terrorism based upon the magnitude or potential of an effect created or intended to be created or having a potential of creating would necessarily require a premature, speculative and imaginary quantification of the effect so as to determine the nature of the act in order to decide about the jurisdiction of a criminal court to try such an act. That surely was an unsure test and the result of such a premature, speculative and presumptive test could vary from court to court and from Judge to Judge reminding a legal scholar of the Star Chamber and the early days of a Court of Equity in England where equity was said to vary with the size of the Chancellor’s foot. The new definition of ‘terrorism’ introduced through the amended section 6 of the Anti-Terrorism Act, 1997 as it stands today appears to be the most comprehensive and the clearest definition of ‘terrorism’ introduced in our legal system thus far. It appears that in its quest for an apt and appropriate definition of terrorism and after stumbling through various approaches in that regard the legislature in our country has finally hit upon a definition of terrorism which is not only closest to its real meaning but the same is also in accord with the international perceptions about the same. The earlier emphasis on the speculative effect of the act has now given way to a clearly defined mens rea and actus reus. The amended section 6(1)(b) now specifies the ‘design’ and section 6(1)(c) earmarks the ‘purpose’ which should be the motivation for the act and the actus reus has been clearly mentioned in section 6(2)(a) to (n) and now it is only when the actus reus specified in section 6(2) is accompanied by the requisite mens rea provided for in section 6(1)(b) or (c) that an action can be termed as ‘terrorism’. Thus, it Criminal Appeal No. 95 of 2019, etc. 15 is no longer the fear or insecurity actually created or intended to be created or likely to be created which would determine whether the action qualifies to be termed as terrorism or not but it is now the intent and motivation behind the action which would be determinative of the issue irrespective of the fact whether any fear and insecurity was actually created or not. After this amendment in section 6 an action can now be termed as terrorism if the use or threat of that action “is designed to coerce and intimidate or overawe the Government or the public or a section of the public or community or sect” or if such action is designed to “create a sense of fear or insecurity in society” or the use or threat is made for the purpose of advancing a religious, sectarian or ethnic cause. Now creating fear or insecurity in the society is not by itself terrorism unless the motive itself is to create fear or insecurity in the society and not when fear or insecurity is just a byproduct, a fall out or an unintended consequence of a private crime. In the last definition the focus was on the action and its result whereas in the present definition the emphasis appears to be on the motivation and objective and not on the result. Through this amendment the legislature seems to have finally appreciated that mere shock, horror, dread or disgust created or likely to be created in the society does not transform a private crime into terrorism but terrorism as an ‘ism’ is a totally different concept which denotes commission of a crime with the object and purpose of destabilizing the society or government with a view to achieve objectives which are political in the extended sense of the word. This approach appears to be in harmony with the emerging international perception about terrorism according to which, as referred to above, “the aim of the activity is always political, i.e. the goal is to attain political objectives like changing the regime, changing the people in power, changing social or economic policies, etc. In the absence of a political aim, the activity in quest will not be defined as terrorism. A violent activity against civilians that has no political aim is, at most, an act of criminal delinquency, a felony, or simply an act of insanity unrelated to terrorism. Some scholars tend to add ideological or religious aims to the list of political aims.” This metamorphosis in the anti- terrorism law in our country has brought about a sea change in the whole concept as we have understood it in the past and it is, therefore, of paramount importance for all concerned to understand this conceptual modification and transformation in its true perspective. In view of this conceptual transformation even the interpretations of a ‘terrorist act’ or ‘terrorism’ rendered by our courts in the past on the basis of the earlier law may, it is observed with great respect, require revisiting and reinterpretation so as to be in line with the newly introduced definition and concept of terrorism. 15. Adverting to the case-law on the subject we may straightaway observe with profound respect that, barring a few exceptions, the judgments rendered on the subject thus far by the Hon’ble Supreme Court of Pakistan appear to be heavily influenced by the erstwhile definition of a ‘terrorist act’ contained in the original Act and even the new definition of ‘terrorism’ contained in the amended Act has, by and large, been looked at with the same mindset. For instance in the case of ------- 16. One cannot help noticing that all the cases referred to in the last paragraph pertained to offences committed for private purposes with no motivation to destabilize the society at large but they were all adjudged to be cases of terrorist acts or terrorism on the basis of a presumptive and speculative quantification of the effect that the relevant actions could have created in the society. In all such cases, it is observed with great deference, the change brought about by the new definition of ‘terrorism’ with its Criminal Appeal No. 95 of 2019, etc. 16 resultant shifting of focus from the effect of the action to the design or purpose behind the action had not been noticed and all those cases had been decided on the basis and on the yardstick of the principles provided for by the earlier definition of a ‘terrorist act’. In the above mentioned cases the gravity of the offence with its resultant actual, intended or potential effect on the people at large was considered as the measure for determining whether the act constituted terrorism or not. We can appreciate that the mindset inherited by us in the background of the Summary Military Courts, Speedy Trial Courts and Special Courts for Suppression of Terrorist Activities, which were different courts constituted at different stages in the past for separate and special handling of offences of grave nature, may take some time to be dispelled and it may take us a while to appreciate and realize that an act of ‘terrorism’ is not just a grave offence but it is a class and species apart and this class or species has to be understood in its true and correct perception and perspective otherwise every serious offence may be found by one Judge or the other to involve terrorism depending upon a subjective assessment of the potential of the act to create some sense of fear or insecurity in some section of the society. Such an approach, it may be observed with great veneration, may not be wholesome as it may ultimately result in every case of a serious offence landing in a Special Court and thereby rendering the ordinary courts substantially redundant. It ought not to be lost sight of that the legislature’s repeal of the Suppression of Terrorist Activities (Special Courts) Act, 1975, doing away with the Schedule of the Anti-Terrorism Act, 1997 and also its retraction from the ‘effect’ through the fresh definition of ‘terrorism’ cannot be without any significance or purpose. That drastic change of the definition manifestly indicated a change of meanings and of focus and such a change has to be given its proper effect. After all if the newly introduced term ‘terrorism’ is still to be interpreted in the same manner as the erstwhile term ‘terrorist act’ then there was hardly any occasion or need for the legislature to amend the definition and to bring about any change in the existing law in that regard. The legacy and interpretations pertaining to the Suppression of Terrorist Activities (Special Courts) Act, 1975 and of the original provisions of the Anti-Terrorism Act, 1997 have now to be shrugged off so as to correctly understand the new definition of ‘terrorism’ introduced through the latest amendment in the latter Act. The Hon’ble Supreme Court of Pakistan had itself declared in the above mentioned case of Mumtaz Ali Khan Rajban and another v. Federation of Pakistan and others (PLD 2001 SC 169) that the subject matters of the Suppression of Terrorist Activities (Special Courts) Act, 1975 and the Anti-Terrorism Act, 1997 were “different” and their respective applicability was “governed by different criteria”. 17. We understand, and we observe so with all the respect at our command, that in the above mentioned cases the Hon’ble Supreme Court of Pakistan had, wittingly or otherwise, detracted or moved away from the principle of nexus so painstakingly carved out by itself in the case of Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 SC 1445). ------- 18. It may be advantageous to mention here that the definition of ‘terrorism’ introduced in Pakistan in 2001 through the latest amendment in the Anti-Terrorism Act, 1997 proceeds on lines somewhat similar, if not identical, to the corresponding definitions contained in the relevant laws of Northern Ireland, United Kingdom, United States of America, Australia and India. Section 58 of the Northern Ireland (Emergency Provisions) Act, 1996 defined terrorism in the following words: ------- Section 1 of the United Kingdom’s Terrorism Act, 2000 reads as follows: ------- Criminal Appeal No. 95 of 2019, etc. 17 Section 802 of the Uniting and Strengthening America Act by Providing Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001 of the United States of America defines “domestic terrorism” as follows: ------- In Australia Section 5 of the Terrorism (Emergency Powers) Act, 2003 defines a ‘terrorist act’ in the following words: ------- In India the Terrorist and Disruptive Activities (Prevention) Act, 1987 (Act No. 28 of 1987) defined a ‘terrorist act’ in sections 3(1) thereof as follows: -- ----- The Terrorist and Disruptive Activities (Prevention) Act, 1987 was subsequently repealed in India and was substituted by the Prevention of Terrorism Act, 2002 (Act No. 15 of 2002) and section 3 of the said Act provides as follows: ------- 19. The similarities, nay resemblances, in the definitions of a ‘terrorist act’ or ‘terrorism’ enacted in Northern Ireland, United Kingdom, United States of America, Australia, India and Pakistan are too striking to be merely coincidental and, therefore, in the lager interests of global harmony and communion their interpretations ought also not be different. ------- In the case of Niranjan Singh Karam Singh Punjabi, Advocate v. Jitendra Bhimraj Bijja and others (AIR 1990 SC 1962) ------- This, to us, appears to be an approach which is not only in complete harmony with the change of focus brought about by the new definition of ‘terrorism’ through the amended section 6 of the Anti-Terrorism Act, 1997 in Pakistan but is also in perfect accord with the global perceptions about the true nature of terrorism according to which the determinative factor is the design or purpose behind the act and not the presumptive effect created by the act upon those who were not even the targets of the private act. ------- the Hon’ble Supreme Court of India had reiterated in the case of Niranjan Singh Karam Singh Punjabi, Advocate v. Jitendra Bhimraj Bijja and others (AIR 1990 SC 1962) that: ------- In the subsequent case of Kartar Singh v. State of Punjab ((1994) 3 Supreme Court Cases 569) the Hon’ble Supreme Court of India reproduced the above mentioned passages from the judgments in the cases of Niranjan Singh Karam Singh Punjabi, Advocate v. Jitendra Bhimraj Bijja and others (AIR 1990 SC 1962) and Usmanbhai Dawoodbhai Memon v. State of Gujrat ((1988) 2 SCC 271) and commented upon them with approval and reiteration. The later case of Hitendra Vishnu Thakur and others v. State of Maharashtra and others (AIR 1994 SC 2623) can truly be described as a milestone in the context of identifying the true meanings of terrorism and the Hon’ble Supreme Court of India had observed in its judgment in that case as follows: ------- A similar approach was adopted by the Hon’ble Supreme Court of Pakistan in 1998 in the above mentioned case of Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 SC 1445) by carving out the principle of nexus with the objects of the Anti-Terrorism Act, 1997. However, it appears that in the last few years the said principle has either been side tracked or placed on the back burner in our country and the law is not only being stretched in a different direction but the same is also often being misapplied and misused by the police and the subordinate courts. An appropriate and correct restatement of the relevant law for its proper application is, therefore, not only necessary but also a crying need so that the relevant law may be saved from being derailed from its real objectives. 20. By way of summing up we may observe that, keeping in view the latest definition of ‘terrorism’ contained in section 6 of the Anti-Terrorism Act, 1997, mere gravity or brutal nature of an offence does not provide a valid yardstick for branding the same as terrorism. In order to qualify as terrorism the motivation behind the offence has to be political in the extended sense of the word and, as provided in the United Kingdom law, “the use or threat is made for the purpose of advancing a political, religious Criminal Appeal No. 95 of 2019, etc. 18 or ideological cause” and the act has to be designed to destabilize the society at large. The history of crimes in the human society is replete with macabre, gruesome and horrifying offences shocking the society at large yet such crimes were never treated or accepted as terrorism because the motivation was personal and private. As against that even an unsuccessful attempt at sabotage of public supplies or services has readily been accepted as terrorism because the purpose behind the act is to destabilize the society at large. Even a petty theft in a house in a street is likely to create a sense of insecurity in the people living in that street, a rape of a young girl is bound to send jitters in every family having young girls living in the relevant locality, a murder in the vicinity surely creates a grave sense of fear in the inhabitants of the area, a bloodbath in furtherance of an on-going feud shocks the society as a whole, a massive fraud in a bank may send shockwaves throughout the banking and financial sectors and an offence committed against a member of any profession may render the other members of that profession feeling vulnerable and insecure. But all such offences are ordinary crimes distinguishable from terrorism because for the former the motivation is personal and private whereas for the latter the purpose has to be to destabilize the society at large. In this backdrop a premature, speculative, presumptive and imaginary quantification of the effect of an action so as to determine the nature of the act as terrorism or not appears to be an unsure and subjective test and it would be safer and consistent to revert to the principle of nexus carved out by the Hon’ble Supreme Court of Pakistan which is not only now a statutory requirement but the same is also consistent with the first major enunciation of the relevant law by our Supreme Court and that too by a Bench larger than any other Bench deciding any of the other cases mentioned above. 21. ------- 22. Judged on the basis of the requirements of the amended provisions of section 6 of the Anti-Terrorism Act, 1997 and examined on the touchstone of the principle of nexus propounded by the largest Bench of the Hon’ble Supreme Court of Pakistan in the case of Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 SC 1445), reiterated by an equally large Bench of it in the case of Jamat-i-Islami Pakistan through Syed Munawar Hassan, Secretary-General v. Federation of Pakistan through Secretary, Law, Justice and Parliamentary Affairs (PLD 2000 SC 111) and applied by it in the case of Ch. Bashir Ahmad v. Naveed Iqbal and 7 others (PLD 2001 SC 521) the case in hand, despite the brutality displayed by the culprits and the consequent horror, shock, fear and insecurity likely to be created by the savagery perpetrated by the offenders, has not appeared to us to be a case of terrorism as the motive for the alleged offences was nothing but personal enmity and private vendetta and the motivation on the part of the accused party was not to overawe or intimidate the government, etc. or to destabilize the society at large or to advance any sectarian cause, etc.. The intention of the accused party did not depict or manifest any ‘design’ or ‘purpose’ as contemplated by the provisions of section 6(1)(b) or (c) of the Anti- Terrorism Act, 1997 and, thus, the actus reus attributed to it was not accompanied by the necessary mens rea so as to brand its actions as terrorism triable exclusively by a Special Court constituted under the Anti-Terrorism Act, 1997. The stand taken before us by the learned Assistant Advocate-General appearing for the State also proceeds on the same lines and it is for these very reasons that the State has chosen not to oppose this petition. This writ petition is, therefore, allowed, the impugned order passed by the learned Judge, Anti-Terrorism Court-II, Gujranwala on 04.10.2003 is declared to be without lawful Criminal Appeal No. 95 of 2019, etc. 19 authority and of no legal effect and the same is set aside, the application filed by the petitioner before the said court under section 23 of the Anti-Terrorism Act, 1997 is accepted and the petitioner’s case is declared to be triable by a court of ordinary jurisdiction. The learned Judge, Anti-Terrorism Court-II, Gujranwala is directed to transmit the record of the petitioner’s case to the learned District & Sessions Judge, Gujranwala forthwith for further proceedings in the matter. There shall be no order as to costs.” The said judgment passed by the Lahore High Court, Lahore (authored by one of us, Asif Saeed Khan Khosa, CJ, in his capacity as a Judge of that Court at that time) was initially set aside by this Court in the case of Mirza Shaukat Baig and others v Shahid Jamil and others (PLD 2005 SC 530) but subsequently in the cases of Bashir Ahmed v M. Siddique (PLD 2009 SC 11), Ahmad Jan v Nasrullah and others (2012 SCMR 59) and Farooq Ahmed v State and another (PLJ 2017 SC 408) it was not only referred to with approval and relied upon by this Court but it was also held to be laying down correct law regarding the scope and meanings of ‘terrorism’ as defined in section 6 of the Anti-Terrorism Act, 1997. 9. Section 6 of the Anti-Terrorism Act, 1997 has been amended from time to time and in its present shape it provides as follows: 6. Terrorism. – (1) In this Act, “terrorism” means the use or threat of action where: (a) the action falls within the meaning of subsection (2), and (b) the use or threat is designed to coerce and intimidate or overawe the Government or the public or a section of the public or community or sect or create a sense of fear or insecurity in society; or (c) the use or threat is made for the purpose of advancing a religious, sectarian or ethnic cause or intimidating and terrorizing the public, social sectors, media persons, business community or attacking the civilians, including damaging property by ransacking, looting, arson, or by any other means, government officials, installations, security forces or law enforcement agencies: Provided that nothing herein contained shall apply to a democratic and religious rally or a peaceful demonstration in accordance with law. (2) An “action” shall fall within the meaning of subsection (1), if it: (a) involves the doing of anything that causes death; Criminal Appeal No. 95 of 2019, etc. 20 (b) involves grievous violence against a person or grievous bodily injury or harm to a person; (c) involves grievous damage to property including government premises, official installations, schools, hospitals, offices or any other public place or private property including damaging property by ransacking, looting or arson or by any other means; (d) involves the doing of anything that is likely to cause death or endangers a person's life; (e) involves kidnapping for ransom, hostage-taking or hijacking; (ee) involves use of explosive by any device including bomb blast or having any explosive substance without any lawful justification or having been unlawfully concerned with such explosive; (f) incites hatred and contempt on religious, sectarian, or ethnic basis to stir up violence or cause internal disturbance; (g) involves taking the law in own hand, award of any punishment by an organization, individual or group whatsoever, not recognized by the law, with a view to coerce, intimidate or terrorize public, individuals, groups, communities, government officials and institutions, including law enforcement agencies beyond the purview of the law of the land; (h) involves firing on religious congregations, mosques, imambargahs, churches, temples and all other places of worship, or random firing to spread panic, or involves any forcible takeover of mosques or other places of worship; (i) creates a serious risk to safety of the public or a section of the public, or is designed to frighten the general public and thereby prevent them from coming out and carrying on their lawful trade and daily business, and disrupts civic life; (j) involves the burning of vehicles or any other serious form of arson; (k) involves extortion of money (“bhatta”) or property; (l) is designed to seriously interfere with or seriously disrupt a communication system or public utility service; (m) involves serious coercion or intimidation of a public servant in order to force him to discharge or to refrain from discharging his lawful duties; (n) involves serious violence against member of the police force, armed forces, civil armed forces, or a public servant; (o) involves in acts as part of armed resistance by groups or individuals against law enforcements agencies; or (p) involves in dissemination, preaching ideas, teachings and beliefs as per own interpretation on FM stations or through any other means of communication without Criminal Appeal No. 95 of 2019, etc. 21 explicit approval of the government or its concerned departments. (3) The use or threat of any action falling within sub-section (2) which involves the use of firearms, explosive or any other weapon is terrorism, whether or not sub-section (1) (c) is satisfied. (4) In this section ‘action” includes an act or a series of acts. (5) In this Act, terrorism includes any act done for the benefit of a proscribed organisation. (6) A person who commits an offence under this section or any other provision of this Act, shall be guilty of an act of terrorism. (7) In this Act, a “terrorist” means:- (a) an individual who has committed an offence of terrorism under this Act, and is or has been concerned in the commission, preparation, facilitation, funding or instigation of acts of terrorism; (b) an individual who is or has been, whether before or after the coming into force of this Act, concerned in the commission, preparation, facilitation, funding or instigation of acts of terrorism, shall be included in the meaning given in clause (a) above. On the basis of the said definition of ‘terrorism’ and the precedent cases available on the subject all the learned counsel for all the parties as well as all the learned law officers, except the learned Attorney-General for Pakistan, have argued before us in unison that an act of terrorism is not to be confused with an ordinary crime committed in the background of a personal enmity or private vendetta and gravity of an offence, shocking nature of the violence committed or mere fear and insecurity generated or likely to be generated by commission of a brutal, gruesome or heinous act are not to be treated as the yardsticks for determining whether an action is to be labeled as terrorism or not and only that action is to be accepted as terrorism which action falls within the purview of subsection (2) of section 6 and such action is committed with a ‘design’ or ‘purpose’ specified in clauses (b) or (c) of subsection (1) of section 6 of the Anti-Terrorism Act, 1997. The learned Attorney- General for Pakistan has, however, submitted his written submissions and through the same he has maintained that “all “actions” that fall within the contemplation of sub-section (3) of section 6 would have to be registered as an act of terror, within the Criminal Appeal No. 95 of 2019, etc. 22 meaning of terrorism. However punishments contemplated by Sec 7 would be awarded, subject to subsequent evidence being led, that, the ‘actions’ where weapons are used and has caused fear/terror etc., it would be termed as ‘terrorism’, as defined in section 6(1), (2) & (3), else, the person could be acquitted to the extent of the charge of terrorism. In other cases not involving the contemplation of sub-section (3) of section 6, the FIR cannot be lodged under the provisions of ATA, however, where during investigation and available evidence, any of the provision of sub- section (2) of section 6 comes to surface, Anti-terrorism Act can be included.” The main thrust of the stand taken by the learned Attorney-General is that in terms of subsection (3) of section 6 of the Anti-Terrorism Act, 1997 use or threat of use of firearms, explosive or any other weapon for all the actions mentioned in subsection (2) of section 6 of that Act ipso facto constitutes terrorism and an FIR can be registered on that basis in respect of the offence of terrorism but conviction for committing the offence of terrorism can be recorded at the end of the trial only if the alleged action is proved through evidence to have been taken with the ‘design’ or ‘purpose’ specified in clauses (b) and (c) of subsection (1) of section 6 of the Anti-Terrorism Act, 1997. According to the learned Attorney-General subsections (1), (2) and (3) of section 6 of the said Act are to be read in conjunction and for determining whether an action constitutes terrorism or not it is the action with its actual or likely consequences which is relevant and not the intention behind the action which remains hidden in the mind of the perpetrator of the action. However, in the same written submissions the learned Attorney-General has also observed that “terrorism as a concept is not ‘ordinary’ in even the way that intention, guilt and dishonesty are. Nor is it a term belonging to some science; its natural home is in polemical, ideological, and propagandist contexts or, less alarmingly, highly political ones.” The learned Additional Prosecutor-General, Punjab has added that the provisions of subsection (3) of section 6 of the Anti-Terrorism Act, 1997 are quite problematic as they do not piece well with the remaining provisions of the said section as far as the matter of Criminal Appeal No. 95 of 2019, etc. 23 defining terrorism is concerned. According to him if the provisions of subsection (3) of section 6 of the Anti-Terrorism Act, 1997, as they are worded, are to be given effect then almost every offence in commission of which firearms, explosive or any other weapon is used or threatened to be used would constitute terrorism and such an approach would obliterate any distinction between the peculiar offence of terrorism and most of the run of the mill offences committed in the society in routine. 10. We have heard the learned counsel for the parties at some length and have attended to the relevant statutory provisions and all the precedent cases available on the subject so far. As the opinion of this Court has remained divided on the issue as to what constitutes terrorism in the context of section 6 of the Anti- Terrorism Act, 1997, therefore, it is imperative to examine and scrutinize all the precedent cases available on either side of the divide with care. In the following cases this Court has held that the actions specified in subsection (2) of section 6 of the Anti- Terrorism Act, 1997 are to constitute the offence of terrorism only if such actions are accompanied by the ‘design’ or ‘purpose’ specified in clauses (b) or (c) of subsection (1) of section 6 of the said Act and it has consistently been maintained in these cases that an act of terrorism is not to be confused with the usual and run of the mill crimes committed in the background of any personal enmity or private vendetta and also that gravity of an offence, shocking nature of the violence committed or mere fear and insecurity generated or likely to be generated by commission of a brutal, gruesome or heinous offence are not to be treated as the determining factors for deciding whether an action is to be labeled and accepted as terrorism or not. Mehram Ali and others v Federation of Pakistan and others (PLD 1998 SC 1445) “However, it may be observed that the offences mentioned in the Schedule should have nexus with the object of the Act and the offences covered by sections 6, 7 and 8 thereof. It may be stated that section 6 defines terrorist acts, section 7 provides punishment for such acts, and section 8 prohibits acts intended Criminal Appeal No. 95 of 2019, etc. 24 or likely to stir up sectarian hatred mentioned in clauses (a) to (d) thereof. If an offence included in the Schedule has no nexus with the above sections, in that event notification including such an offence to that extent will be ultra vires. ------- It will suffice to observe that if a Government servant or any other employee of the Government functionaries is murdered because he belongs to the above service and that there was no enmity or plausible reason for commission of the above offence, such a killing is an act of terrorism within the ambit of the Act and can lawfully be included in the Schedule, but if the murder is committed solely on account of personal enmity, such murder will have no nexus with the above provisions of the Act and will not be triable under the Act.” Jamat-i-Islami Pakistan through Syed Munawar Hassan, Secretary-General v Federation of Pakistan through Secretary, Law, Justice and Parliamentary Affairs (PLD 2000 SC 111) “------- to make an act punishable under the Act, it must be shown that the act bears nexus to sections 6, 7 and 8 of the Act.” Ch. Bashir Ahmad v Naveed Iqbal and 7 others (PLD 2001 SC 521) “A person would commit a terrorist act if in order to, or if the effect of his actions will be “to strike terror or create a sense of fear and insecurity in the people, or any section of the people ---”. In the instant case as the facts of the case reveal, the alleged sprinkling of the spirit on the person of the victim was within the boundary walls of the appellant’s house. It was not in public and, therefore, the element of striking terror or creating sense of fear and insecurity in the people, or any section of the people is not made discernible in the F.I.R. and for that matter on the record of the case as a whole. Similarly the perusal of the Schedule to the Act also indicates that the element of striking terror or creation of sense of fear and insecurity in the people or any section of the people by doing an act or thing by using bombs, dynamite or other explosive or inflammable substances etc. is a sine qua non for the attraction of the provisions of section 6 of and the Schedule to the Act -------. In the instant case no doubt the offence committed was certainly most heinous in nature but it does not mean that it does qualify to be a terrorist act within the contemplation of section 6 or the Schedule to the Act.” Muhammad Mushtaq v Muhammad Ashiq and others (PLD 2002 SC 841) “It would thus appear that ordinary crimes are not to be dealt with under the Act. A physical harm to the victim is not the sole criterion to determine the question of terrorism.” Fazal Dad v Col. (Rtd.) Ghulam Muhammad Malik and others (PLD 2007 SC 571) “In case the aforesaid provisions and contents of F.I.R. are put in a juxta position then section 6 of the said ordinance is not attracted. It is a settled law that preamble is always key to interpret the statute. The very object to promulgate the Anti- Terrorism Act, 1997 was to control the acts of terrorism, sectarian violence and other heinous offences as defined in section 6 of the Act and their speedy trial to bring the offence within the ambit of the act, it is essential to examine that the said offence should Criminal Appeal No. 95 of 2019, etc. 25 have nexus with the object of the act and offences covered by its relevant provisions such as section 6. It is a settled law that provisions of law must be read as a whole in order to determine its true nature, import and scope -------. It is abundantly clear that in case the provisions of act be read as a whole with the offence which creates a sense of fear or insecurity in society, causes of death or endangers a person's life commits an act of vehicle snatching or lifting, damage to or disturbance of, State or private property failing to create panic charging bhatta or criminal trespasser (Illegal qabza). As mentioned above, the ingredients of aforementioned offences have no nexus while reading the aforesaid provisions along with the contents of the impugned F.I.R. It is pertinent to mention here that nothing was on record to show that occurrence created terror, panic or sense of insecurity among people by securing possession of the land in question by the respondent. The word illegal Qabza must be read with the previous words used by the legislature in clause (d) of section 6 of the Anti-Terrorism Act, 1997 on well-known principle that statutory provisions ought not to be construed in isolation and courts always to lean towards reasonable interpretation of statute. The learned High Court was justified to examine the scope of terrorism at the time of deciding the constitutional petition with regard to the transfer of case from special court to ordinarily court on the well known maxim that legislative intent as a guide to interpretation of statute should be gathered primarily from words used in statute. The case in hand did not qualify to be a terrorist act within the contemplation of section 6 or schedule of Anti-Terrorism Act and the learned High Court was justified to transfer the case to the ordinary court. It is settled law that promulgation of special law by itself is not sufficient to supersede provisions of law contained in Cr.P.C. In case, the offence has no nexus with the parameters of special law, then general law will apply. The judgment of the learned High Court is in consonance with the law laid down by this court in various pronouncements. See Mehram Ali's case PLD 1998 SC 1445 and Jamat-e-Islami Pakistan's case PLD 2000 SC 111.” Mohabbat Ali and another v State and another (2007 SCMR 142) “In order to determine as to whether an offence would fall within the ambit of section 6 of the Act, it would be essential to have a glance over the allegations made in the F.I.R., record of the case and surrounding circumstances. It is also necessary to examine that the ingredients of alleged offence has any nexus with the object of the case as contemplated under sections 6, 7 and 8 thereof. Whether a particular act is an act of terrorism or not, the motivation, object, design or purpose behind the said Act is to be seen. It is also to be seen as to whether the said Act has created a sense of fear and insecurity in the public or any section of the public or community or in any sect. Examining the case in hand on the above touchstone, it is manifest on the face of it that the alleged offence took place because of previous enmity and private vendetta. The incident admittedly took place inside the fields of sugarcane and Banana cultivated in jungle about 14/15 miles away from the main road. Motive as defined in the F.I.R. is also to be given a specific attention which indicates that there was a personal enmity between the parties over the land and murder case of Haries of complainant.” “From the entire resume, it is manifest on record that intention of the petitioner was not at all to create sense of insecurity or in destabilize the public-at-large or to advance any sectarian cause. Thus, we are of the view that the design or purpose of the offence Criminal Appeal No. 95 of 2019, etc. 26 as contemplated by the provisions of section 6 of the Act is not attracted. Reference can be made to the case of this Court reported as Bashir Ahmad v. Naveed Iqbal PLD 2001 SC 521 whereby sprinkling of spirit on the person of victim was made within the boundary walls of the house of appellant which was not a public place and accordingly the element of a striking terror or creating sense of fear and insecurity in the people or any section of the people was found missing, therefore, the order of transferring the case to the Court of learned Sessions Judge passed by the High Court was upheld.” Tariq Mahmood v State (2008 SCMR 1631) “In our opinion, the case of the respondent accused, who have clean past, rests on a lower pedestal than that on terrorists and sectarian criminals who killed innocent persons either to weaken the State or to cause damage to the parties of the rival sect. The terrorist or the sectarian killers do not have any personal grudge or motive against the innocent victims. The instant case is clearly distinguishable as admittedly a feud existed between the parties over a piece of land prior to the occurrence.” Muhammad Yaqoob and others v The State and others (2009 SCMR 527) “Though learned counsel for the appellants has not specifically challenged convictions of the appellants under section 7 of the Anti-Terrorism Act, 1997 and occurrence in the case allegedly took place in Samoote Bazaar, opposite U.B.L. Branch, wherein three persons were done to death and another sustained grievous injuries yet, in the absence of any stipulation in the F.I.R. to the effect that the incident had struck terror or panic in the public and in the absence of any evidence to the effect that the incident had created sense of fear or insecurity in the public or any section of public or community or any sect, it could not have been contended that section 7 of the Anti-Terrorism Act, 1997 was attracted in the instant case. It would be pertinent to mention here that in order to bring a particular act within the ambit of section 7, it is to be seen as to whether the said act had created sense of fear or insecurity in public or in any section of public or community or any sect, or the occurrence was simply the result of previous enmity or personal vendetta. Since in the instant case it has been established that motive behind the incident was previously strained relations between the parties and an iota of evidence has not been brought on record to show that object was not to kill the deceased but also to strike terror or create sense of fear or insecurity in the general public or community or any sect thereof, therefore, in our view section 7 of the Anti-Terrorism Act was not attracted. In the case of Tariq Mahmood v. The State 2008 SCMR 1631, the occurrence had allegedly taken place in a Bazaar which was heavily populated and it was claimed that due to firing there was stampede in the traversers yet, since it was found that there was no evidence that the act of respondents/accused struck terror amongst the masses and the place of occurrence was not a busy populated area rather it took place on a service road, therefore, the provisions of Anti- Terrorism Act were not attracted. In the case of Muhammad Idrees and others v. The State 2008 SCMR 1544, occurrence took place on the bank of canal. It was not established on record that the act done by the accused persons had created sense of fear or insecurity in public, therefore, it was held that section 7 of the Criminal Appeal No. 95 of 2019, etc. 27 Anti-Terrorism Act was not attracted. In the case of Mohabbat Ali v. the State 2007 SCMR 142, the alleged incident took place because of previous enmity and private vendetta inside the fields of sugarcane and banana, about 14/15 miles away from main road, it was held that intention of the accused was not at all to create sense of fear or insecurity or to destabilize public at large or to advance any sectarian cause and design or purpose of offence as contemplated by provisions of section 6 of Anti- Terrorism Act, 1997 was not attracted. In the case of Fazal Dad v. Col. (Retd.) Ghulam Muhammad Malik PLD 2007 SC 571, since nothing was brought on record to show that the occurrence created terror, panic or sense of insecurity among people by securing possession land in question by the accused persons, therefore, the case did not qualify to be a terrorist act within the contemplation of section 6 of the Anti-Terrorism Act or its schedule. Convictions and sentences recorded against the appellants under section 7 of the Anti-Terrorism Act, are, therefore, set aside.” Bashir Ahmed v M. Siddique (PLD 2009 SC 11) “In order to determine as to whether an offence would fall within the ambit of section 6 of the Anti- Terrorism Act, 1997, it would be essential to have a glance over the allegations made in the F.I.R, record of the case and surrounding circumstances. It is also necessary to examine that the ingredients of alleged offence have any nexus with the object of the case as contemplated under sections 6, 7 and 8 thereof. Whether a particular act is an act of terrorism or not, the motivation, object, design or purpose behind the said act is to be seen. It is also to be seen as to whether the said act has created a sense of fear and insecurity in the public or any section of the public or community or in any sect. Examining the case in hand on the above touchstone, it is manifest on the face of it that the alleged offence took place because of previous enmity and private vendetta. A perusal of the record would reveal, that occurrence has taken place in front of the `haveli' of the respondents, situated in village ‘Fatoowala’. The motive for the occurrence is enmity inter-se the parties on account of some previous murders. In this view of the matter, we are of the opinion that since motive was enmity inter-se the parties, the application of section 7 of the Act, which primarily requires the spread of sense of insecurity and fear in the common mind is lacking in the present case. The occurrence neither reflects any act of terrorism nor it was a sectarian matter instead the murders in question were committed owing to previous enmity between the two groups. The present case, as observed above, does not fulfil the requirements laid down in the judgment titled as "Basharat Ali v. Special Judge Anti-terrorism Court-II, Gujranwala (PLD 2004 Lah.199), wherein it was held that fear or insecurity must not be a by-product, fall out or unintended consequence of a private crime. As such, creation of fear and insecurity in the society is not itself terrorism unless the same is coupled with the motive. The gist of the citation is that act of terrorism desires to be determined from the yardstick and scale of motive and object, instead of its result or after effect. From the facts of case, the definition of terrorism is not attracted as the said offence has neither created any threat to coerce or intimidate or overawe the Government or the public or a section of the public or community or sect or create a sense of fear or insecurity in society. Reference in this regard can be made on Ch. Bashir Ahmad v. Naveed Iqbal and 7 others (PLD 2001 SC 521), Muhammad Mushtaq v. Muhammad Ashiq and other (PLD 2002 SC 841) and Basharat Ali Criminal Appeal No. 95 of 2019, etc. 28 v. Special Judge, Anti-Terrorism Court-II, Gujranwala (PLD 2004 Lah. 199).” Ahmad Jan v Nasrullah and others (2012 SCMR 59) “In Bashir Ahmed v. State (PLD 2009 SC 11) by considering the law laid down in Basharat Ali v. Special Judge, Anti-Terrorism Court-II (PLD 2004 Lahore 199), a judgment authored by one of us (Asif Saeed Khan Khosa, J), Bashir Ahmed v. Naveed Iqbal and others (PLD 2001 SC 521) and Muhammad Mushtaq v. Muhammad Ashiq and others (PLD 2002 SC 841), the case in question was held not to be triable by a Special Court established under the Anti-Terrorism Act, 1997 because “The motive for the occurrence is enmity inter se the parties on account of some previous murders. In this view of the matter, we are of the opinion that since motive was enmity inter se the parties, the application of section 7 of the Act, which primarily requires the spread of sense of insecurity and fear in the common mind is lacking in the present case. The occurrence neither reflects any act of terrorism nor it was a sectarian matter instead the murders in question were committed owing to previous enmity between the two groups.”” Malik Muhammad Mumtaz Qadri v The State and others (PLD 2016 SC 17) “The next question to be considered is as to whether by committing the murder of Mr. Salman Taseer, the then Governor of the Province of the Punjab, the appellant had also committed the offence of 'terrorism' as defined by section 6 of the Anti- Terrorism Act, 1997 or not which offence is punishable under section 7(a) of the said Act. A plain reading of section 6 of the Anti-Terrorism Act, 1997 shows that while defining 'terrorism' the said section bifurcates the same into two parts, the mens rea for the offence falling in section 6(1)(b) or (c) and the actus reus of the offence falling in section 6(2) of the Act and in order to attract the definition of terrorism in a given case the requisite mens rea and actus reus must coincide and coexist. The provisions of section 6(5), (6) and (7) of the Act also indicate that there may be some other actions of a person which may also be declared or recognized as acts of terrorism by some other provisions of the same Act. Restricting ourselves to the provisions of section 6 of the Anti-Terrorism Act, 1997 for the present purposes we note that in a case where the action involves the doing of anything that causes death [section 6(2)(a)] and such causing of death is designed to coerce and intimidate or overawe the Government or the public or a section of the public or community or sect or create a sense of fear or insecurity in society [section 6(1)(b)] or such causing of death is for the purpose of advancing a religious, sectarian or ethnic cause [section 6(1)(c)] there the causing of death of the victim is to be accepted and treated as terrorism triable exclusively by an Anti-Terrorism Court. As far as the case in hand is concerned the action of Malik Muhammad Mumtaz Qadri appellant involved firing at Mr. Salman Taseer and thereby causing his death and, thus, his actus reus fell within the ambit of section 6(2)(a) of the Anti-Terrorism Act, 1997. As regards the appellant's mens rea he had himself stated in his statement recorded by the trial court under section 342, Cr.P.C. that the murder of Mr. Salman Taseer committed by him was "a lesson for all the apostates, as finally they have to meet the same fate". That statement of the appellant clearly established that he not only wanted to punish Mr. Salman Taseer privately for the perceived or imagined blasphemy committed by him but the appellant also Criminal Appeal No. 95 of 2019, etc. 29 wanted to send a message or teach a lesson to all others in the society at large who dared to follow Mr. Salman Taseer's suit. In this view of the matter the causing of death of Mr. Salman Taseer by the appellant was surely designed to intimidate or overawe the public or a section of the public or to create a sense of fear or insecurity in the society so as to attract the requisite mens rea contemplated by section 6(1)(b) of the Anti-Terrorism Act, 1997. Apart from that it cannot be seriously contested that the appellant had committed the murder of Mr. Salman Taseer for the purpose of advancing a religious cause and, thus, even the mens rea contemplated by section 6(1)(c) of the Anti- Terrorism Act, 1997 stood fully attracted to the case of the appellant. In these circumstances we have entertained no manner of doubt that the action of the appellant and the intention, design or purpose behind such action fully attracted the definition of terrorism contained in section 6 of the Anti-Terrorism Act, 1997 and, therefore, he was correctly and justifiably punished by the trial court under section 7(a) of the said Act for committing the offence of terrorism. In paragraph No. 44 of the impugned judgment the Islamabad High Court, Islamabad had set aside the appellant's conviction and sentence recorded by the trial court under section 7(a) of the Anti- Terrorism Act, 1997 on the sole ground that sufficient evidence had not been brought on the record by the prosecution to establish that the murder committed by the appellant had in fact created any sense of fear or insecurity in the society. We have found such an approach adopted by the Islamabad High Court, Islamabad vis-a-vis the offence of terrorism to be utterly misconceived. The provisions of section 6(1)(b) of the Anti-Terrorism Act, 1997 quite clearly contemplate creation of a sense of fear or insecurity in the society as a design behind the action and it is immaterial whether that design was actually fulfilled or not and any sense of fear or insecurity was in fact created in the society as a result of the action or not. It is the specified action accompanied by the requisite intention, design or purpose which constitutes the offence of terrorism under section 6 of the Anti-Terrorism Act, 1997 and the actual fallout of the action has nothing to do with determination of the nature of offence. In this view of the matter we find ourselves in agreement with the learned Advocate-General, Islamabad that Malik Muhammad Mumtaz Qadri appellant's acquittal by the Islamabad High Court, Islamabad from the charge under section 7(a) of the Anti-Terrorism Act, 1997 is liable to be set aside and consequently his conviction for the said offence recorded by the trial court needs to be restored.” Khuda-e-Noor v The State (PLD 2016 SC 195) “The crucial question involved in this appeal is as to whether the learned Sessions Judge, Mastung was justified in holding that the case in hand was one of honour killing and, thus, it was a case of "terrorism" attracting the exclusive jurisdiction of an Anti- Terrorism Court or not. It also needs to be examined as to whether the High Court of Balochistan, Quetta was justified in declaring in the case of Gul Muhammad (supra) that by virtue of the provisions of section 6(2)(g) of the Anti-Terrorism Act, 1997 all cases of honour killing are to be tried by an Anti-Terrorism Court. We have minutely gone through the said judgment passed by the High Court of Balochistan, Quetta and have found that for holding that all cases of honour killing attracted the definition of "terrorism" the High Court had only relied upon the provisions of section 6(2)(g) of the Anti-Terrorism Act, 1997 without appreciating that by virtue of the provisions of section 6 of the Anti-Terrorism Act, 1997 any action falling within any of the Criminal Appeal No. 95 of 2019, etc. 30 categories of cases mentioned in subsection (2) of section 6 of the Anti-Terrorism Act, 1997 could not be accepted or termed as "terrorism" unless the said action was accompanied by a "design" or "purpose" specified in section 6(1)(b) or (c) of the said Act. If the interpretation of section 6(2)(g) of the Anti-Terrorism Act, 1997 advanced by the High Court of Balochistan, Quetta in the said judgment were to be accepted as correct then all cases of a person taking the law in his own hands are to be declared or accepted as cases of terrorism but that surely was not the intention of the legislature. The provisions of section 6 of the Anti- Terrorism Act, 1997 which define "terrorism" clearly show that the said section is divided into two main parts, i.e. the first part contained in section 6(1)(b) and (c) of the said Act dealing with the mens rea mentioning the "design" or the "purpose" behind an action and the second part falling in section 6(2) of the said Act specifying the actions which, if coupled with the mens rea mentioned above, would constitute the offence of "terrorism". This scheme of section 6 of the Anti-Terrorism Act, 1997 had unfortunately not been considered by the High Court of Balochistan, Quetta while rendering the judgment mentioned above and, thus, we have every reason to declare that the said judgment passed by the High Court of Balochistan, Quetta had not laid down the law correctly and had in fact misconceived the legal position contemplated by section 6 of the Anti-Terrorism Act, 1997.” “The case in hand was a case of a private motive set up in the FIR and during the trial the motive set up in the FIR was changed by the prosecution and an element of honour killing was introduced but even that did not change the character of the offence which was nothing but a private offence committed in the privacy of a home with no design or purpose contemplated by section 6(1)(b) or (c) of the Anti-Terrorism Act, 1997. We have thus, entertained no manner of doubt that the allegations leveled against the appellant and his co-accused in the present criminal case did not attract the jurisdiction of an Anti-Terrorism Court, the learned Sessions Judge, Mastung was not justified in transferring the case to an Anti-Terrorism Court and the High Court was also not legally correct in dismissing the appellant's revision petition.” Sagheer Ahmed v The State and others (2016 SCMR 1754) “High Court in the impugned judgment has observed as follows: "10. The averments of FIR are silent regarding the financial status and source of income of the complainant against which accused have been demanding Bhatta. Complainant has also not disclosed the specific dates, times and places of demanding Bhatta by accused persons nor any such evidence was produced before the Investigating Officer to prima facie establish such allegations. In absence of any tangible material, mere allegations of demanding Bhatta do not attract section 6(2)(k) of Anti-Terrorism Act, 1997, in the present case nor said section was mentioned in the FIR and Challan. Perusal of Challan reflects that Investigating Officer had made a request to the Anti-Terrorism Court for return of FIR and other documents so that Challan may be submitted before the ordinary Court of law as no case under the provisions of Anti-Terrorism Act, Criminal Appeal No. 95 of 2019, etc. 31 1997 was made out, but his request was declined by the Anti-Terrorism Court vide order dated 09.06.2014, and cognizance was taken by the Court. 11. Cumulative effect of the averments of FIR, surrounding circumstances and other material available on record have replicated that offence having been committed on account of previous old enmity with a definite motive. The alleged offence occurred at Faiz Wah bridge, which is not situated in any populated area, consequently, the allegations of aerial firing have not appeared to us to be a case of terrorism as the motive for the alleged offence was nothing but personal enmity and private vendetta. The intention of the accused party did not depict or manifest any act of terrorism as contemplated by the provisions of the Anti-Terrorism Act, 1997. Consequently, we are of the considered view that complainant has failed to produce any material before the Investigating Officer that at the time of occurrence sense of fear, panic, terror and insecurity spread in the area, nevertheless it was a simple case of murder due to previous enmity, thus, alleged offence does not fall within purview of any of the provisions of Anti- Terrorism Act, 1997." 4. We note that observation made by the High Court is based upon the record of the case and no misreading in this respect was pointed out before us.” Ch. Shaukat Ali v Haji Jan Muhammad and others (2016 SCMR 533) “In view of the discussion in Para 7 above and the report of police under section 173, Code of Criminal Procedure, prima facie it appears that altercation between the parties occurred all of a sudden when the procession of the complainant side on winning the election was passing in front of house of Haji Jan Muhammad accused and there was no prior 'object/design.' 10. During the course of arguments, we have observed that basic premise of the arguments of learned counsel for the petitioner pivots around the judgment of a Five Member Bench of this Court in Kashif Ali v. The Judge, Anti-Terrorism Court No.II, Lahore and others (PLD 2016 SC 951), wherein the issue of jurisdiction has been dealt with. It is appropriate to reproduce the relevant portion of Para 12 of the said judgment for ready reference: "12. ......... In order to determine whether an offence falls within the ambit of Section 6 of the Act, it would be essential to have a glance over the allegations levelled in the FIR, the material collected by the investigating agency and the surrounding circumstances, depicting the commission of offence. Whether a particular act is an act of terrorism or not, the motivation, object, design or purpose behind the said Act has to be seen ....." 11. We have gone through the allegations leveled in the FIR, the material collected by the investigating agency during course of investigation and other surrounding circumstances as discussed Criminal Appeal No. 95 of 2019, etc. 32 above and are of the considered view that present case is not triable by a Court established under the provisions of Anti- Terrorism Act, 1997.” Waris Ali and 5 others v The State (2017 SCMR 1572) “Under the jurisprudence, "mens rea" is an essential ingredient of every crime, needs to be attended first by the Courts of law however, in cases of terrorism or terrorist activities the "mens rea" becomes twofold, i.e. the first object is to commit a crime, while the primary object of "mens rea" in the second fold speaks of terrorism related ideology, purpose and object, the most nefarious and detestable designs to commit crimes, creating sense of fear, insecurity and instability in the society and community with the ultimate object to destabilize the State as a whole. The true and perceivable object of this second "mens rea" is to create chaos, large scale disturbances, widespread sense of insecurity in the society/public and to intimidate and destabilize the State as a whole by means of terrorist activities. 10. In cases of this nature, "mens rea" is essentially with an object to accomplish the act of terrorism and carrying out terrorist activities to overawe the State, the State Institutions, the public at large, destruction of public and private properties, make assault on the law enforcing agencies and even at the public at large. The ultimate object and purpose of such acts is to terrorize the society or to put it under constant fear while in ordinary crimes committed due to personal vengeance/blood feud or enmity, the element to create fear or sense of insecurity in the society, public by means of terrorism is always missing. 11. True, that the offences contained in the Schedule to the Anti-Terrorism Act would fall within the definition of terrorism and terrorist activities but the crimes committed due to private revenge or to say traditional crimes, cannot be dragged into the fold of terrorism and terrorists activities. 12. The mere fact that the crimes for personal motive are committed in a gruesome or detestable manner, by itself would not be sufficient to bring the acts within the meaning of terrorism or terrorist activities. The Courts of law should not lose sight of the fact that terrorism and terrorist activities are committed and are carried out by a person, group of persons and well equipped organizations, whose primary aim and object is to destabilize the society and the State as a whole through such activities. The object and "mens rea" behind such activities is clearly spelled out from the nature of the crime committed, which must be attended to by the Courts with a deep judicial thought, as in the latter category the sole object/purpose in committing different crimes is to cause alarm, dread, fright inducing sense of insecurity in the mind of the people. 13. The acts of terrorism and terrorist activities are committed and carried out in a wolfish manner by terrorists and terrorist groups, to whom training and skills are imparted, their brainwash is made in a planned manner so that, while committing gruesome and sickening crimes, they have to act in cruel manner and in pursuance of creating terror, the prime and ultimate object to be accomplished. The suicidal attacks and blasts in busy markets/business places, hospitals, mosques, other religious and educational institutions where peoples are slaughtered/butchered and their limbs are blown apart through bomb blast, are some of the instances of such activities, Criminal Appeal No. 95 of 2019, etc. 33 conveying dreadful message to the community/society at large of terror, for no motive other than the one to create fear and sense of insecurity. 14. Albeit, murder, attempted murder, causing bodily harm or hurt and damage to property and some other offences have been included in the Third Schedule, appended to the Anti-Terrorism Act however, on plain reading, it becomes apparent that these offences are triable by the Special Courts, constituted under the Special Act but, there is no reference either expressed or implied in the Schedule that the Special Court shall award punishment under section 7 read with section 6 of the Act to accused persons charged for such crimes. There is another category of offences, which are squarely mentioned in the substantive provision of section 7 read with section 6 of the Special Act, which are specifically described to be acts of terrorism and shall fall within that definition however, the qualifying words, attached thereto, create a subtle distinction between the ordinary crimes, committed out of personal revenge, enmity or private motive and those committed for the object of creating terror. This aspect needs to be interpreted and construed in a meaningful and objective manner so that the two categories of crimes i.e. ordinary crimes and those related to terrorism, are neither mixed up nor intermingled because construction placed on it at random without judicial thoughts, the cardinal principle relating to construction of Statute, would be defeated and ordinary crimes having no nexus with terrorism or terrorist activities would be incorrectly or wrongly placed in the grey category of crimes, which is not the object and intent of the Legislature. If ordinary crimes committed due to personal revenge or motive are given the colour of terrorism or terrorist activities, hundreds and hundreds of Criminal Courts (Sessions Courts) and other Courts would be rendered inoperative and their vested jurisdiction would be taken away for no justifiable reason. The Prosecution and disgruntled complainants have been noticed making crude attempts to paint an ordinary crime as an act of terrorism so that the rival/opposite party is put to maximum mental agony. Here, it becomes the duty of the Court of law to draw a fine distinction between two kinds of crimes, which are definitely pole apart.” “19. Keeping in view the above narrative, it is thus essential to look at the legislation and the new enactments, as to how these were introduced and what was the purpose and object of the same. The conventional and ordinary crimes of murder, hurt, etc. were being committed due to personal motives however, in committing these crimes unlike in the past, where the same were being committed through clubs, sharp weapons, shotguns or non-automatic rifles, the old crime weapons were substituted by sophisticated weapons, fully or semi automatic which fell in the hands of the majority of the peoples. Now invariably these crimes are committed with modern weapons, which has no doubt a devastating effect. However, this category of crimes is committed due to longstanding blood feud and is the result of personal motive. There is no intention (mens rea) in committing these crimes to create fear, terrorize the society/community at large or to put it under constant fear and terror. In terrorism cases, evil elements are always persuasive factor and integral parts of it, therefore, due care and caution shall have to be observed by the Courts so that ordinary crimes might not be pushed to the grey area of terrorism or terrorist activities to be dealt with under the law, meant for a particular class of peoples, group of persons/organizations, which are to be treated altogether differently under the special law. The careful reading of all the relevant provisions of Anti-Terrorism Act, 1997 would show that the sole and primary object of the same is to curb and eliminate Criminal Appeal No. 95 of 2019, etc. 34 terrorism and terrorist activities and also the groups involved in the same, besides to eliminate the sectarian and factional violence committed with the same object therefore, ordinary crimes due to personal motive or revenge shall not be taken at par with acts of terrorism or terrorist activities, the sole object of which is nothing but to terrorize the society/community and the State as a whole. There is a sky high difference between the crimes of the old category and the new one, for which special law has been enacted.” “30. In the present case, besides many infirmities highlighted in the earlier paras of the judgment, it appears that the noose was thrown wider, the act/acts, the crimes committed and executed were the consequence of personal motive and in the course of the transaction no element of terrorism defined by Legislature was involved, although it was gruesome in nature, however, the punishment provided under section 302(a) and (b), P.P.C. is also death sentence besides compensation too was awardable under section 544-A, Cr.P.C. Therefore, in the matter of punishment there is no marked distinction, if the penal provision of P.P.C. is applied. The parties are having a blood feud since long and the object to be achieved was to take revenge for the previous murder and attempted murder, therefore, in our considered view, both the Courts below have not taken due care by applying correct provision of law to the established facts of the case. The construction on the provisions of Anti-Terrorism Act and the principle laid down in the cases cited at the bar i.e. Shahbaz Khan @ Tippu v. Special Judge Anti-Terrorism Court (PLD 2016 SC 1) and Kashif Ali v. The Judge Anti-Terrorism Court, No.II, Lahore (PLD 2016 SC 951) proceeds on different premises, both legal and factual and are not attracted to the facts and circumstances of the present case.” Sajid Rasheed Qureshi v Munawar Ahmad (2017 SCMR 162) Amjad Ali and others v The State (PLD 2017 SC 661) “The last aspect of this case highlighted in the leave granting order is as to whether the courts below were justified in convicting and sentencing the appellants for an offence under section 7(a) of the Anti-Terrorism Act, 1997 or not. We note in that context that a mere firing at one's personal enemy in the backdrop of a private vendetta or design does not ipso facto bring the case within the purview of section 6 of the Anti-Terrorism Act, 1997 so as to brand the action as terrorism. There was no 'design' or 'object' contemplated by section 6 of the Anti-Terrorism Act, 1997 involved in the case in hand. We further note that by virtue of item No. 4(ii) of the Third Schedule to the Anti-Terrorism Act, 1997 a case becomes triable by an Anti-Terrorism Court if use of firearms or explosives, etc. in a mosque, imambargah, church, temple or any other place of worship is involved in the case. That entry in the Third Schedule only makes such a case triable by an Criminal Appeal No. 95 of 2019, etc. 35 Anti-Terrorism Court but such a case does not ipso facto become a case of terrorism for the purposes of recording convictions and sentences under section 6 read with section 7 of the Anti- Terrorism Act, 1997. The case in hand had, thus, rightly been tried by an Anti-Terrorism Court but the said Court could not have convicted and sentenced the appellants for an offence under section 7(a) of the Anti-Terrorism Act, 1997 as it had separately convicted and sentenced the appellants for the offences of murder, etc. committed as ordinary crimes.” Abdul Nabi v The State (2017 SCMR 335) “After hearing the learned counsel for the parties and going through the record we have observed that the case in hand was not a case of terrorism but was a case of a private offence committed in secrecy. The "design" or "purpose" provided for by section 6 of the Anti-Terrorism Act, 1997 were non-existent in the present case and apparently there was no intention on the part of the appellant to create a sense of fear or insecurity in the public at large. Apart from that in view of the conclusions which are to follow in the later part of this judgment the case in hand was not a case of a gang-rape and, thus, even from that angle the Schedule to the Anti-Terrorism Act, 1997 did not stand attracted to the present case. In this view of the matter we are of the considered opinion that the courts below were not justified in convicting and sentencing the appellant for the offence under section 7(a) of the Anti-Terrorism Act, 1997.” Province of Punjab through Secretary Punjab Public Prosecution Department and another v The State (PLD 2018 SC 178) “The preamble of the Act, 1997 clearly indicates that the Act, 1997 was promulgated for the prevention of terrorism, sectarian violence and for speedy trial of heinous offences. So, in the cases of the terrorism, the mens-rea should be with an object to accomplish the act of terrorism and carrying out terrorist activities to overawe the state, the state institutions, the public at large, destruction of public and private properties, make assault on the law enforcing agency and even at the public at large in sectarian matters. The ultimate object and purpose of such act is to terrorize the society but in ordinary crimes committed due to personal vendetta or enmity, such elements are always missing so the crime committed only due to personal revenge cannot be dragged into the fold of terrorism and terrorist activities. The same was the view in the case of Mehram Ali v. Federation of Pakistan (PLD 1998 SC 1445) passed by a full bench (five members bench) of this Court. After the amendment the term "design" was used in Section 6 of the Act, which has widened the scope of the Act. The word "design" was substituted to see that if the act is designed to create sense of fear or insecurity in the society then the Anti- Terrorism Court will have the jurisdiction to try the same. The word "design" can be considered the scheme and object in the mind of accused for its subsequent execution. So the Courts while deciding the question of attraction of the provisions of the Act, has to see the manners in which the incident had taken place including the time and place and should also take note of the fact of the act as to create terror or insecurity in the general public where the action of the accused results in striking terror or creating fear, panic and sense of insecurity among the people in a Criminal Appeal No. 95 of 2019, etc. 36 particular vicinity, it amount to terror within the ambit of Section 6 of the Act. The Courts are required to see whether the terrorist act was such that it would have the tendency to create the sense of fear or insecurity in the mind of general public as well as psychological impact created in the mind of the society. The Courts can form opinion after going through the facts, circumstances and material so collected by the police in the case under discussion because the facts are varies from case to case.” Dilawar Mehmood alias Dulli and another v The State (2018 SCMR 593) “During the course of arguments, learned counsel for the petitioner vehemently contended that the learned Courts below have also convicted the petitioner under the provisions of Anti- Terrorism Act, 1997 without adverting to the fact that the said provisions are not attracted in the circumstances of the present case. Therefore, we have undertaken a detailed scrutiny of the evidence available on record in order to see whether the provisions of the Anti-Terrorism Act, 1997 are attracted to the present case or not. The occurrence in this case took place at cattle Market, Kundian. It is alleged by the prosecution that petitioner along with his co-accused Muhammad Arshad (P.O.) armed with Kalashnikovs came at the spot and made straight firing at deceased Muhammad Afzal, as a result whereof the latter succumbed to the injuries. The motive behind the occurrence as stated in the FIR was previous enmity. Having a look at the time of occurrence, place of occurrence, the mode and manner of the occurrence and the alleged motive between the parties coupled with other circumstances, we are of the considered view that provisions of Anti-Terrorism Act, 1997 are not attracted in this case and the learned Courts below have erred in law in convicting/sentencing the petitioner under the said provisions of the Anti-Terrorism Act, 1997.” 11. As against the above mentioned cases there are many other cases decided by this Court wherein the fallout, consequences or effect of an action were held to determine as to whether the action amounted to terrorism or not. The following cases may be referred to in this category of cases: Muhammad Ajmal v The State (2000 SCMR 1682) “On the face of it this seems to be an act of terrorism fully falling within the ambit of section 6 of the Act. Admittedly, the petitioner has behaved in an inhuman manner who while entering inside the Court-room made indiscriminate firing at the complainant party and the personnel of the Court staff and killed complainant's brother namely, Abdul Ghafoor and Muhammad Munir Naib Qasid and severely injured Reader of the Court namely, Umar Draz, thus created a sense of fear and insecurity among the people. All the witnesses examined at trial have fully supported the case of prosecution against the petitioner on the score that he fired indiscriminately in the Court-room on the abovementioned persons and that he was apprehended there and then alongwith his .30 bore pistol the crime weapon. Not only this but 5 crime empties with lead bullets were recovered from the Criminal Appeal No. 95 of 2019, etc. 37 Courtroom which were sealed and sent for expert opinion alongwith crime weapon and the same were opined to have been fired from the said weapon.” Mumtaz Ali Khan Rajban and another v Federation of Pakistan and others (PLD 2001 SC 169) In this case a Professor was gunned down because he did not allow a candidate appearing in an examination to adopt unfair means and this Court held that the act of the accused “struck terror and also created sense of fear and insecurity amongst people in general and Teachers/Professors in particular” and, therefore, the case was adjudged as one of a terrorist act. It was observed by this Court as follows: “It is contended with reference to Petition No. 1675 that the act of the petitioner does not fall within the ambit of "Terrorism Act" as defined in above-quoted section. Precisely stated the contention is that Professor Abdul Latif, deceased only prevented the petitioner from copying in the examination hall and immediately thereafter nothing happened and that the threat, as contemplated in above section, shall precede before a public servant is prevented from discharging his lawful duties. Learned counsel argued that at the time of occurrence the deceased was not performing any official duty, as such, alleged threat in the examination hall did not bring the case within the purview of above-quoted section. The contention is devoid of any force. The threat was translated into reality, and the deceased was killed. It is not necessary that the force must have been used immediate after the threat. The act of the petitioner squarely fell within the scope of "terrorist act", for the reasons that as a consequences of said threat the deceased was killed. Besides in the examination hall, as well as, in the college every body knew about it. It struck terror and also created sense of fear and insecurity amongst people in general and Teachers/Professors in particular.” Muhammad Mushtaq v Muhammad Ashiq and others (PLD 2002 SC 841) In this case four persons were murdered by their adversaries when they were proceeding to the premises of the District Courts, Lahore to attend a hearing of a case and this Court held that to be a terrorist act because: “The cumulative fall-out of the occurrence as to the time, place and manner of the act created a sense of the fear and insecurity in society. -------- The Lahore High Court fell in error by taking into consideration only the element of the alleged enmity existing between the parties. The High Court failed to advert to the terrorizing effect of the occurrence created on the minds of the people at large and of the concerned locality and passer-by who had no means to ascertain the background or motive for the crime or the enmity of the parties inter se.” Mst. Raheela Nasreen v The State and another (2002 SCMR 908) In the said case a Batman of a Major serving in the Pakistan Army had allegedly murdered the Major in connivance with the Major’s wife and this Court held that to be a case of terrorism by observing that: “From a bare reading of section 6(b) of the Act, it is manifest that it is not necessary that the offence as alleged had in fact, caused terror as the requirement of the said provision of law could be Criminal Appeal No. 95 of 2019, etc. 38 adequately satisfied if the same was likely to strike terror or sense of fear and insecurity in the people. ------- The learned Judges of the High Court came to the conclusion that a Batman who was a trusted person of an army officer if he kills as alleged his master in connivance with his (master’s) wife, the same was likely to strike terror or feeling of insecurity among the army officers which reasonings in our view are based on relevant consideration having logical nexus with the relevant law and do not suffer from any legal infirmity.” Muhammad Amin v The State (2002 SCMR 1017) A person had been murdered in this case during a dacoity at a house and another person had been shot at and injured by the fleeing dacoits and this Court found the case to be of terrorism by observing that: “The accused entered in the Baithak of the house of complainant armed with pistol with the purposes to commit robbery and in consequence to the resistance put by the father of complainant he was killed by the petitioner and further the petitioner with a view to create terror also fired at Nasir Ahmed in the street when he alongwith others, made an attempt to apprehend the petitioner and thus, the manner in which the petitioner while committing robbery took the life of deceased and caused fire-arm injuries to Nasir Ahmed in the broad daylight would squarely bring the case with the ambit of “terrorism” in term of section 6 of the Anti- Terrorism Act, 1997.” Zia Ullah v Special Judge, Anti-Terrorist Court, Faisalabad and 7 others (2002 SCMR 1225) In this case an Advocate proceeding towards a court in his robes was done to death by his enemies and this Court decided that the case was one of terrorism. It was observed that: “The alleged murder was committed in wanton, reckless and brutal manner and resultantly learned Advocate who was in his robe was done to death in Court vicinity. The gravity of the offence could not be diminished or minimized merely on the ground that alleged murder was not committed exactly within the Court premises as pressed time and again by the learned counsel for the respondents. It is to be noted that one Assistant Sub- Inspector of Police was seriously injured by means of fire-arms. We are not having the slightest doubt while holding that the alleged occurrence must have caused fear, panic and wave of sensation and thus the matter squarely falls within the ambit and jurisdiction of Special Court.” State through Advocate-General, N.-W.F.P., Peshawar v Muhammad Shafiq (PLD 2003 SC 224) A person was murdered in this case by firing at and sprinkling petrol on him and resultantly his body was charred and some of his bones were also burnt. The said murder had been committed at a deserted place and was a consequence of an on-going personal enmity. Apparently this Court was not properly assisted in that case and the newly introduced definition of ‘terrorism’ had not been brought to the notice of the Court and in that background, while reproducing and expressly referring to the deleted and inapplicable definition of a ‘terrorist act’ contained in the unamended section 6 of the Anti-Terrorism Act, 1997, this Court observed that: Criminal Appeal No. 95 of 2019, etc. 39 “A reading of the above provision of the Act demonstrates that it is not necessary that the commission of murder must have created panic and terror among the people. The Courts have only to see whether the terrorist act was such which would have the tendency to create sense of fear or insecurity in the minds of the people or any section of the society. We have to see the psychological impact created upon the minds of the people. ------- The moment such a charred dead body was brought for its funeral rites within the area of the deceased’s residence, it would had certainly caused shock, fear and insecurity among the people of the vicinity. The body was completely charred and the onlookers must have felt fear and insecurity on seeing the barbaric and callous manner in which the human body was mutilated.” Naeem Akhtar and others v The State and others (PLD 2003 SC 396) In this case an accused person’s mother was medically treated by a doctor for an accidental fracture of her leg but the accused party felt dissatisfied with her treatment by the doctor and with that motive the said doctor was abducted by the accused party and was murdered. This Court found the case to be of a terrorist act as: “The motive for the occurrence no doubt related to the personal grievance of the appellant who held the deceased responsible for imputation of leg of his mother but murder of the doctor after his abduction for such a motive would be an alarming situation for all doctors and would be a direct source of creating panic and terror in the medical profession.” “In general terms a fright, dread or an apprehension in the mind of a person induced by an horrible act of a person or causing fear and terror to the people is terrorism and if an act done by a person which is a source of terror in any section of people, which may cause damage to life or property of an individual, is a terrorist act and is an offence as defined in section 6 of A.T.A., 1997 and punishable under section 7 of the said Act. The act of abduction of the deceased and Dr. Javed Umer from an open place on gun point and subsequent murder of Dr. Muhammad Aslam for the reason that patient could not get desired result by the treatment given by him, would create unrest, panic and terror against the doctors who are discharging very sacred duty in the medical field.” Sh. Muhammad Amjad v The State (PLD 2003 SC 704) A young Barrister was abducted for ransom and was killed in this case. This Court held the case to be one of terrorism by observing that: “Even if by act of terrorism actual terror is not created, yet, above quoted subsection (b) [of section 6(1) of the Anti-Terrorism Act, 1997] will be applicable if it was likely to do any harm contemplated in the said subsection. It is the cumulative effect of all the attending circumstances which provide tangible guidelines to determine the applicability or otherwise of said subsection. It is noted that about 300/400 people gathered at the house of the complainant and they would have destroyed the house of the appellant, if the police would not have intervened. Lawyer community was also annoyed over the murder of a member of their community and had passed a resolution in this regard. Criminal Appeal No. 95 of 2019, etc. 40 Under the circumstances, the case was rightly assigned to Anti- Terrorism Court for trial.” Mst. Najam-un-Nisa v Judge, Special Court constituted under Anti-Terrorism Act, 1997 (2003 SCMR 1323) In this case seven persons had been killed in a house at night in furtherance of a private enmity and this Court held the case to be one of terrorism. It was observed that: “The venue of the commission of a crime, the time of occurrence, the motive which had led to the commission of a crime and the fact whether the said crime had or had not been witnessed by the public at large are not the only factors determining the issue whether a case did or did not fall within the parameters of the ATA of 1997. The crucial question is whether the said crime had or had not the effect of striking terror or creating a sense of fear and insecurity in the people or any section of the people. Needless to mention here that a crime of the kind in hand committed even in a remote corner does not remain unnoticed in the area in which is committed or even in the country on account of the print and electronic media. Seven persons being butchered in a house at night is not the kind of occurrence which would not create terror and horror in the people or any section of the people.” Abdul Ghafoor Bhatti v Muhammad Saleem and others (2003 SCMR 1934) In this case after a dacoity in a house the dacoits kidnapped two minors for ransom who were subsequently retrieved after payment of the demanded ransom. This Court found the case to be that of terrorism and observed that: “The Courts have to see the impact of the act which the miscreants have perpetrated. In the case in hand two minors were abducted for ransom by the miscreants. Such-like act has certainly got the tendency to create sense of fear and insecurity in the minds of the people or any section of the society. The psychological effect created upon the minds of the people would be the guiding feature so as to see whether the act complained of has got nexus with sections 6 and 7 of the Act. It is not necessary that the said act must have created insecurity. As already stated the Courts have to see only the tendency whether nature of such act would create sense of insecurity. By no stretch of imagination, it can be said that the abduction of minors at gun points would not create terror among reasonable and prudent persons of the society.” Muhammad Farooq v Ibrar and 5 others (PLD 2004 SC 917) “8. The very object to promulgate Anti-Terrorism Act, 1997 was to control the acts of terrorism, sectarian violence and other heinous offences as defined in section 6 of the Act and their speedy trials. To bring an offence within the ambit of the Act, it is essential to examine that the said offence should have nexus with the object of the Act and the offences covered by its sections 6, 7 and 8. On bare perusal of sub-clauses (b), (d), (h), and (i) of subsection (1) of section 6 of the Act, it is abundantly clear that the offence which creates a sense of fear or insecurity in society, causes death or endangers a person's life, involves firing on religious congregations, mosques, imambargahs, churches, temples and all other places of worship, or random firing to Criminal Appeal No. 95 of 2019, etc. 41 spread panic, or involves any forcible takeover of mosques or other places of worships, falls within its ambit. 9. In the case in the hand, though the motive is shown to be a previous enmity, yet paramount consideration to be taken note of is the culminative fall out of the occurrence. The incident having taken place in Mosque a public place particularly during Jumma prayer, where a large number of people usually assemble to offer prayer is sufficient to attract the provisions of section 6 of the Act. In such cases, the time, place and, manner of the act is of eminence importance.” Azizullah and another v The State and another (2005 SCMR 802) “The main object to promulgate the Act was to prevent and control the acts of terrorism, sectarian violence, hijacking, hostages taking and kidnapping or abduction for ransom. It was for this purpose that the offences falling within the ambit of the Act were to be disposed of expeditiously by way of speedy trial. In the instant case, it is alleged that wife and children of the complainant were called by the petitioners in their house on the pretext of Qura'n Khani and were made hostages and demand of ransom for their release was made. Not only this but also the brothers and grand-daughter of complainant who went to the house of petitioners to rescue the above mentioned detenus were also made hostages. It is revealed from the investigation that police in order to rescue the hostages when arrived at the house of petitioners, firing was made upon them and in retaliation police also fired at the abductors resulting in the death of one of the abductors namely Rahimullah. As discussed above, the material available with the prosecution prima facie shows that the abductees were kidnapped and ransom of Rs. 5 lacs was paid and further demand of ransom was also made and that the abductees were made hostages by the petitioners in their house. The above act created sense of fear or insecurity in the public as such the ingredients of sections 6 and 7 of the Act are attracted.” Mirza Shaukat Baig and others v Shahid Jamil and others (PLD 2005 SC 530) “The language as employed in the section is unambiguous, plain and simple which hardly requires any scholarly interpretation and is capable enough to meet all kinds of terrorism. It is an exhaustive section and does not revolve around the word “designed to” as used in section 6(1)(b) of the Act or mens rea but the key word, in our opinion is "action" on the basis whereof it can be adjudged as to whether the alleged offence falls within the scope of section 6 of the Act or otherwise? The significance and the import of word "action" cannot be minimized and requires interpretation in a broader prospective which aspect of the matter has been ignored by the learned High Court and the scholarly interpretation as made in the judgment impugned has no nexus with the provisions as contained in section 6 of the Act, the ground realities, objects and reasons, the dictums laid down by this Court and is also not inconsonance with the well-entrenched principles of interpretation of criminal statutes…” “Where a criminal act is designed to create a sense of fear or insecurity in the mind of the general public that can only be adjudged by keeping in view the impact of the alleged offence and manner of the commission of alleged offence. A farfetched interpretation of the words "designed to" as used in section 6 of Criminal Appeal No. 95 of 2019, etc. 42 the Act has been made by the learned High Court which we are afraid is not correct as the impact of the alleged offence and the manner in which it is committed has been ignored on the basis whereof the design of the alleged offence can be unveiled. There is absolutely no doubt in our mind that the Act was brought into force for the prevention and elimination of terrorism, sectarian violence and for expeditious dispensation of justice in the heinous offences as stipulated in Act itself. We have also surveyed the case law on the subject. It is, however, to be noted here at this juncture that so far as the concept of "terrorism" is concerned there is no substantial change between the Suppression of Terrorism Activities (Special Courts) Act (XV of 1975) and the Anti-Terrorism Act (XXVII of 1997) except a few minor changes having no bearing on the meaning and scope of terrorism.” “After having gone through the entire law as enunciated by this Court in different cases the judicial consensus seems to be that striking of terror is sine qua non for the application of the provisions as contained in section 6 of the Act which cannot be determined without examining the nature, gravity and heinousness of the alleged offence, contents of F.I.R., its cumulative effects on the society or a group of persons and the evidence which has come on record. In so far as the factum of intention is concerned that cannot be evaluated without examining the entire evidence which aspect of the matter squarely falls within the jurisdictional domain of the Court constituted under the Act and such questions cannot be decided by invocation of Constitutional jurisdiction without scrutinizing all the circumstances in a broader prospect by keeping in view the ground realities in mind. There could be no second opinion that where the action of an accused results in striking terror or creating fear, panic, sensation, helplessness and sense of insecurity among the people in a particular vicinity it amounts to terror and such an action squarely falls within the ambit of section 6 of the Act and shall be triable by a Special Court constituted for such purpose. What was the real intention of the offender could only be adjudged on the basis of evidence which cannot be determined by invocation of Constitutional jurisdiction and learned Special Judge who is usually a Senior Sessions Judge can take care of the matter which can be transferred by him if it does not fall within his jurisdictional domain. There is no denying the fact that it was never the intention of legislature that every offender irrespective of the nature of the offence and its overall impact on the society or a section of society must be tried by the Anti-Terrorist Court but the question as to whether such trial shall be conducted or not initially falls within the jurisdictional domain of Anti-Terrorist Court which cannot be interfered with in the absence of sufficient lawful justification which appears to be lacking in these cases. It is, however, obligatory for such Courts to watch carefully the nature of accusation and examine the entire record with diligent application of mind to determine as to whether the provisions as contained in the Act would prima facie be attracted or otherwise? Where such Courts are of the view after taking cognizance of the offence that the alleged offence does not fall prima facie under the provisions of the Act it must transfer the same to regular Court without loss of time.” Zahid Imran and others v The State and others (PLD 2006 SC 109) “The language as employed in the section is unambiguous, plain and simple which hardly requires any scholarly interpretation and is capable enough to meet all kinds of terrorism. It is an Criminal Appeal No. 95 of 2019, etc. 43 exhaustive section and does not revolve around the word "designed to" as used in section 6(1)(b) of the Act or mens rea but the key word, in our opinion, is "action" on the basis whereof it can be adjudged as to whether the alleged offence falls within the scope of section 6 of the Act or otherwise? After having gone through the provisions as contained in section 6 of the Act we are of the firm opinion that "terrorism" means the use or threat of "action" where the "action" falls within the meaning of subsection (2) of section 6 of the Act and creates a serious risk to safety of the public or a section of the public, or is designed to frighten the general public and thereby prevent them from coming out and carrying on their lawful trade and daily business, and disrupts civil life shall amount to terrorism as enumerated in section 6 of the Act.” “The judicial consensus seems to be that striking of terror is sine qua non for the application of the provisions as contained in section 6 of the Act 1997 which cannot be determined without examining the nature, gravity and heinousness of the alleged offence, contents of the F.I.R., its cumulative effects on the society and a class of persons and the evidence which has come on record. There could be no second opinion that where the action of an accused person results in striking terror or creating fear, panic, sensation, helplessness and sense of insecurity among the people in a particular vicinity it amounts to terror and such an action squarely falls within the ambit of section 6 of the Act 1997.” Muhammad Idrees and others v The State (2008 SCMR 1544) “However, since it was not established on record that the acts done by the accused had created sense of fear or insecurity in public, nor any section of public or community or any sect was shown to have been affected, as the incident had taken place at night on a bank of canal which by no stretch of imagination could be termed as a public place, therefore, in our view, section 7 of the Anti-Terrorism Act, 1997, was not attracted in the instant case.” Nazeer Ahmed and others v Nooruddin and another (2012 SCMR 517) “We have heard the learned Advocate Supreme Court and have perused the record. The learned High Court has examined the material at length and has rightly concluded that the act of the petitioners created sense of insecurity amongst the villagers and did destabilize the public at large and, therefore, attracts the provisions of section 6 of the Anti-Terrorism Act. The learned Advocate Supreme Court in support of his contentions has relied upon the Judgments reported in the case of Mohabat Ali v. The State reported in 2007 SCMR 142 and the case of Bashir Ahmed v. Muhammad Siddiq, reported in PLD 2009 SC 11, which are distinguishable on facts. Neither the motive nor intent for commission of the offence is relevant for the purpose of conferring jurisdiction on the Anti-Terrorism Court. It is the act which is designed to create sense of insecurity and or to destabilize the public at large, which attract the provisions of section 6 of the AT Act, which in the case in hand was designed to create sense of insecurity amongst the co-villagers.” Shahid Zafar and 3 others v The State Criminal Appeal No. 95 of 2019, etc. 44 (PLD 2014 SC 809) “As to learned Advocate Supreme Court's contention that the incident could not be defined as an act of terrorism, we are quite clear in our minds that such a gruesome murder at the hands of a law enforcing agency would certainly create a sense of terror, insecurity and panic in the minds and hearts of those who were available at the scene and the entire public who had watched this DVD on air. In this regard a reference may be made to the definition of terrorism in Section 6(1)(b) of the Anti-Terrorism Act according to which this is the use or threat of action where the use or threat is designed to coerce and intimidate or overawe the Government or the public or a section of the public or community or sect or create a sense of fear or insecurity in society. In our opinion therefore such definition can be bifurcated into two i.e. where the use or threat is designed to coerce and intimidate or overawe the Government or the public or a section of the public or community or sect or where it creates a sense of fear or insecurity in society. Although the offence under consideration may not have been designed to coerce and intimidate or overawe the Government or a section of the public or community or sect but it certainly created a sense of fear or insecurity in the society. What could be a more grievous and heinous crime then to shoot an unarmed young boy who was begging for his life and thereafter let him bleed to death despite his pleading that he should be taken to the hospital. This certainly did create a sense of fear and insecurity in the public at large and hence we are of the opinion that the appellants were correctly charged, tried, convicted and sentenced under Section 302(b), P.P.C. and section 7(a) of the Anti-Terrorism Act, 1997.” Kashif Ali v The Judge, Anti-Terrorism, Court No.II, Lahore and others (PLD 2016 SC 591) “12. The term "design" now used in Section 6 of the Act has widened the scope of the Act and the terms "intention" and "motive" previously used have been substituted with the sole object that if the act is designed to create a sense of fear or insecurity in society, then the Anti-Terrorism Court will have the jurisdiction. From the above definition of the term "design" it is clear that it means a plan or scheme conceived in mind and intended for subsequent execution. In order to determine whether an offence falls within the ambit of Section 6 of the Act, it would be essential to have a glance over the allegations levelled in the F.I.R, the material collected by the investigating agency and the surrounding circumstances, depicting the commission of offence. Whether a particular act is an act of terrorism or not, the motivation, object, design or purpose behind the said Act has to be seen. The term "design", which has given a wider scope to the jurisdiction of the Anti-terrorism Courts excludes the intent or motive of the accused. In other words, the motive and intent have lost their relevance in a case under Section 6(2) of the Act. What is essential to attract the mischief of this Section is the object for which the act is designed.” “17. The judgment relied upon by the learned High Court in the case of Basharat Ali v. Special Judge, Anti-Terrorism Court-II, Gujranwala (PLD 2004 Lahore 199) was overruled by this Court in the case of Mirza Shaukat Baig and others v. Shahid Jamil and others (PLD 2005 SC 530), which is the correct law. It was held by this Court in the case of Mirza Shoukat Baig (supra) that there could be no second opinion that where the action of an accused Criminal Appeal No. 95 of 2019, etc. 45 results in striking terror, or creating fear, panic sensation, helplessness and sense of insecurity among the people in a particular vicinity it amounts to terror and such an action squarely falls within the ambit of Section 6 of the Act and shall be tried by a Special Court constituted for such a purpose. Moreover, in State through Advocate General v. Muhammad Shafiq (PLD 2003 SC 224) it was held by this Court that the Courts are only required to see whether the terrorist act was such that it would have the tendency to create sense of fear or insecurity in the minds of the people or any section of the society, as well as the psychological impact created on the minds of the society. Whereas a strictly narrow interpretation of the term "design" in Section 6 of the Act is undoubtedly one where a premeditated plan to create terror is the object behind the said act, we cannot simply rule out from the ambit of Section 6 an individual's action which is implemented in a setting where a creation of feeling of fear in the society was an inevitable consequence of the said act.” Shahbaz Khan alias Tippu and others v Special Judge, Anti- Terrorism, Court No.3, Lahore and others (PLD 2016 SC 1) “7. It is clear from a textual reading of Section 6 of ATA that an action categorized in subsection (2) thereof constitutes the offence of terrorism when according to Section 6(1)(b) ibid it is "designed" to, inter alia, intimidate or overawe the public or to create a sense of fear or insecurity in society. Therefore, the three ingredients of the offence of terrorism under Section 6(1)(a) and (b) of ATA are firstly, taking of action specified in Section 6(2) of ATA; secondly, that action is committed with design, intention and mens rea; and thirdly, it has the impact of causing intimidation, awe, fear and insecurity in the public or society.” “8. There is no doubt that the brutal killing of five unarmed persons on a public street would have stricken panic, fear and insecurity among the residents in the locality. However, because of the motive of a family dispute given in the FIR, there is a challenge that the required third element of "design," intention or mens rea to commit terrorism is lacking in the present case. This element of the offence of terrorism has been treated as the pivotal criterion for ascertaining the jurisdiction of a learned ATC in the two judgments referred in the leave granting order: namely Bashir Ahmed v. Muhammad Siddique (PLD 2009 SC 11) and Ahmed Jan v. Nasrullah (2012 SCMR 59). The judgment in Ahmed Jan's case ibid endorses the law enunciated in Bashir Ahmed's case ibid to the effect that under Section 6(1)(b) of ATA a design that is intention or mens rea of an accused to cause the prescribed public or social reaction to an action specified in Section 6(2) of ATA is essential for the commission of the offence of terrorism.” “11. Primarily, the rule laid down in Bashir Ahmed's case ibid requiring the ascertainment of the design, intention and mens rea of an act for establishing the jurisdiction of a learned ATC rests on dicta given in Mehram Ali's case ibid. However, Bashir Ahmed's case ibid does not consider the ways and means by which the design, intention or mens rea, for an act of terrorism, requiring in essence the proof of an assailant's state of mind, should be ascertained by a Court of law. Whether the Court should mechanically consider the motive alleged by a complainant in the FIR to be decisive or should it also scrutinize other aspects of an occurrence to assess if the culprits had any design, intention or mens rea to commit a terrorist act? Criminal Appeal No. 95 of 2019, etc. 46 12. In most cases, the nature of the offences, the manner of their commission and the surrounding circumstances demonstrate the motive given in the FIR. However, that is not always the case. When offences are committed by persons with impunity disregarding the consequence or impact of their overt action, the private motive or enmity disclosed in the FIR cannot be presumed to capture their true intent and purpose. In such cases, it is plain that action taken and offences committed are not instigated "solely" by the private motive alleged in the FIR. It is settled law that intention, motive or mens rea refer to the state of mind of an offender. It is equally well established that a state of mind cannot be proven by positive evidence or by direct proof. The intention of an accused for committing an offence is to be gathered from his overt acts and expression. It has been held in the case of State v. Ataullah Khan Mangal (PLD 1967 SC 78) that an accused person "must be deemed to have intended the natural and inevitable consequences of his action." Thus apart from the overt acts of the accused, the injuries caused by him or consequences ensuing from his actions and the surrounding circumstances of the case are all relevant to ascertain the design intention or mens rea that instigated the offences committed. These principles are enunciated in Zahid Imran v. The State (PLD 2006 SC 109) and Pehlwan v. Crown (1969 SCMR 641). Intention is presumed when the nature of the act committed and the circumstances in which it is committed are reasonably susceptible to one interpretation. In such event, the rule of evidence that the natural and inevitable consequences of a person's act are deemed to have been intended by him is applicable: Jane Alam v. The State (PLD 1965 SC 640). In Muhammad Mushtaq v. The State (PLD 2002 SC 841) the inevitable consequence of an act was considered as its design. Four persons were killed to settle a blood feud while they were on their way for a Court hearing at the nearby District Courts, Lahore. This Court observed that the learned ATC was the competent trial forum in the case: "7. It would thus appear that ordinary crimes are not to be dealt with under the Act. A physical harm to the victim is not the sole criterion to determine the question of terrorism. What is to be seen is the psychological effect produced by the violent action or with the potential of producing such an effect on the society as a whole or a section thereof. There may be a death or injury caused in the process. Thus where a criminal act is designed to create a sense of fear or insecurity in the minds of the general public disturbing even tempo of life and tranquility of the society, the same may be treated to be a terrorist act. There may be just a few killings, random or targeted, resorted to with single-mindedness of purpose. But nevertheless the impact of the same may be to terrorize thousands of people by creating a panic or fear in their minds". 8. In the present case, we, prima facie, find that the occurrence took place during the peak hours of the day on the busy Court Road near the District Courts, Lahore, wherein four persons while on their way to attend the Court were allegedly murdered by the use of kalashnikovs. The cumulative fall-out of the occurrence as to the time, place and manner of the act created a sense of the fear and insecurity in society. The case was, Criminal Appeal No. 95 of 2019, etc. 47 therefore, triable by the Anti-Terrorism court established under the said Act ..." 13. When wanton overt acts committed by an accused lead to horrendous consequences then the motive given in the FIR merely indicates the background. The presumption that the natural and inevitable consequences of the acts of an accused are deemed to be intended, provides a reliable touchstone for gathering the design, intention or mens rea of an assailant in the context of Section 6(1)(b) of ATA. 14. Indeed neither Mehram Ali's case nor Bashir Ahmed's case ibid have confined judicial recourse solely to the motive disclosed in the FIR for ascertaining the mens rea for the offence of terrorism. For the existence or otherwise of mens rea of the said offence, a Court of law may rightfully interpret the different aspects of a prosecution case noted above in order to ascertain the design behind the acts committed by an assailant. In the present case the assailants who committed the brutal acts of causing the death of five persons had no personal grouse against their victims. Prima facie, they executed the instructions given by the other accused. This was done with impunity because doing the job was material and not the consequence and impact of their overt action. A dispute about the possession of a family house thus exploded disproportionately to a scale depicting wanton ruthlessness and impunity in the multiple killing of victims in a public place inhabited by public residents. To our minds, the motive of a domestic family property dispute is merely the spark that triggered the occurrence, or metaphorically, the fire. The rule that the accused in the present case are deemed to intend the natural and inevitable consequences of action taken is apt and accurate in depicting their design, intention and mens rea. The three ingredients under Section 6 of ATA that constitute the offence of terrorism are prima facie available in the present case. 15. Therefore, the approach in the impugned judgment to interpret overt acts of the accused and the surrounding circumstances of the case in order to ascertain whether the case falls within the ambit of the ATA, is justified. Equally, the reliance placed by the learned ATC solely on the motive disclosed in the FIR No. 247 of 2014 lodged by the complainant in the case adopts a course meant for simple cases wherein the motive disclosed in the FIR is duly demonstrated by the other criteria for ascertainment of mens rea.” 12. One cannot help noticing that all the cases referred to in the last paragraph and falling in the second category pertained to offences committed for private purposes with no motivation to destabilize the State or the society at large but they were all adjudged to be cases of terrorist acts or terrorism on the basis of a presumptive and speculative quantification of the effect that the relevant actions could have created in the society. In all such cases, it is observed with great deference, the changed definition of ‘terrorism’ with its resultant shifting of focus from the effect of the action to the design or purpose behind the action had not been noticed and all those cases Criminal Appeal No. 95 of 2019, etc. 48 had been decided on the basis and on the yardstick of the principles provided for by the earlier definition of a ‘terrorist act’. In the above mentioned cases the gravity of the offence with its resultant actual, intended or potential effect on the people at large was considered as the measure for determining whether the act constituted terrorism or not. We can appreciate that the mindset inherited by us in the background of the Summary Military Courts, Speedy Trial Courts and Special Courts for Suppression of Terrorist Activities, which were different courts constituted at different stages in the past for separate and special handling of offences of grave nature, may take some time to be dispelled and it may take us a while to appreciate and realize that an act of ‘terrorism’ is not just a grave offence but it is a class and species apart and this class or species has to be understood in its true and correct perception and perspective otherwise every serious offence may be found by one Judge or the other to involve terrorism depending upon a subjective assessment of the potential of the act to create some sense of fear or insecurity in some section of the society. Such an approach, it may be observed with great veneration, may not be wholesome as it may ultimately result in every case of a serious offence landing in a Special Court and thereby rendering the ordinary courts substantially redundant. It ought not to be lost sight of that the legislature’s repeal of the Suppression of Terrorist Activities (Special Courts) Act, 1975, doing away with the Schedule of the Anti-Terrorism Act, 1997 at one stage and also its retraction from the ‘effect’ through the fresh definition of ‘terrorism’ cannot be without any significance or purpose. That drastic change of the definition manifestly indicated a change of meanings and of focus and such a change has to be given its proper effect. After all if the term ‘terrorism’ as defined today is still to be interpreted in the same manner as the erstwhile term ‘terrorist act’ then there was hardly any occasion or need for the legislature to amend the definition and to bring about any change in the existing law in that Criminal Appeal No. 95 of 2019, etc. 49 regard. The legacy and interpretations pertaining to the Suppression of Terrorist Activities (Special Courts) Act, 1975 and of the original provisions of the Anti-Terrorism Act, 1997 have now to be shaken or shrugged off so as to correctly understand the definition of ‘terrorism’ introduced through the later Act and its amendments. This Court had itself declared in the above mentioned case of Mumtaz Ali Khan Rajban and another v Federation of Pakistan and others (PLD 2001 SC 169) that the subject matters of the Suppression of Terrorist Activities (Special Courts) Act, 1975 and the Anti- Terrorism Act, 1997 were “different” and their respective applicability was “governed by different criteria”. 13. We understand, and we observe so with all the respect at our command, that in the above mentioned cases falling in the second category this Court had, wittingly or otherwise, detracted or moved away from the principle of nexus so painstakingly carved out by it in the case of Mehram Ali and others v Federation of Pakistan and others (PLD 1998 SC 1445). As already noticed above, one of the reasons for such drifting away from the principle of nexus was the effect-based definition of “terrorist act” provided in the repealed Suppression of Terrorist Activities (Special Courts) Act, 1975. Another reason for the lack of clarity in this respect was an incorrect understanding of the words “speedy trial of heinous offences” contained in the Preamble to the Anti-Terrorism Act, 1997. In many of the judgments referred to above those words appearing in the Preamble were mentioned and relied upon for holding that commission of heinous offences also amounted to terrorism even if the ‘design’ or ‘purpose’ mentioned in clauses (b) and (c) of subsection (1) of section 6 of the Anti-Terrorism Act, 1997 did not stand attracted to a case. For removal of any confusion in that respect the scheme of the Anti-Terrorism Act, 1997 needs to be understood and appreciated in its correct perspective. The Preamble to the said Act reads as follows: “An act to provide for the prevention of terrorism, sectarian violence and for speedy trial of heinous offences; Criminal Appeal No. 95 of 2019, etc. 50 Whereas it is expedient to provide for the prevention of terrorism, sectarian violence and for speedy trial of heinous offences and for matters connected therewith and incidental thereto; It is hereby enacted as follows:-------” Section 12 of that Act provides as under: 12. Jurisdiction of Anti-terrorism Court.- (1) Notwithstanding anything contained in the Code or in any other law, a scheduled offence committed in an area in a Province or the Islamabad Capital Territory shall be triable only by the Anti-terrorism Court exercising territorial jurisdiction in relation to such area.” Section 2(t) of the Act defines a scheduled offence in the following terms: “ “Scheduled offence” means an offence as set out in the Third Schedule.” The Third Schedule to the Act reads as under: THE THIRD SCHEDULE (Scheduled Offences) [See section 2(t)] 1. Any act of terrorism within the meaning of this Act including those offences which may be added or amended in accordance with the provisions of section 34 of this Act. 2. Any other offence punishable under this Act. 3. Any attempt to commit, or aid or abetment of, or any conspiracy to commit, any of the aforesaid offences. 4. Without prejudice to the generality of the above paragraphs, the Anti-terrorism Court to the exclusion of any other Court shall try the offences relating to the following, namely:- (i) Abduction or kidnapping for ransom; (ii) Use of firearms or explosives by any device, including bomb blast in a mosque, imambargah, church, temple or any other place of worship, whether or not any hurt or damage is caused thereby; or (iii) Firing or use of explosive by any device, including bomb blast in the court premises; or (iv) Hurt caused by corrosive substance or attempt to cause hurt by means of a corrosive substance; and Criminal Appeal No. 95 of 2019, etc. 51 (v) Unlawful possession of an explosive substance or abetment for such an offence under the Explosive Substances Act, 1908 (VI of 1908). A careful reading of the Third Schedule shows that an Anti- Terrorism Court has been conferred jurisdiction not only to try all those offences which attract the definition of terrorism provided by the Act but also some other specified cases involving heinous offences which do not fall in the said definition of terrorism. For such latter category of cases it was provided that although those offences may not constitute terrorism yet such offences may be tried by an Anti-Terrorism Court for speedy trial of such heinous offences. This distinction between cases of terrorism and cases of specified heinous offences not amounting to terrorism but triable by an Anti-Terrorism Court has already been recognized by this Court in the cases of Farooq Ahmed v State and another (PLJ 2017 SC 408), Amjad Ali and others v The State (PLD 2017 SC 661) and Muhammad Bilal v The State and others (2019 SCMR 1362). It has been clarified by this Court in those cases that such specified heinous offences are only to be tried by an Anti-Terrorism Court and that court can punish the person committing such specified heinous offences only for commission of those offences and not for committing terrorism because such offences do not constitute terrorism. For the purposes of further clarity on this issue it is explained for the benefit of all concerned that the cases of the offences specified in entry No. 4 of the Third Schedule to the Anti- Terrorism Act, 1997 are cases of those heinous offences which do not per se constitute the offence of terrorism but such cases are to be tried by an Anti-Terrorism Court because of their inclusion in the Third Schedule. It is also clarified that in such cases of heinous offences mentioned in entry No. 4 of the said Schedule an Anti-Terrorism Court can pass a punishment for the said offence and not for committing the offence of terrorism. It may be pertinent to mention here that the offence of abduction or kidnapping for ransom under section 365-A, PPC is included in entry No. 4 of the Third Schedule and kidnapping for ransom is also one of the actions specified in section 7(e) of the Anti-Terrorism Act, 1997. Criminal Appeal No. 95 of 2019, etc. 52 Abduction or kidnapping for ransom is a heinous offence but the scheme of the Anti-Terrorism Act, 1997 shows that an ordinary case of abduction or kidnapping for ransom under section 365-A, PPC is merely triable by an Anti-Terrorism Court but if kidnapping for ransom is committed with the design or purpose mentioned in clauses (b) or (c) of subsection (1) of section 6 of the Anti-Terrorism Act, 1997 then such offence amounts to terrorism attracting section 7(e) of that Act. In the former case the convicted person is to be convicted and sentenced only for the offence under section 365-A, PPC whereas in the latter case the convicted person is to be convicted both for the offence under section 365-A, PPC as well as for the offence under section 7(e) of the Anti-Terrorism Act, 1997. The same may also be said about the other offences mentioned in entry No. 4 of the Third Schedule to the Act pertaining to “Use of firearms or explosives by any device, including bomb blast in a mosque, imambargah, church, temple or any other place of worship, whether or not any hurt or damage is caused thereby”, “Firing or use of explosive by any device, including bomb blast in the court premises”, “Hurt caused by corrosive substance or attempt to cause hurt by means of a corrosive substance” and “Unlawful possession of an explosive substance or abetment for such an offence under the Explosive Substances Act, 1908 (VI of 1908)”. Such distinction between cases of terrorism and other heinous offences by itself explains and recognizes that all heinous offences, howsoever serious, grave, brutal, gruesome, macabre or shocking, do not ipso facto constitute terrorism which is a species apart. Through an amendment of the Third Schedule any heinous offence not constituting terrorism may be added to the list of offences which may be tried by an Anti-Terrorism Court and it was in this context that the Preamble to the Act had mentioned “Whereas it is expedient to provide for the prevention of terrorism, sectarian violence and for speedy trial of heinous offences”. 14. Adverting now to the written submissions of the learned Attorney-General based upon the provisions of subsection (3) of section 6 of the Anti-Terrorism Act, 1997 we may straightaway Criminal Appeal No. 95 of 2019, etc. 53 observe that we have felt nothing but sympathy for the learned Attorney-General because he had to make some effort to make some sense of the said provisions which, with respect, make no sense to us. He has urged that subsections (1), (2) and (3) of section 6 of the said Act are to be read in conjunction. The said provisions read as follows: 6. Terrorism. – (1) In this Act, “terrorism” means the use or threat of action where: (a) the action falls within the meaning of subsection (2), and (b) the use or threat is designed to coerce and intimidate or overawe the Government or the public or a section of the public or community or sect or create a sense of fear or insecurity in society; or (c) the use or threat is made for the purpose of advancing a religious, sectarian or ethnic cause or intimidating and terrorizing the public, social sectors, media persons, business community or attacking the civilians, including damaging property by ransacking, looting, arson, or by any other means, government officials, installations, security forces or law enforcement agencies: Provided that nothing herein contained shall apply to a democratic and religious rally or a peaceful demonstration in accordance with law. (2) An “action” shall fall within the meaning of subsection (1), if it: ------- (3) The use or threat of any action falling within sub-section (2) which involves the use of firearms, explosive or any other weapon is terrorism, whether or not sub-section (1) (c) is satisfied. Reading of subsections (1) and (2) of the said section together makes good sense, i.e. all the actions specified in subsection (2) shall constitute terrorism if they are committed with the ‘design’ mentioned in clause (b) of subsection (1) or are committed for the ‘purpose’ referred to in clause (c) of subsection (1) of that section. Subsection (3) of that section, however, provides that “The use or threat of any action falling within sub-section (2) which involves the use of firearms, explosive or any other weapon is terrorism, whether or not sub-section (1)(c) is satisfied” which means that if for commission of the actions mentioned in subsection (2) a firearm, an explosive substance or any other weapon is actually used or a threat regarding use of the same is extended then all Criminal Appeal No. 95 of 2019, etc. 54 such actions are to constitute the offence of terrorism even if the other requirements of clause (c) of subsection (1) of section 6 are not satisfied or fulfilled. The requirements that need to be satisfied for invoking clause (c) of subsection (1) of section 6 are that the use or threat of action should be for “the purpose of advancing a religious, sectarian or ethnic cause” or for the purpose of “intimidating and terrorizing the public, social sectors, media persons, business community” or for the purpose of “attacking the civilians, including damaging property by ransacking, looting, arson, or by any other means, government officials, installations, security forces or law enforcement agencies”. If the said requirements and purposes mentioned in clause (c) of subsection (1) of section 6 do not need to be satisfied and if mere use or threat of use of a firearm, an explosive substance or any other weapon for commission of the actions mentioned in subsection (2) of section 6 is to ipso facto constitute the offence of terrorism then every murder committed (action under clause (a) of subsection (2) of section 6), every grievous bodily injury or harm caused (action under clause (b) of subsection (2) of section 6), every grievous damage to private property (action under clause (c) of subsection (2) of section 6), doing anything that is likely to cause death or endangers a person’s life (action under clause (d) of subsection (2) of section 6) or creating a serious risk to safety of the public or a section of the public (action under clause (i) of subsection (2) of section 6) even if committed with an ordinary stick, a brickbat or a stone when used as a weapon would constitute the offence of terrorism! Such trivializing of the diabolical offence of terrorism surely could not be the intention of the legislature when framing a law for the offence of terrorism which is a class apart and a species different from any other ordinary crime. In this context we have found the learned Additional Prosecutor-General, Punjab to be quite justified in maintaining that the provisions of subsection (3) of section 6 of the Anti-Terrorism Act, 1997 are quite problematic as they do not piece well with the remaining provisions of the said section as far as the matter of defining terrorism is concerned. He has also been found by us to be correct in submitting that if the Criminal Appeal No. 95 of 2019, etc. 55 provisions of subsection (3) of section 6 of the Anti-Terrorism Act, 1997, as they are worded, are to be given effect then the distinction between the peculiar offence of terrorism and most of the run of the mill offences committed in the society in routine would be obliterated. In this backdrop his submission that the provisions of subsection (3) of section 6 may be read down in order to save the main Act and its purposes has been found by us to be meriting serious consideration. We may add here that the Anti-Terrorism Act, 1997 was introduced about twenty-two years ago but in all these years, to the best of our knowledge, the provisions of subsection (3) of section 6 of that Act have never before been pressed into service in any reported case in the country. It appears that the Judges and lawyers in the country have found the said provisions to be so confusing and incentive-incompatible that they have kept themselves away from the same so far. It is about time that the legislature may like to have another look at the said provisions and to consider deleting or suitably amending the same so as to bring them in harmony with the remaining provisions of the Act. 15. The resume of our legislative developments in the field of terrorism shows, as already observed in the case of Basharat Ali (supra), that with different laws and definitions of terrorist act or terrorism the emphasis has been shifting from one criterion to another including the gravity of the act, lethal nature of the weapon used, plurality of culprits, number of victims, impact created by the act and effect of fear and insecurity brought about or likely to be created in the society by the action. The last definition of a ‘terrorist act’ contained in section 6 of the Anti- Terrorism Act, 1997 squarely focused on the effect of fear and insecurity intended to be created by the act or actually created by the act or the act having the potential of creating such an effect of fear and insecurity in the society. It, however, appears that subsequently the legislature did not feel convinced of the aptness or correctness of that definition and resultantly the erstwhile definition of a ‘terrorist act’ contained in section 6 of the Anti- Criminal Appeal No. 95 of 2019, etc. 56 Terrorism Act, 1997 was repealed and a totally fresh and new definition of ‘terrorism’ was introduced through an amended section 6 of the Anti-Terrorism Act, 1997. The legislature had probably realized by then that an effect of an act may not always be a correct indicator of the nature of such an act as every crime, especially of violence against person or property, does create some sense of fear and insecurity in some section of the society and a definition of terrorism based upon the magnitude or potential of an effect created or intended to be created or having a potential of creating would necessarily require a premature, speculative and imaginary quantification of the effect so as to determine the nature of the act in order to decide about the jurisdiction of a criminal court to try such an act. That surely was an unsure test and the result of such a premature, speculative and presumptive test could vary from court to court and from Judge to Judge reminding a legal scholar of the Star Chamber and the early days of a Court of Equity in England where equity was said to vary with the size of the Chancellor’s foot. The new definition of ‘terrorism’ introduced through the amended section 6 of the Anti-Terrorism Act, 1997 as it stands today appears to be closer to the universally understood concept of terrorism besides being easier to understand and apply. The earlier emphasis on the speculative effect of the act has now given way to a clearly defined mens rea and actus reus. The amended clause (b) of subsection (1) of section 6 now specifies the ‘design’ and clause (c) of subsection (1) of section 6 earmarks the ‘purpose’ which should be the motivation for the act and the actus reus has been clearly mentioned in subsection (2) of section 6 and now it is only when the actus reus specified in subsection (2) of section 6 is accompanied by the requisite mens rea provided for in clause (b) or clause (c) of subsection (1) of section 6 that an action can be termed as ‘terrorism’. Thus, it is no longer the fear or insecurity actually created or intended to be created or likely to be created which would determine whether the action qualifies to be termed as terrorism or not but it is now the intent and motivation behind the action which would be determinative of the issue irrespective of the fact whether any fear and insecurity was Criminal Appeal No. 95 of 2019, etc. 57 actually created or not. After this amendment in section 6 an action can now be termed as terrorism if the use or threat of that action is designed to coerce and intimidate or overawe the Government or the public or a section of the public or community or sect, etc. or if such action is designed to create a sense of fear or insecurity in the society or the use or threat is made for the purpose of advancing a religious, sectarian or ethnic cause, etc. Now creating fear or insecurity in the society is not by itself terrorism unless the motive itself is to create fear or insecurity in the society and not when fear or insecurity is just a byproduct, a fallout or an unintended consequence of a private crime. In the last definition the focus was on the action and its result whereas in the present definition the emphasis appears to be on the motivation and objective and not on the result. Through this amendment the legislature seems to have finally appreciated that mere shock, horror, dread or disgust created or likely to be created in the society does not transform a private crime into terrorism but terrorism as an ‘ism’ is a totally different concept which denotes commission of a crime with the design or purpose of destabilizing the government, disturbing the society or hurting a section of the society with a view to achieve objectives which are essentially political, ideological or religious. This approach also appears to be in harmony with the emerging international perspective and perception about terrorism. The international perception is also becoming clearer on the point that a violent activity against civilians that has no political, ideological or religious aims is just an act of criminal delinquency, a felony, or simply an act of insanity unrelated to terrorism. This metamorphosis in the anti- terrorism law in our country has brought about a sea change in the whole concept as we have understood it in the past and it is, therefore, of paramount importance for all concerned to understand this conceptual modification and transformation in its true perspective. 16. For what has been discussed above it is concluded and declared that for an action or threat of action to be accepted as Criminal Appeal No. 95 of 2019, etc. 58 terrorism within the meanings of section 6 of the Anti-Terrorism Act, 1997 the action must fall in subsection (2) of section 6 of the said Act and the use or threat of such action must be designed to achieve any of the objectives specified in clause (b) of subsection (1) of section 6 of that Act or the use or threat of such action must be to achieve any of the purposes mentioned in clause (c) of subsection (1) of section 6 of that Act. It is clarified that any action constituting an offence, howsoever grave, shocking, brutal, gruesome or horrifying, does not qualify to be termed as terrorism if it is not committed with the design or purpose specified or mentioned in clauses (b) or (c) of subsection (1) of section 6 of the said Act. It is further clarified that the actions specified in subsection (2) of section 6 of that Act do not qualify to be labeled or characterized as terrorism if such actions are taken in furtherance of personal enmity or private vendetta. 17. Before parting with this judgment we may observe that the definition of ‘terrorism’ contained in section 6 of the Anti-Terrorism Act, 1997 as it stands at present is too wide and the same includes so many actions, designs and purposes which have no nexus with the generally recognized concept of what terrorism is. Apart from that including some other heinous offences in the Preamble and the Third Schedule to that Act for trial of such offences by an Anti- Terrorism Court when such other offences do not qualify to be included in the definition of terrorism puts an extra and unnecessary burden on such courts and causes delay in trial of actual cases of terrorism. It is, therefore, recommended that the Parliament may consider substituting the present definition of ‘terrorism’ by a more succinct definition bringing it in line with the international perspectives of that offence and focusing on violent activities aimed at achieving political, ideological or religious objectives. We further recommend that the Parliament may also consider suitably amending the Preamble to the Act and removing all those offences from the Third Schedule to the Act which offences have no nexus with the offence of terrorism. Criminal Appeal No. 95 of 2019, etc. 59 18. The office is directed to fix the captioned appeals for hearing before appropriate Benches of this Court for their decision in terms of the legal position declared through the present judgment. Chief Justice Judge Judge Judge Judge Judge Judge Announced in open Court at Islamabad on 30.10.2019. Chief Justice Islamabad 30.10.2019 Approved for reporting. Arif

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 Appeal No.97-L of 2016 & Criminal Petition No.465-L of 2014 (On appeal from the judgment dated 27.03.2014 passed by the Lahore High Court, Multan Bench in M.R. No.46 of 2009, Crl.A No.305 of 2008, Crl. Rev. No.95 of 2009 & Crl. PSLA No.20 of 2009). Bashir Ahmad Mst. Kaneez Fatima …Appellant(s) …Petitioner(s) VERSUS The State, etc. (In both cases) …Respondent(s) For the Appellant(s) : Malik Muhammad Saleem, ASC For the Petitioner(s) : Malik Muhammad Munsif Awan, ASC For the State : Mr. Mazhar Sher Awan, Additional Prosecutor General Date of Hearing : 07.05.2019 JUDGMENT Qazi Muhammad Amin Ahmed, J.- Criminal Appeal by Bashir Ahmad, convict and Criminal Petition for leave to appeal by Mst. Kaneez Fatima, sister of Talib Hussain deceased, arisen out of incident dated 29.5.2003, with a common thread are being decided through this singe judgment. 2. Prosecution case is structured upon statement of Ghulam Hussain, PW-2. According to him, on the fateful day his daughter Mst. Kaneez Mai was on her way to fetch grocery items when Naseer Bakhsh accused held her by hair, while his brother Ahmed dealt her club blow; upon receipt of information, the complainant with a pistol rushed to the spot; Naseer Bakhsh hit him with the club; the pistol felled, picked by Naseer Bakhsh accused. In the meantime, Talib Hussain deceased with.12 caliber gun is attracted to the spot. Rehmat Ali accused engaged the deceased with a hatchet blow on his right ear, later fell on the ground when Naseer Bakhsh, Ahmed Khan, Rehmat Ali, Bashir Crl.A.97-L of 2016 & Crl.P.465-L of 2014. 2 Ahmad and Muhammad Zaman caused injuries; the deceased succumbed to the injuries at the spot. Manhandling of Mst. Kaneez Mai, PW by Naseer Bakhsh is cited as motive for the crime. Dissatisfied with police investigation, the complainant preferred to prosecute the accused through a private complaint; he blamed that crime report was not faithfully recorded by the investigating officer, otherwise biased in favour of the accused. Indictment resulted into conviction vide judgment dated 18.12.2008. For homicide, the appellant was sentenced to death besides being held in the community of intention qua the injuries suffered by the witnesses. Naseer Bakhsh, Muhammad Zaman and Ahmed Khan were convicted and sentenced for injuries to the witnesses. Appeal filed by the convict met with no better fate. A learned division bench of the Lahore High Court at Multan vide impugned judgment dated 27.3.2014 upheld the convictions albeit with alteration of death penalty into imprisonment for life; sentences awarded to the co-accused were reduced to already undergone by them. Petition for Special Leave to Appeal by the complainant was dismissed vide the same judgment; they are in contest once again before us. 3. Well orchestrated narrative by the witnesses that includes the injured, notwithstanding, we have noticed inherent shortcomings casting their shadow on the prosecution case. Naseer Bakhsh and Bashir Ahmad are real brothers, Ahmed Khan accused is former’s son. Muhammad Zaman and Rehmat Ali also hail from the same clan; the entire household is in the array and in this backdrop argument that it is a case of wider net is not entirely beside the mark. Similarly, a pistol and shotgun, admittedly with the deceased and the complainant, lend credence to hypothesis of aggression; renunciation of crime report by the complainant goes a long way to tremor the very basis of his case. Suppression of injuries of an opponent is yet another intriguing circumstance. While the complainant was well within the remit of law to pursue his case through a private complaint, nonetheless, non- examination of investigating officer alongside some other witnesses cannot be countenanced without exposing the accused to a grievous prejudice. Prosecution case is not free from doubt and Crl.A.97-L of 2016 & Crl.P.465-L of 2014. 3 thus it would be unsafe to maintain the conviction. Resultantly, Criminal Appeal is allowed, the impugned judgment is set aside. The appellant shall be at set at liberty forthwith, if not required in any other case. As a natural corollary criminal petition for leave to appeal is dismissed. These are the reasons of our short order of even date which is reproduced as under:- “For reasons to be recorded later, the instant criminal appeal is allowed. The conviction and sentence of the appellant Bashir Ahmad is set aside. He is acquitted of the charge framed against him. The appellant is present in person as he is on bail after suspension of his sentence by the learned High Court. Therefore, his sureties are ordered to be discharged. Criminal Petition No.465-L of 2014 filed for enhancement of sentence of respondents No.2-5 is dismissed.” JUDGE JUDGE Lahore, the 07th of May, 2019 Ghulam Raza/* JUDGE

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE EJAZ AFZAL KHAN MR. JUSTICE DOST MUHAMMAD KHAN MR. JUSTICE IJAZ UL AHSAN Criminal Appeal No.97/2017 (On appeal from the judgment dated 8.10.2013 passed by the Lahore High Court, Lahore in Crl.Appeal No.1141/2007 and M.R. No.444/07) Faisal …Appellant Versus The State ..Respondent For the appellant: Mr. Ansar Nawaz Mirza, ASC For the State: Ch. M. Sarwar Sidhu, Addl. P.G. Pb. Date of hearing: 5.12.2017 ORDER For the reasons to be recorded later, we partly allow this appeal, convert the sentence of life imprisonment of the appellant to the one already undergone, leaving intact the amount of compensation to be paid to the legal heirs of the deceased or in default to undergo six months S.I. Judge Judge Judge Islamabad, the 5th December, 2017 Nisar /-‘

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Maqbool Baqar Mr. Justice Qazi Muhammad Amin Ahmed Cr. M.A. No.130-K/2019 in Cr. Petition No.137-K/2019 and Criminal Petition No.137-K/2019 (For restoration - Against the judgment dated 30.04.2018 passed by the High Court of Sindh at Karachi in Crl. Appeal Nos.309 & 336 of 2913) Muhammad Imran …Petitioner(s) Versus The State …Respondent(s) For the Petitioner(s): Mr. Muhammad Ashraf Kazi, Sr.ASC For the State: Mr. Hussain Bukhsh Baloch, Additional Prosecutor General Sindh. Date of hearing: 20.03.2020. JUDGMENT Qazi Muhammad Amin Ahmed, J.- Cr.M.A. No.130-K/2019 in Cr.P. No.137-K/2019. For the reasons mentioned in the application, the same is allowed; main petition is restored to its original number. Criminal Petition No.137-K/2019. 2. Malik Safeer, 30, was stabbed to death on 16.8.2005 at 10:15 p.m. within the precincts of Police Headquarter Garden Karachi; incident was reported after midnight at 1:30 a.m. by his brother Malik Shahzada Khan (PW-2); he nominated Muhammad Imran, petitioner, along with Jahanzeb, Saleem Khadra, since acquitted, and Khalid Shah, P.O. As per complainant, a police constable, on the fateful night, he was sitting outside his home with his friend Fazal Abbas (PW-4) when Umar Daraz (PW-9) laid information about an ongoing brawl between the deceased and the accused, outside Darbar Peer Kunda; he rushed to the scene to find the deceased being stabbed by Muhammad Imran Cr. M.A. No.130-K/2019 in Cr. Petition No.137-K/2019 and Criminal Petition No.137-K/2019 2 within his view; the accused decamped from the venue and the deceased, in injured condition, shifted to the hospital, however, succumbed to the injuries on way. A dispute over a cell phone handset is cited as a motive for the crime. Autopsy conducted at 1:30 p.m. revealed three cavity deep stab wounds on both sides of the chest, with resultant cardiac failure without reference to durations. The accused, barring the P.O, were arrested on 17.8.2005; a bloodstained dagger/Churra was recovered upon disclosure of acquitted co-accused Saleem Khadra. Prosecution case is structured upon ocular account furnished by Malik Shahzada Khan (PW-2), Fazal Abbas (PW-4) and Umar Daraz (PW-9), confronted by the petitioner with the following plea:- “I am innocent. I have been falsely implicated in this case due to enmity as on the day of incident deceased and PW Riasat attacked on our house and injured my mother. In this respect uncle Jahanzaib reported at P.S. Nabi Bux vide rapat No.52 at 22:40 hours dt. 16.8.2005. I produce Roznamcha entry No.52 as Exh.26/A and ML certificate of my mother as Exh.26/b. The report was against deceased Malik Safeer and PW Riasat. Police had issued a letter in favour of my mother to visit hospital for treatment. Accordingly she went and examined. I produce police letter and hospital slip as Exh.26/C and 26/D. As a counter blast this FIR has been registered. The deceased was criminal person. There were so many criminal cases were registered at P.S Nabi Bux and Jamshed Quarter. I produce FIR No.58/2002 registered against deceased Malik Safeer & others, as Exh.26/E. He was criminal person and any other criminal person murdered him and the complainant falsely involved me in this case. I am innocent.” Unimpressed by the plea, the learned trial Judge returned a guilty verdict under clause (b) of section 302 read with section 34 of the Pakistan Penal Code, 1860 and sentenced the accused to imprisonment for life vide judgment dated 30.10.2018, upheld by a learned Judge-in- Chamber, qua the petitioner vide impugned judgment dated 30.04.2018, being impugned through Cr. Petition No.137-K of 2019, barred by delay of 353 days, condoned in the interest of justice. 3. Learned counsel for the petitioner contends that occurrence did not take place in the manner as alleged in the crime report lodged after considerable delay despite the police station, located close by; that presence of the witnesses appears to be extremely improbable as given their number, they could have easily apprehend the petitioner or intervene to rescue the deceased; that receipt of injuries by petitioner’s mother Ramseela Begum is established through official documents and Cr. M.A. No.130-K/2019 in Cr. Petition No.137-K/2019 and Criminal Petition No.137-K/2019 3 witnesses, a circumstance, suggestive of a different scenario, that escaped notice by the courts below; discrepant statements by the witnesses have been referred to conclude that prosecution had not been able to drive home the charge beyond reasonable doubt. The learned Law Officer has faithfully defended the impugned judgment. 4. Heard. Record perused. 5. Ocular account, prosecution’s mainstay, has been furnished by the witnesses, found by us out of tune with one another; Fazal Abbas (PW-4) has been silent about material details of the incident, otherwise succinctly related by the complainant whom the witness statedly accompanied to the venue. On the contrary, according to his statement, in examination-in-chief, the witness appears to have arrived at the scene after the deceased had already fallen. Umar Daraz (PW-9) is prosecution star witness; according to him, Khalid Shah and Jahanzeb, co-accused, held iron bars whereas the petitioner carried a Churri, a position that is not shared by the other witnesses; they are also discrepant on the manner and mode of their arrival at the crime scene; according to Umar Daraz PW, they reached the scene on a motorbike whereas remainder of the witnesses are reticent as to how they covered the distance; they is no unanimity amongst them on the passage, they took the deceased to the hospital. These contradictions, viewed in the retrospect of arrival of the witnesses exactly at a point of time when the petitioner started inflicting blows to the deceased with their inability to apprehend him without there being any weapon to keep them effectively at bay, cast shadows on the hypothesis of their presence during the fateful moments. It was an odd hour of night without any source of light as admitted by no other than Fazal Abbas (PW-4) himself. Petitioner’s mother Mst. Ramseela was medically examined under a police docket at 10:30 p.m. on 17.8.2015; she was noted with an incised wound on the palmer aspect of her right hand; wound though not extensive, nonetheless, suggests a happening incompatible with the case set up in the crime report, a possibility further strengthened by a Rapat of even date incorporated in the daily diary at the same police station. Despite defence’s inaptitude to clearly put-forth its case, a different story is spelt out from prosecution’s own case. Argument that occurrence did not take place in the manner as alleged by the witnesses does not appear to be unrealistic. Co-accused, blamed to have clutched the deceased to facilitate the petitioner have since been acquitted on the same evidence without reproach. Recovery Cr. M.A. No.130-K/2019 in Cr. Petition No.137-K/2019 and Criminal Petition No.137-K/2019 4 of Churra/dagger from inside Darbar, that too, upon the disclosure of a co-accused, fails to inspire confidence so as to be received as independent corroboration. It is by now well settled that benefit of a single circumstance, deducible from the record, intriguing upon the integrity of prosecution case, is to be extended to the accused without reservation; the case is fraught with many. It would be unsafe to maintain the conviction. Criminal Petition is converted into appeal and allowed. The appellant is acquitted from the charge; he shall be released forthwith, if not required to be detained in any other case. Judge Judge Karachi, the 20th March, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmed Malik Mr. Justice Sajjad Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Cr. Misc. Application No.1404 of 2019 in Cr. Review NIL of 2019 In Cr. Appeal No.23 of 2006 (Permission to file and argue the review petition) Raja Farhat Iqbal …Applicant Versus The State …Respondent For the Applicant: In person (assisted by Mr. Ghulam Sajjad Gopang, ASC, with permission of the Court) For the State: N.R. Date of hearing: 15.10.2019. ORDER Qazi Muhammad Amin Ahmed, J. Raja Farhat Iqbal, applicant herein, accused in a case of homicide, was acquitted by the trial Court; High Court of Sindh, however, reversed the findings and while returning a guilty verdict, sentenced him to imprisonment for life, vide judgment dated 28.12.2005, vires whereof were challenged through an appeal; the complainant dissatisfied with the quantum of sentence came up with a petition for enhancement of sentence, however, without success. It was on 25-3-2009 when applicant’s learned counsel opted to withdraw the appeal, consequently dismissed; his subsequent attempt to seek a review of dismissal of his appeal failed on 12.3.2019; his failures, notwithstanding, he was released on parole way back on 24.1.2015 and it was one of the reasons that weighed with the Court to decline the review. The applicant has approached in person once again and was joined by Mr. Ghulam Sajjad Gopang, ASC during the proceedings; they are aggrieved by the office refusal to entertain their application on the Cr. M.A. No.1404 of 2019 2 ground that after dismissal of earlier review petition, there was no occasion to entertain the request and it is in this backdrop that the present application (Cr.M.A. No.1404 of 2019) has been posted before us. 2. Dismissal of review petition foreclosed avenues for subsequent attempts by the applicant and for that law is well settled by now. The applicant cannot escape the consequences of course adopted by his duly engaged counsel merely on the ground that he had not so instructed him, that too so late in the day. Being hopelessly misconceived, the instant application is dismissed. Judge Judge Judge Islamabad, the 15th October, 2019 Azmat/-

4a1 IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE LIAZ IlL AHSAN MR. JUSTICE MUNIB AKHTAR MR. JUSTICE SAYYED MAZAHAR ALl AKBAR NAQVI A CRIMINAL MISCELLANEOUS APPLICATION NO.1581 OF 2021 IN/AND CRIMINAL APPEAL NO.193 OF 2020 AND CRIMINAL APPEALS NO.194 AND 195 OF 2020 (Compromise) (Against the judgment dated 20.06.2018 passed by the High CourtS)h4 Sukkur Bench in Criminal Appeal Nos. 0-36/2011, 0-132/2017, D- 133/2017) 1. Muneer Malik and Nadeem Ahmed In CrI.M.A.1581/2021 Vs. The State through P.C. Sindh & Crl.A.193/2020 2. Munir Malik Vs. The State through In Cri.A.194/2020 P.G. Sindh 3. Nadeern Ahmed Vs. The State In Crl.A.195/2020 through P.C. Sindh For the Applicant(s)/ Barrister Umer Aslam, ASC Appellant(s): Raja Muhammad Rizwan Satti, ASC Ch. Akhtar Au, AOR (In all cases) For the State: Mr. Zafar Ahmed Khan, Addl. P.C. Sindh Date of Hearing: 11.05.2022 JUDGMENT SAYVED MAZAHAR ALl AKBAR NAQVI. J.- Appellants Muneer Ahmed @ Muneer Malik and Nadeem Ahmed along with two co-accused (who were declared proclaimed absconders and were tried in absentia) were tried by the Anti Terrorism Court, Khairpur Mirs, pursuant to case registered vide Crime Nos. 35/2007, 37/2007 & 38/2007 under Sections 302/324/34 PPC read with Section 7 of the Anti Terrorism Act, 1997 and 13(e) of the Arms Ordinance for committing murder of Bashir Ahmed and Chiraguddin, CRL. MISC. APPLICATION NO. 1581 OF 2021 IN/AND CRL. APPEAL NO. 193 OF 2020 -. 2 AND CRL. APPEALS NO. 194 AND 195 OF 2020 father and cousin of the complainant and for causing injuries to Muneer Ahmed and Khalil Rehman, brother and cousin of the complainant. 2. The facts of the case as given in the complaint lodged by the complainant are as under:- "Complaint is that lam driver of Tractor. Yesterday at night time there arose exchange of some harsh words between us and Muhammad Amin Malik and others over the issue of children, on that Muhammad Amin Malik and others said that they will see us. Today at morning time I and my deceased father Bashir Ahmed, brother Munir Ahmed and cousin Khalil Rehman, after completing the work at land, were going back, when we reached at bus stop Behlani, there at about 2.15 hours of noon, my deceased cousin Chiraghuddin son of Chulam Muhammad also joined us. There we found acused. They were Muhammad Amin son of Muhammad Ashraf Malik, who was having MP-5 rifle in his hand, (2) Munir Ahmed son of Muhammad Ashraf Malik who was having Kalashnikov in his hand, (3) Nadeem son of Muhammad Ashraf Malik who was having T.T. pistol in his hand, (4) Bashir Ahmed son of Muhammad Ashraf who was having T.T. pistol in his hand. Soon after their arrival accused Muhammad Amin malik said that today we will not be spared. After saying so, accused Muhammad Amin Malik made direct fires with his rifle upon Chiraguddin with intention to commit his murder. Those fires hit him at his chest, on that he raised cries and fell down on the ground. Accused Munir Ahmed Malik fired burst of Kalashnikov upon my father Bashir Ahmed who also raised cries and fell down on the ground. Accused Nadeem, Muhammad Amin, Munir Ahmed and Bashir Ahmed fired with their respective weapons upon my brother Munir Ahmed and cousin Khalil lehman with intention to commit their murder. They by raising cries fell down on the ground. Then land above said injured raised cries, on our cries and fire shot reports Umerdin Shaikh, Abdul Sattar Shaikh, Nawab Shaikh, Ashiq Ali Shaikh and other co-villagers came from hotel and shops. They also saw the accused persons making fires. Then all the four accused making fires went away to their houses by raising slogans. We and all the witnesses found that my father Bashir Ahmed and cousin Chiraguddin had died after sustaining fire shot injuries. My brother Munir Ahmed and cousin Khalil Rehman were found lying in injured condition. We brought the injured at Behlani Hospital for immediate treatment. I left the witnesses over the dead bodies of both the deceased for security purpose and then myself proceeded there from. Now I have appeared and state that above named accused on account of their annoyance over issue of children in furtherance of their common intention have committed murder of my father Bashir Ahmed and cousin Chiraguddin and have caused injuries to my brother Munir Ahmed and cousin Khalil Rehman." 3. The learned Trial Court vide its judgment dated 02.04.2011 convicted the appellants as under:- CRL. MISC. APPLICATION NO. 1581 OF 2021 IN/AND CRL. APPEAL NO. 193 OF 2020 -. 3 AND CRL. APPEALS NO. 194 AND 195 OF 2020 (i) Under Section 302/34 PPC Convicted and sentenced to suffer rigorous imprisonment for life for two times with payment of compensation amounting to Rs.200000/- each to be paid to the legal heirs of both deceased or in default whereof to further suffer RI for a period of six months each. (ii) Under Sections 324/34 PPC Convicted and sentenced to suffer RI for a period of seven years and also to pay a fine of Rs.10,000/- each or in default thereof to further undergo SI for two months more. (iii) Under Section 7 of the ATA, 1997 To suffer rigorous imprisonment for life for two times and to pay fine of Rs.200,000/- each or in default thereof to further undergo RI for one year. (iv) Under Section 13(e) of the Arms Ordinance To suffer RI for a period of seven years each and to pay a fine of Rs.5000/- each or in default whereof to further undergo SI for one month each. All the sentences were directed to run concurrently. Benefit of Section 382-B Cr.P.C. was also extended. 4. In appeal, the learned High Court of Sindh, vide its judgment dated 20.06.2018, maintained the conviction and sentences recorded by the learned Trial Court, Being aggrieved by the impugned judgment of the High Court, the appellants filed Criminal Petition Nos. 877, 878 & 879/2018 wherein leave was granted and Criminal Appeal Nos. 193, 194 & 195/2020 have arisen out of the same. During the pendency of these appeals, Criminal Miscellaneous Application No. 1581/2021 was filed for acquittal of the appellants on the ground that the parties have entered into compromise and as such the legal heirs of the deceased have pardoned the appellants in the name of Allah Almighty. This Court vide order dated 07.12.2021 sought report from the learned Sessions Judge, Nowshero Feroz, to ascertain the factum of compromise between the legal heirs of the deceased along with the injured witnesses in order to verify the genuineness of the compromise as claimed by the appellants. The Sessions Judge was also directed to confirm as to whether the deceased is survived by any minor legal heir and, if so, whether the CRL. MISC, APPLICATION NO. 1581 OF 2021 IN/AND CRL. APPEAL NO. 193 OF 2WU -. 4 AND CRL. APPEALS NO. 194 AND 195 OF 2020 interest of the minors has been fully secured and safeguarded. The report has since been received, which shows that the deceased Bashir Ahmed was survived by three sons and four daughters including one minor daughter whereas the deceased Chiraguddin was survived by a widow, three sons including a minor son aged 16 years and two daughters including a minor daughter aged 14 years. The report states that a compromise has been affected between the parties and the same has been made voluntarily without any duress or coercion. The legal heirs of the deceased have forgiven the appellants in the name of Allah Almighty and have waived their right of Qisas and Diyat and they do not want to receive any Badl-e-Sulah or compensation. So far as the interest of three minors is concerned, a land measuring 00-39 '/z ghuntas out of Survey Nos. 62 and 65 situated in Deh Behlani has been transferred in the name of the three minors. However, since the market value of the land was around Rs.800,000/- to 10,00,000/- whereas the diyat share amount of minor legal heirs was Rs.18,24,328.39/-, therefore, a notice was issued to the appellants to deposit the amount of the minors as per their due share. In response to the notice, the requisite amount has been deposited with the Accountant of the Sessions Court. In this view of the matter, the interest of the minors has been safeguarded. The injured witnesses have also confirmed the factum of compromise with the appellants and extended no objection if the appellants are acquitted on the basis of such compromise. S. During the course of proceedings before this Court, learned counsel for the appellants contended that the occurrence has taken place over a petty issue arising out of quarrel between children, which has taken place in open land and as the same is the outcome of personal vendetta, therefore, provision of Section 7 of the Anti Terrorism Act is not applicable in the present case. Contends that so far as the remaining conviction and sentences under the provisions of 302/324/34 PPC is concerned, the legal heirs of both the deceased along with the injured witnesses have affected a compromise and have settled the matter, as such, the appellants deserve to be acquitted of I CRL. MISC. APPLICATION NO. 1581 OF 2021 IN/AND CRL. APPEAL NO. 193 OF 2020 -. 5 AND CRL. APPEALS NO. 194 AND 195 OF 2020 the charge. Contends that so far as the conviction of the appellants under Section 13(e) of the Arms Ordinance is concerned, the recovery was affected from open place, which is otherwise joint one, such recovery is inadmissible in nature, hence, it is totally artificial, doubtful and flimsy and is liable to be set aside. 6. On the other hand, learned Law Officer contended that no doubt the compromise has been affected between the parties but fear and insecurity was sensed by the members of the society due to the act of the appellants, therefore, the appellants were rightly convicted under Section 7 of the Anti Terrorism Act, which cannot be compounded. 7. We have heard learned counsel for the parties and gone through the record. There are two aspects of the case, which need our consideration: (i) whether compromise in the substantive offence i.e. Sections 302/324/34 'PC is genuine, and (ii) whether Section 7 of the Anti Terrorism Act was applicable in the instant case. As far as the first aspect of the case is concerned, there is no denial to this fact that the compromise between the legal heirs of both the deceased along with injured witnesses has been affected, which fact is reported to be genuine by the learned Sessions Judge while making his report dated 12.01.2022. So far as the Interest of three minors is concerned, a land measuring 00- 39 'A ghuntas out of Survey Nos. 62 and 65 situated in Deh Behlani has been transferred in the name of the three minors. However, since the market value of the land was around Rs.800,000/- to 10,00,000/- while the diyat share amount of minor legal heirs was Rs.18,24,328.39/-, therefore, pursuant to a notice issued to the appellants to deposit the amount of the minors as per their due share, the requisite amount has been deposited with the Accountant of the Sessions Court. Therefore, the interest of the minors has been safeguarded. Hence, it can safely be said that the compromise between the parties is genuine. So far as the question as to whether the provision of Section 7 of the Anti Terrorism Act CRL. MISC. APPLICATION NO. 1581 OF 2021 IN/AND CRL. APPEAL NO. 193 OF 2020 -. 5 AND CRU. APPEALS NO. 194 AND 195 OF 2020 is applicable in the given circumstances, the perusal of record clearly reflects that the occurrence took place over scuffle between the children and the appellants had no specific motive to create terror or insecurity among the society coupled with the fact that it was not pre-meditated rather ultimately resulted into the instant occurrence. In Ghulam Hussain Vs. The State (PLD 2020 SC 61), a five members' bench of this Court has categorically held as under:- "Thus, it is no longer the fear or insecurity actually created or intended to be created or likely to be created which would determine whether the action qualifies to be termed as terrorism or not but it is now the intent and motivation behind the action which would be determinative of the issue irrespective of the fact whether any fear and insecurity was actually created or not. After this amendment in section 6 an action can now be termed as terrorism if the use or threat of that action is desi gned to coerce and intimidate or overawe the Government or the public or a section of the public or community or sect, etc. or if such action is desi gned to create a sense of fear or insecurity in the society or the use or threat is made for the purpose of advancin g a religious, sectarian or ethnic cause. etc. Now creating fear or insecurity in the society is not by itself terrorism unless the motive itself is to create fear or insecurity in the society and not when fear or insecurity is ust a byp roduct, a fallout or an unintended consequence of a private crime." (Underlined to lay emphasis) 8. In Muhammad Akram Vs. The State (2022 SCMR 18), the accused murdered his wife (who was accused of theft in a criminal case) under the impulses of 'ghairat' while she was being taken to Court in a police vehicle. He was subsequently convicted under Section 302(b) PPC read with Section 7 of the Anti Terrorism Act and was sentenced to imprisonment for life. During the pendency of his appeal before this Court, the parties compromised. This Court while setting aside the conviction of the accused under Section 7 of the Anti Terrorism Act by holding that he committed murder due to a very specific reason of 'ghairat', which cannot be termed as terrorism, accepted the compromise and acquitted him of the charge of murder, In Faroog Ahmed Vs. The State (2020 SCMR 78), the accused had committed murder of a person in the premises of Sessions CRL. MISC. APPLICATION NO.1581 OF 2021 IN/AND CRL. APPEAL NO. 193 OF 2020 -. 7 AND 0Th. APPEALS NO. 194 AND 195 OF 2020 Court due to previous enmity and was convicted and sentenced under Section 302(b) PPC read with Section 7 of the Anti Terrorism Act to death. However, during the pendency of his appeal before this Court, the parties entered into a compromise and this Court while accepting the compromise under Section 302 PPC, set aside the conviction and sentence of the accused under Section 7 of the Anti Terrorism Act on the ground that murder was committed due to personal act and the accused/convict did not want to create fear, insecurity or terror in the society. The same was the case in Dilawar Mehmood Vs. The State (2018 SCMR 593) wherein the murder was committed in a cattle market due to previous enmity. The accused was convicted and sentenced to death by the Trial Court under Section 302(b) PPC read with Section 7 of the Anti Terrorism Act, which was reduced to imprisonment for life by the High Court. During the pendency of the jail petition filed by the accused before this Court, the parties entered into a compromise and compounded the offence under Section 302(b) PPC. So far as the conviction and sentence of the accused under Section 7(a) of the Anti Terrorism Act is concerned, this Court set aside the same on the ground that the occurrence was the result of previous enmity between the parties, therefore, there was no element of terrorism. In view of the facts and circumstances narrated above, we are of the view that the provision of Section 7 of the Anti Terrorism Act is not attracted in the present case as the occurrence was the result of personal vendetta, therefore, the conviction and sentence recorded under Section 7 of the Anti Terrorism Act is set aside, So far as the conviction of the appellants under Section 13(e) of the Arms Ordinance is concerned, we have noted that recovery memo and site plan reveal that on 27.05.2007 accused persons while in Police custody jointly led to the recovery of weapons of offence i.e. one Kalashinikov and a T.T. Pistol from a fish pond of one Muhammad Hanif Malik, which in all eventualities is an open place. Nothing has been mentioned as to which of the appellant had first led to the recovery or pointed out the place of recovery and in absence of the same, joint recovery of weapons of offence is of no evidentiary value. Furthermore, the record shows that eight empties of Kalashnikov and six CRL. MISC. APPLICATION NO. 1581 0F2021 IN/AND CRL. APPEAL NO. 193 0F2020 -. 8-- AND CRL, APPEALS NO. 194 AND 195 OF 2020 empties of T.T. pistol were recovered from the scene of occurrence on the same day i.e. 17.052007 through recovery memo but the said crime empties were neither kept in safe custody nor sent to Chemical Examiner immediately after recovery. The weapons of offence and the crime empties were jointly sent to the office of Chemical Examiner after a delay of more than two months i.e. on 13.07.2007 for which no plausible explanation has been given by the prosecution. In these circumstances, the recoveries are inadmissible in evidence and cannot be relied upon to sustain conviction of the appellants. We, therefore, set aside the conviction of the appellants under Section 13(e) of the Arms Ordinance. 9. For what has been discussed above, Criminal Miscellaneous Applications No. 1581/2021 and Criminal Appeal Nos. 193, 194 & 195/2020 are allowed and the impugned judgment is set aside. The appellants are acquitted of the charge of murders and of causing injuries to injured witnesses. They shall be released from jail forthwith unless detained/required in any other case. Islamabad, the 11 t May, 222 Na(Approvd1 Vor Reporting

Criminal M.A. Nos. 1591 to 1594, 1663, 1733 & 1734/2020 in Cr. R.P Nos. Nil/2020 and Cr.O.P. No. 57/2015 1 Faial Arab, J.- In all these connected review petitions, the petitioners seek review of the judgment dated 04.05.2018, authored by Ejaz Afzal Khan, J, as he then was, myself concurring with it and my learned brother Maqbool Baqar, J. dissenting. Aggrieved by such judgment the main party to the proceedings, the Bahria Town (Pvt.) Limited exercised its option by filing Review Petition which was dismissed on merits by a five member larger bench of this Court on 04.12.2018, and thus the judgment dated 04.05.2018 attained finality. 2. The present review petitioners were neither party in the main case nor stake any claim in the property which was subject matter of the main case. They also do not claim any right on the land which is in occupation of Bahria Town (Pvt.) Limited. They are seeking review of the judgment dated 04.05.2018 only for the reason that the question of law decided in the said judgment by this Court be declared not to be binding on the revenue authorities in case any action on the basis of the law laid down in the said judgment is initiated with regard to their properties. 3. Today, the counsel for the present review petitioners were heard on the maintainability of their review petitions. After the hearing, the order which my learned brother Maqbool Baqar, J. has proposed to pass, states that what has been decided in the judgment dated 04.05.2018, passed in the main case shall not come in the way of present review petitioners in case any action in relation to their properties on the basis of such decision is contemplated or initiated by the revenue authorities. The proposed order of my learned brother, in my humble view, would then mean Criminal M.A. Nos. 1591 to 1594, 1663, 1733 & 1734/2020 in Cr. R.P Nos. Nil/2020 and Cr.O.P. No. 57/2015 2 that the law laid down by this Court in the said judgment is not a good law and therefore, does not carry its binding effect. I respectfully do not agree with the same for the following reasons. 4. When this Court decides a question of law or its decision is based upon a principle of law, the same is binding on all courts in Pakistan by virtue of Article 189 of the Constitution. If the law laid down in judgment dated 04.05.2018 passed in this case is made ineffective on the basis what has been pleaded in the review petitions, it would amount to nullifying the mandate of Article 189 of the Constitution. This in turn would also amount to replacing the majority judgment with the minority judgment. 5. The whole intent of Article 189 of the Constitution is to curb future litigation on any question of law or a principle of law that has been laid down by this Court and all present and future controversies are to be decided accordingly as long as it is a good law. Hence, until the question of law decided by this Court in the judgment dated 04.05.2018 is revisited by a larger bench of this Court in some other case, all authorities would be bound to abide by the same. Hence, the entire basis for seeking review of the judgment dated 04.05.2018 is extraneous to the jurisprudence of this country and therefore, all these connected review petitions are not maintainable and are summarily dismissed. JUDGE 26th of October, 2020 Criminal M.A. Nos. 1591 to 1594, 1663, 1733 & 1734/2020 in Cr. R.P Nos. Nil/2020 and Cr.O.P. No. 57/2015 3 ORDER OF THE COURT By majority of two to one (Maqbool Baqar, J dissenting), all these review petitions are dismissed. JUDGE JUDGE JUDGE Islamabad, the 26th of October, 2020 Not Approved For Reporting

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 MISC. APPLICATION NO. 1659 OF 2019 & CRIMINAL PETITION NOS. 509 & 510 OF 2020 (Against the order dated 07.08.2019 passed by High Court of Sindh, At Karachi in Criminal Accountability Appeal No.56/2018 and No.57/2018) Utility Store Corporation of Pakistan through its Managing Director Islamabad (in Crl.MA .No.1659/19) Chairman NAB through PG NAB Islamabad (in Crl.P.No.509-510/20) … Petitioner(s) Versus The State and another … (in Crl.MA .No.1659/19) Masood Alam Niazi (respondent No.03) (in Crl.P.No.509/2020) Zia Ulla Khan Warsi (respondent No.04) (in Crl.P.No.510/2020) Respondent(s) For the Petitioner/Appellant : Mr. Aftab Alam Yasir, ASC (In Crl.MA No.1659/2019) For the State : Mr. Nasir Mehmood Mughal, Special Prosecutor NAB (In Crl.P.No.509-510/20) For the Respondent(s) Mr. Muhammad Munir Paracha, ASC on behalf of the respondent No.03 (In Crl.MA.No.1659/19) Mr. Muhammad Akram Gondal ASC on behalf of the respondent No.04 (In Crl.MA.No.1659/19) Mr. Muhammad Munir Paracha ASC on behalf of the respondent No.01 (In Crl.P.No.509/20) Mr. Muhammad Akram Gondal, ASC on behalf of the respondent No.01 (In Crl.P.No. 510/20) Date of Hearing : 24.11.2020 CRIMINAL MISC. APPLICATION NO. 1659 OF 2019 & CRIMINAL PETITION NOS. 509 & 510 OF 2020 2 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Criminal M.A. No. 1659 of 2019 This is an application filed by Utility Stores Corporation of Pakistan seeking permission to file Criminal Petition against the impugned judgment of the High Court dated 07.08.2019. At the very outset, we have asked learned counsel for the applicant as to how this application is maintainable in view of the specific bar contained in Section 32(a) of the National Accountability Ordinance, 1999, to which he could not give any plausible reason. Section 32(a) clearly mandates as under: “any person convicted or the Prosecutor General Accountability, if so directed by the Chairman NAB, aggrieved by the final judgment and order of the Court under this Ordinance may, within ten days of the final judgment and order of the Court prefer an appeal to the High Court of the Province where the Court is situated”. Provided that no appeal shall lie against any interlocutory order of the Court.” 2. The said Section also came under consideration by this Court in a case reported as Syed Masroor Shah etc Vs. The State (PLD 2005 SC 173) and in para 3, it has been held as follows:- “The words “any person convicted or the Prosecutor General Accountability if so directed by NAB” as employed in clause (a) of section 32 of the NAB Ordinance, 1999 are to be interpreted in the ordinary dictionary meaning that “any person” means “a person convicted for any offence under the NAB Ordinance, 1999 or the Prosecutor General NAB”. By no stretch of imagination in view of the language as used in section 32 of the NAB Ordinance, 1999, right of appeal can be conferred to anyone else except as mentioned in the section itself.” 2. For what has been discussed above, this application is dismissed being not maintainable. CRIMINAL MISC. APPLICATION NO. 1659 OF 2019 & CRIMINAL PETITION NOS. 509 & 510 OF 2020 3 Criminal Petition Nos. 509 & 510 of 2020 3. The respondents Masood Alam Niazi and Ziaullah Khan Warsi, employees of Utility Stores Corporation, were tried by the Accountability Court No. III, Karachi on the charges of corruption and corrupt practices qua the embezzlement to the tune of Rs.19,236,702/- by such causing loss to the exchequer of the Government. The learned Trial Court vide its judgment dated 11.10.2018 found the respondents guilty of Section 9 of National Accountability Ordinance, 1999, as a consequence they were convicted under Section 10 of the NAB Ordinance, 1999. The respondent Masood Alam Niazi was sentenced to suffer RI for 5 years whereas respondent Ziaullah Khan Warsi was sentenced to suffer RI for 7 years and to pay a fine of Rs.62,92,151/- or in default whereof to further suffer RI for one year. Both the respondents were also disqualified for holding any public office for a period of 10 years. They were also given the benefit of Section 382-B Cr.P.C. The Appellate Court while adjudicating the matter before it, found that the evidence available on record is not sufficient to maintain conviction recorded by the learned Trial Court and while extending benefit of doubt, acquitted the respondents, hence these petitions seeking leave to appeal. 4. Briefly stated the facts of the case are that on a complaint received against the respondents, an investigation was conducted by NAB. It was found that respondent Masood Alam Niazi has misused his authority by illegally making payment of Rs. 19,236,702/- into the account of respondent Ziaullah Khan Warsi, Accounts Clerk, who was deputed as incharge for lifting of sugar from Pipri Godown of Trading Corporation of Pakistan on account of labour charges, which had already been paid by Trading Corporation to the handling agent. Charge was framed against the respondents vide order dated 25.11.2016 by the Accountability Court, which was denied by them, hence, claimed trial. The prosecution CRIMINAL MISC. APPLICATION NO. 1659 OF 2019 & CRIMINAL PETITION NOS. 509 & 510 OF 2020 4 produced as many as 8 witnesses. The respondents on 26.02.2018 while recording their statements under Section 342 Cr.P.C denied the allegations leveled against them on the ground that none of the prosecution witnesses had made any statement against them, which could substantiate the allegations. However, respondent Ziaullah Khan Warsi added that the only statement, which is incriminating against him is the statement of the Investigating Officer. 5. Learned Special Prosecutor NAB inter alia contended that the learned High Court has passed the impugned judgment in a stereo style fashion without adverting to the real facts and circumstances; that it is a glaring example of misreading and non-reading of the evidence; that the learned High Court has given artificial reasonings, which is squarely hit by material irregularity and illegality and as such the impugned judgment of acquittal is not sustainable in the interest of safe administration of criminal justice; that there are statements of 8 witnesses coupled with documentary evidence, which clearly reflect that the finding given by the learned Trial Court was fully justified, which has been discarded by the learned High Court on flimsy grounds. Lastly contends that the impugned judgment is passed while ignoring established principles of appreciation of evidence, hence, interference by this Court would be well within the dictates of justice. 6. On the other hand, learned counsel for the respondents supported the impugned judgment. It has been contended by the learned counsel that neither oral or documentary evidence incriminating in nature was brought on the record to substantiate the allegations against the respondents; that there is no direct evidence available on the record connecting the respondents with the commission of crime; that the disputed amount was paid to the transporters through cheques; that respondent Masood Alam Niazi is neither a signatory of any cheque nor CRIMINAL MISC. APPLICATION NO. 1659 OF 2019 & CRIMINAL PETITION NOS. 509 & 510 OF 2020 5 has any connection with the issuance of cheques; that most of the cheques were signed by Kamal Mustafa and Muhammad Saeed but they were not involved in the case. 7. We have heard learned Special Prosecutor, NAB, as also learned counsel for the respondents and have gone through the record. 8. The learned High Court while acquitting the respondents has mainly observed that none of the prosecution witnesses have implicated the respondents with the allegation of misappropriation or embezzlement of amount; that the payments were made through cheques to the handling agents towards labour charges for loading and unloading and this position has been admitted in evidence by the prosecution witnesses; that the Investigating Officer had recorded statements of handling agents/transporters during investigation but none of them were examined during trial except Asad Ilyas, PW-4, who was doing job in a private company which was subsidiary of M/s International Equipment Corporation, Karachi to handle sugar from Port including transportation to Trading Corporation of Pakistan’s nominee from Pipri Godown through delivery order. This witness has admitted in cross-examination that they did not make any demand of labour charges from Trading Corporation of Pakistan. It was also observed that no money trail has been sorted out and no evidence of whatsoever nature has been brought on record to show that the respondents were the beneficiaries and that nothing was brought on record to show that Trading Corporation had also made payment to the handling agents. The fact that no payment was made by Trading Corporation to the handling agents was also admitted by the Special Prosecutor NAB in the High Court. The High Court also mentioned about the letter written by the Trading Corporation of Pakistan to Utility Stores Corporation regarding arrangement of labour for loading of sugar bags into trucks and its transportation by the Utility Stores Corporation. CRIMINAL MISC. APPLICATION NO. 1659 OF 2019 & CRIMINAL PETITION NOS. 509 & 510 OF 2020 6 The question of payment of labour charges to handling agents does not constitute an offence by means of corruption and corrupt practices but mere a procedural irregularity. The judgments of this Court reported as The State Vs. Anwar Saif Ullah Khan (PLD 2016 SC 276), Mansoorul Haq Vs. Government of Pakistan (PLD 2008 SC 166) and Khan Asfandyar Wali Vs. Federation of Pakistan (PLD 2001 SC 607) were also quoted to hold that the prosecution is never absolved from proving the charge beyond reasonable doubt and the burden shifts to the accused only when the prosecution succeeds in establishing the presumption of guilt. 9. This Court in the case of Ghulam Sikandar Vs. Mamaraz Khan (PLD 1985 SC 11) while hearing appeal against acquittal has held as follows: “……………that the acquittal carries with it the two well- accepted presumptions : One initial, that, till found guilty, the accused is innocent ; and two that again after the trial a court below confirmed the assumption of innocence. The acquittal will not carry the second presumption and will also thus lose the first one if on points having conclusive effect on the end result the Court below : (a) disregarded material evidence ; (b) misread such evidence ; (c) received such evidence illegally. …………………………………………………….. The Court would not interfere with acquittal merely because on re-appraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If, however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusive and irresistible conclusion ; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualised in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous.” 10. The Indian Supreme Court in a case reported as Sadhu Saran Singh Vs. State of U.P (AIR 2016 SC 1160) while discussing the issue of appeal against acquittal held as follows:- “18. Generally, an appeal against acquittal has always been altogether on a different pedestal from that of an appeal against conviction. In an appeal against acquittal where the presumption CRIMINAL MISC. APPLICATION NO. 1659 OF 2019 & CRIMINAL PETITION NOS. 509 & 510 OF 2020 7 of innocence in favour of the accused is reinforced, the appellate Court would interfere with the order of acquittal only when there is perversity of fact and law. However, we believe that the paramount consideration of the Court is to do substantial justice and avoid miscarriage of justice which can arise by acquitting the accused who is guilty of an offence. A miscarriage of justice that may occur by the acquittal of the guilty is no less than from the conviction of an innocent. This Court, while enunciating the principles with regard to the scope of powers of the appellate Court in an appeal against acquittal, in the case of Sambasivan and Ors. v. State of Kerala (1998) 5 SCC 412, has held: The principles with regard to the scope of the powers of the appellate Court in an appeal against acquittal are well settled. The powers of the appellate Court in an appeal against acquittal are no less than in an appeal against conviction. But where on the basis of evidence on record two views are reasonably possible the appellate Court cannot substitute its view in the place of that of the trial Court. It is only when the approach of the trial Court in acquitting an accused is found to be clearly erroneous in its consideration of evidence on record and in deducing conclusions therefrom that the appellate Court can interfere with the order of acquittal.” 11. After perusing the impugned judgment of the High Court and the record of this case, we are of the considered view that the reasoning given by the High Court while acquitting the respondents is neither arbitrary nor perverse nor fanciful and the same does not call for any interference by this Court. These petitions having no merit are accordingly dismissed and leave is refused. 12. The above are the detailed reasons of our short order dated 24.11.2020 vide which all these cases were dismissed. JUDGE JUDGE JUDGE Islamabad 24th of November, 2020 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: Mr. Justice Asif Saeed Khan Khosa, CJ Mr. Justice Syed Mansoor Ali Shah Criminal Miscellaneous Application No. 183 of 2019 in Criminal Appeal No. 259 of 2018 Notice in compliance with the order dated 12.02.2019 passed in Criminal Appeal No. 259 of 2018 to Mr. Kanwar Anwaar Ali, Special Judicial Magistrate on account of dereliction of duty and lack of sufficient legal knowledge In attendance: Mr. Kanwar Anwaar Ali, Special Judicial Magistrate, in person. Mr. Ahmed Raza Gillani, Additional Prosecutor-General, Punjab Date of hearing: 22.02.2019 ORDER Asif Saeed Khan Khosa, CJ.: While disposing of Criminal Appeal No. 259 of 2018 (Asfand Yar Khan v The State, etc.) this Court had passed the following judgment on 12.02.2019: “Asfand Yar Khan appellant and some others had allegedly abducted one Adil Butt on 01.09.2009 for the purpose of extracting ransom and had later on done him to death and for commission of the said offences they were booked in case FIR No. 370 registered at Police Station Model Town, Lahore on 02.09.2009 for an offence under section 365-A, PPC. After a regular trial the appellant’s co-accused were acquitted of the charge by the trial court whereas the appellant was convicted and sentenced for offences under section 302(b), PPC read with section 34, PPC, section 347, PPC read with section 34, PPC and section 7(a) of the Anti-Terrorism Act, 1997. The appellant was, however, acquitted of the charge as far as the offences under sections 365-A and 201, PPC were concerned. For the offences of murder and terrorism the appellant was sentenced by the trial court to death on each such count. The appellant challenged his convictions and sentences before the High Court through an appeal which was partly allowed, the convictions and sentences of the appellant for the offences under section 347, PPC and section 7(a) of the Anti-Terrorism Act, 1997 were set aside, his conviction for the offence under section 302(b), PPC was upheld and his Criminal Miscellaneous Application No. 183 of 2019 in Criminal Appeal No. 259 of 2018 2 sentence of death for the offence of murder was reduced by the High Court to imprisonment for life. Hence, the present appeal by leave of this Court granted on 12.04.2018. 2. Leave to appeal had been granted in this case in order to reappraise the evidence and with the assistance of the learned counsel for the parties we have undertaken that exercise. 3. The case in hand is a case of an alleged abduction for ransom and murder and admittedly the case hinges upon some pieces of circumstantial evidence. It is not denied that nobody had seen the appellant forcibly or deceitfully abducting Adil Butt deceased, no demand of ransom was attributed to the appellant or any connection of the appellant with such demand was established, no ransom was paid to the appellant or to anybody else for release of Adil Butt and the murder of Adil Butt had not been seen by anybody. The prosecution had produced Tabassum Saeed (PW6) and Mian Muhammad Yasin (PW7) so as to establish that they had seen the appellant and his co-accused in the company of Adil Butt deceased late in the evening on 01.09.2009 but we have found that the said piece of evidence produced by the above mentioned witnesses suffered from lack of proximity between death and last-seen. The said witnesses had claimed to have seen the deceased in the company of the appellant and his co-accused on 01.09.2009 but the medical evidence brought on the record showed that Adil Butt had died some time between 02.09.2009 and 05.09.2009 and, thus, the all-important consideration of proximity was not available in this case so as to make the last-seen evidence worth any serious consideration. Apart from that the above mentioned witnesses were chance witnesses and the stated reason for their availability at the relevant spot at the relevant time had not been established through any independent evidence. The next piece of circumstantial evidence relied upon by the prosecution was the statement of Sanaullah (PW15) who had allegedly seen the appellant and another throwing a sack in a canal on 07.09.2009 but the medical evidence did not support that stance of PW15 inasmuch as according to the medical evidence Adil Butt deceased lost his life latest by 05.09.2009 and, thus, throwing away of a sack by an appellant and another in a canal on 07.09.2009 could not positively establish that it were the appellant and another who had done the deceased to death themselves and all that it could show was that some effort was made by the appellant and another to make the deadbody disappear. Such action attributed to the appellant and another attracted an offence under section 201, PPC but admittedly the appellant had been acquitted of the said charge framed against him. The prosecution had claimed that the deadbody of the deceased had been recovered from a canal and admittedly such recovery of the deadbody had not been brought about at the instance of the appellant. It was maintained by the prosecution that two days prior to recovery of the deadbody the appellant had pointed out the place where he had thrown the deadbody in a canal. Such pointing out of the place of throwing of the deadbody attributed to the appellant could not qualify as evidence or confession because during such pointing out no recovery of any incriminating article had taken place. The last-seen evidence provided by Tabassum Saeed (PW6) and Mian Muhammad Yasin (PW7) and the Waj-takkar evidence provided by Sana Ullah (PW15) showed that at the relevant time the said witnesses had not identified the persons who were seen last in the company of the deceased and even the persons throwing a sack in a canal had not been identified by the Waj-takkar witness. These pieces of evidence could have some relevance to this case against the Criminal Miscellaneous Application No. 183 of 2019 in Criminal Appeal No. 259 of 2018 3 appellant if the appellant had been lawfully or properly identified during a test identification parade. In the case in hand the test identification parade conducted for identification of the appellant and his co-accused by the relevant prosecution witnesses suffered from a serious legal defect inasmuch as in one and the same parade three accused persons including the appellant had statedly been identified by three separate prosecution witnesses. Such identification of three accused persons in one go amounted to a joint identification and an identification parade which is joint has consistently been disapproved by this Court through many a judgment and a reference in this respect may be made to the cases of Kamal Din alias Kamala v The State (2018 SCMR 577), Gulfam and another v. The State (2017 SCMR 1189), Hakeem and others v The State (2017 SCMR 1546), Shafqat Mehmood and others v The State (2011 SCMR 537), Bacha Zeb v The State (2010 SCMR 1189), Ziaullah alias Jajj v The State (2008 SCMR 1210), Imran Ashraf and 7 others v The State (2001 SCMR 424) and Lal Pasand v The State (PLD 1981 SC 142). It is unfortunate that the Magistrate conducting the test identification parade in this case was completely oblivious of such judgments holding the field. The only piece of evidence remaining in the field was in the shape of some recoveries affected in this case which included a Danda¸ a rope, a wallet, a copy of the Computerized National Identity Card, some cheques, visiting card, receipts and a copy of the Matriculation Result Card of the deceased which had statedly been recovered from the house of the appellant during the investigation. Some reservations have already been expressed by the High Court in the impugned judgment passed by it regarding veracity of the alleged recoveries and upon our own independent evaluation we have found such recoveries to be nothing but fabricated. It was unthinkable that the culprits who had taken every precaution to conceal their crimes would keep such articles at their home so as to furnish evidence of their crimes later on. 4. For what has been discussed above a conclusion is inescapable and irresistible that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. This appeal is, therefore, allowed, the conviction and sentence of the appellant are set aside and he is acquitted of the charge by extending the benefit of doubt to him. He shall be released from the jail forthwith if not required to be detained in connection with any other case. 5. Before parting with this judgment we may observe that competence and capability of Mr. Kanwar Anwaar Ali, Special Judicial Magistrate appearing before the trial court as PW8 have been found by us to be quite doubtful and deficient inasmuch as while conducting a test identification parade on 19.09.2009 in connection with this criminal case in Central Jail, Kot Lakhpat, Lahore he had paid no heed or regard whatsoever to the law declared by this Court in the precedent cases holding the field wherein it had clearly been laid down that a test identification parade qua many accused persons cannot be conducted in one go. Through his disregard of the law declared by this Court he had made a very important piece of evidence reduced in worth or eliminated as an admissible piece of evidence and the prosecution had to suffer on that score irretrievably. Let Mr. Kanwar Anwaar Ali appear before this Court on 22.02.2019 in person so as to show as to why appropriate proceedings may not be initiated against him on account of dereliction of duty and lack of sufficient legal knowledge and also to show as to why some adverse recommendations may not be made to the concerned authorities regarding his suitability to hold a judicial or executive office. The Registrar of the Lahore High Court, Lahore is directed Criminal Miscellaneous Application No. 183 of 2019 in Criminal Appeal No. 259 of 2018 4 to trace the said Mr. Kanwar Anwaar Ali and to make sure that he appears before the Court in person on the appointed date. ” 2. In compliance with the direction issued by this Court on 12.02.2019 Mr. Kanwar Anwaar Ali, the then Special Judicial Magistrate appearing before the trial court as PW8 has appeared before this Court in person along with his written statement which reads as follows: “I most humbly submit that I was inducted as a Provincial Management Service (PMS) Officer (BS-17) on 15.05.2006 and my academic qualification at the time of induction was simple graduation (B.A). I received training at Management & Professional Development Department (MPDD), Government of the Punjab in a 32 weeks course on Administration & Development from 15.05.2006 to 23.12.2006. Except for few orientation lectures on CPC, PPC, Cr.PC and Constitutional Law, no extensive legal education or training was being imparted by the MPDD after abolition of Executive Magistracy and main focus was and still is on planning & Development, Public Administration, Public Policy, Management and Revenue. 2. It is further submitted that after 03-years of government service while I was working as Tehsil Municipal Officer, Okara, I was transferred by S&GAD on 18.08.2009, after concurrence of Hon’ble Lahore High Court, Lahore and posted as Special Judicial Magistrate, at Model Town Courts, Lahore against one of the vacant posts where erstwhile Executive Magistrates of PCS cadre would serve and decide petty offences pertaining to local & special laws. I was not a law graduate yet I served there as Special Judicial Magistrate in District Judiciary w.e.f. 01.09.2009 to 11.10.2012. in absence of any institutional setup and formal legal training arrangement or practical demonstrations pertaining to assignments like test identification parades, raids, inquests and exhumations, the only opportunity available to me was day to day on-job learning or study of case laws of Superior Courts and commentaries. For a non-law-graduate like me, there was no institutional arrangement for capacity building and throughout I had to be self taught. 3. I beg to state that it was the 10th day of my duty as Special Judicial Magistrate when I conducted my maiden test identification parade in the subject case. I had given bare reading of instructions on the subject contained in volume-III of High Court Rules & Orders and Police Rules 1934. During the conduct of my ever first identification Parade, I used commonsensical learning that I had gathered from reading of bare instructions, pattern and guidance of my colleagues in judiciary. In my humble understanding, a joint identification parade meant a parade in which more than one accused had been made to stand in a single row with many other dummies for identification by a witness, therefore I took care not to mix more than one accused person with 09 almost identical dummies in a separate row. Each row was separately presented before a witness for identification. The witness was told that he would be presented three rows; one after the other and in each row of 10 inmates, one person could be a suspect. A row would appear on site, the witness could identify or otherwise, the identified person would be separated and then the Criminal Miscellaneous Application No. 183 of 2019 in Criminal Appeal No. 259 of 2018 5 left over row of the dummies would depart. The second important learning was identification of accused with description of role in front of the identified suspects. 4. It is my most humble submission that I have conducted said identification proceedings in good faith as a judicial officer to the best of my ability and knowledge without any malafide intention. It is my humble understanding that the crux of the statements made by witnesses while describing respective roles of accused person in the occurrence could hardly substantiate the offence under sections 365-A or 302, PPC. It was responsibility of the prosecution to collect corroborating circumstantial evidence for proving charges against the accused person. I most humbly submit that my role as a judicial officer was restricted only to the extent of recording witnesses and their description of respective roles of the accused persons in the occurrence. Prayer: It is most humbly prayed that I am a career civil servant and father of three school going kids and a sole bread- winner of a large family consisting of elderly parents and un- married sisters. In good faith, I tried to perform my duty where- ever I was posted by the Government. I place myself at the mercy of the Hon’ble Court and invoke its compassion of taking a lenient view and humbly request that I may not be punished in any manner which may jeopardize my career as a civil servant and future lives of my innocent kids and dependents.” The explanation put forward by Mr. Kanwar Anwaar Ali who is presently posted as Deputy Secretary (P&D Department) Government of the Punjab, Lahore and the peculiar circumstances mentioned therein have been found by us to be plausible and, thus, no occasion has been found by us for proceeding against him in any manner or for passing any adverse remark against his conduct. The notice issued to him is, therefore, discharged. 3. Before parting with this order we would like to point out that the matter of taking of different steps in holding of a proper test identification parade in connection with a criminal case has developed over many decades and the requirements of such a parade as well as the safeguards to be ensured during such a parade so as to make it a meaningful exercise and providing material in a criminal case to be considered in a trial have elaborately been detailed in the landmark judgment passed by a learned Division Bench of the Lahore High Court, Lahore in the case of Muhammd Yaqoob and another v The State (1989 P.Cr.L.J. 2227) and in the said judgment Mr. Justice Khalil-ur-Rehman Criminal Miscellaneous Application No. 183 of 2019 in Criminal Appeal No. 259 of 2018 6 Ramday (as his lordship then was a Judge of the Lahore High Court, Lahore) had observed as follows: “16. But before we undertake a deeper analysis of the evidentiary value of the test identification proceedings held in the present case, it would be of advantage to first appreciate the object and the value of such an evidence as also to recapitulate the standards required to be met before such like identification parades could be credited with reliance. 17. The evidence offered through identification proceedings is not a substantive piece of evidence but is only corroborative of the evidence given by the witnesses at the trial Muhammad Bashir v. The State PLD 1958 SC (Pak.) 1. It has no independent value of its own Muhammad Afzal and another v. The State 1982 SCMR 129 and cannot as a rule, form a sufficient basis for conviction though the same may add some weight to the other evidence available on record Sudhindranath v. The State AIR 1952 Cal. 423. 18. The identification parades (as they are normally called) are necessary only where the offender was a complete stranger to the witnesses Ismail and another v. The State 1974 SCMR 175. And the whole object of the identification proceedings is to find out whether the suspect was or was not the real offender Satya Narain v. The State AIR 1953 All. 385 and Kind v. Christle 1914 AC 545. 19. Such-like identification proceedings are not the testimony of a witness but the testimony of the senses of the witness. It is essentially a test of his power of observation and perception, a test of his power to recognize strangers and a test of his memory. These gifts of God may vary from man to man. A witness may be honest, independent and truthful but then his memory may be faulty. And then the tricks of memory and its conscious and unconscious activity could also wrap the vision of a man. When mistakes are possible in the recognition of a man known from before, then the possibility of such mistakes in identifying strangers is definitely greater. And more so when the witnesses have seen the offender for the first time during the occurrence and that also briefly and not with a calm but in an excited, confused and terrorised state of mind. 20. It was primarily for these reasons that Dorab Patel, J. (as his Lordship then was) cautioned the Courts to beware of the dangers inherent in the identification of strangers and quoting from the Criminal Law Revision Committee Report (1972), observed in Lal Pasand's case PLD 1981 SC 142 that mistaken identifications were:- "……..by far the greatest cause of actual or possible wrong convictions…." A similar note of caution was given by Monir in his Evidence Act Pak. Edition, Vol. 1 where the advice is that:- " .... the evidence as to identification ought in each case, to be subjected to a close and careful scrutiny." 21. What then are the standards required to be satisfied by such an evidence before the same could be accepted by a Court of law? Criminal Miscellaneous Application No. 183 of 2019 in Criminal Appeal No. 259 of 2018 7 22. The answer is that the vital factor determinative of the worth and value of identification proceedings is the effectiveness of the precautions taken, before and during the course of such proceedings which are designed to eliminate the possibility of unjustified convictions. 23. Although there is no law, which prescribes any such precautions yet the necessary guidelines are available in the form of executive instructions and judicial pronouncements. Some of them are summarised as under:- (a) Memories fade and visions get blurred with passage of time. Thus, an identification test, where an unexplained and unreasonably long period has intervened between the occurrence and the identification proceedings, should be viewed with suspicion. Therefore, an identification parade, to inspire confidence, must be held at the earliest possible opportunity after the occurrence; (b) a test identification, where the possibility of the witness having seen the accused persons after their arrest cannot be ruled out, is worth nothing at all. It is, therefore, imperative to eliminate all such possibilities. It should be ensured that, after their arrest, the suspects are put to identification tests as early as possible. Such suspects should preferably, not be remanded to police custody in the first instance and should be kept in judicial custody till the identification proceedings are held. This is to avoid the possibility of overzealous I.Os. showing the suspects to the witnesses while they are in police custody. Even when these accused persons are, of necessity, to be taken to Courts for remand etc. they must be warned to cover their faces if they so choose so that no witness could see them; (c) identification parades should never be held at police stations; (d) the Magistrate, supervising the identification proceedings, must verify the period, if any, for which the accused persons have remained in police custody after their arrest and before the test identification and must incorporate this fact in his report about the proceedings; (e) in order to guard against the possibility of a witness identifying an accused person by chance, the number of persons (dummies) to be intermingled with the accused persons should be as much as possible. But then there is also the need to ensure that the number of such persons is not increased to an extent which could have the effect of confusing the identifying witness. The superior Courts have, through their wisdom and long experience, prescribed that ordinarily the ratio between the accused persons and the dummies should be 1 to 9 or 10. This ratio must be followed unless there are some special justifiable circumstances warranting a deviation from it; (f) if there are more accused persons than one who have to be subjected to test identification, then the rule of prudence laid down by the superior Courts is that separate identification parades should ordinarily be held in respect of each accused person; Criminal Miscellaneous Application No. 183 of 2019 in Criminal Appeal No. 259 of 2018 8 (g) it must be ensured that before a witness has participated in the identification proceedings, he is stationed at a place from where he cannot observe the proceedings and that after his participation he is lodged at a place from where it is not possible for him to communicate with those who have yet to take their turn. It also has to be ensured that no one who is witnessing the proceedings, such as the members of the jail staff etc., is able to communicate with the identifying witnesses; (h) the Magistrate conducting the proceedings must take an intelligent interest in the proceedings and not be just a silent spectator of the same bearing in mind at all times that the life and liberty of some one depends only upon his vigilance and caution; (i) the Magistrate is obliged to prepare a list of all the persons (dummies) who form part of the line-up at the parade alongwith their parentage, occupation and addresses; (j) the Magistrate must faithfully record all the objections and statements, if any, made either by the accused persons or by the identifying witnesses before, during or after the proceedings; (k) where a witness correctly identifies an accused person, the Magistrate must ask the witness about the connection in which the witness has identified that person i.e. as a friend, as a foe or as a culprit of an offence etc. and then incorporate this statement in his report; (l) and where a witness identifies a person wrongly, the Magistrate must so record in his report and should also state the number of persons wrongly picked by the witness; (m) the Magistrate is required to record in his report all the precautions taken by him for a fair conduct of the proceedings and (n) the Magistrate has to give a certificate at the end of his report in the form prescribed by C.H.II.C. of Vol. III of Lahore High Court Rules and Orders. 24. The measures above listed should, however, not be taken as exhaustive of the steps which are required to be taken before, during and after the identification proceedings. All these requirements are no doubt mandatory but at the same time they are only illustrative of the precautions which the Courts of law demand before some respect can be shown to the evidence offered through the test identification proceedings. 25. In enunciating the above principles governing the proceedings in question and in enumerating the above measures and requirements, we have sought guidance from the following:- (i) Rules and Orders of the Lahore High Court, Chapter 11-C of Vol. III; (ii) Punjab Government Circular Letter No. 6091- J-36/39829 (H-Judl.) dated 19-12-1936; (iii) Punjab Government Circular Letter No. 6546-J-43/83844 (H-Judl.), dated 17-12- 1943; (iv) Punjab Government Circular Letter No. Judl.I-(13)/61, dated 26-7-1961, (v) Monir's Evidence Act (Pak. Edition) Vol. I, (vi) Lal Pasand v. The State PLD 1981 SC 142, (vii) Muhammad Afzal v. The State 1982 SCMR 129, (viii) Ismail v. The State 1974 SCMR Criminal Miscellaneous Application No. 183 of 2019 in Criminal Appeal No. 259 of 2018 9 175, (ix) Khadim Hussain v. The State 1985 SCMR 721, (x) Muhammad Bashir Aslam v. The State PLD 1958 SC (Pak.), (xi) Gul Baig v. The State PLD 1964 Kar. 275, (xii) Musharrif Hussain v. The State PLD 1970 Dacca 686, (xiii) Sadu v. The State 1972 PCr.LJ 10, (xiv) Qabil Shah v. The State PLD 1960 Kar. 697, (xv) Wahid Bakhsh v. The State 1969 PCr.LJ 137, (xvi) Karim v. The State PLD 1961 Kar. 728, (xvii) Kameshwar Singh v. The State AIR 1972 SC 102 (xviii) Parbhu v. Emp. AIR 1943 Lah. 946, (xix) Emp. v. Debi Charan AIR 1942 All. 339, (xx) Sataya Naryan v. The State AIR 1953 All. 385, (xxi) Gajadher v. Emp. AIR 1932 Oudh. 99 and (xxii) Ramzan v. Emp. AIR 1929 Sindh 149.” We have failed to find a more elaborate illustration of the requirements and the safeguards necessary for holding a test identification parade than found in the above mentioned portion of the judgment passed in the said precedent case. We wholeheartedly approve the said requirements and safeguards which are to be meticulously followed and observed in all the test identification parades held in connection with criminal cases. 4. It may also be observed that during a test identification parade the requirement regarding specifying by a witness the role of an individual accused person in commission of an offence had also been identified and emphasized by this Court in the cases of Ismail and another v The State (1974 SCMR 175), Khadim Hussain v The State (1985 SCMR 721), Ghulam Rasul and 3 others v The State (1988 SCMR 557), Asghar Ali alias Sabah and others v The State and others (1992 SCMR 2088), State/Government of Sindh through Advocate-General, Sindh, Karachi v Sobharo (1993 SCMR 585), Mehmood Ahmad and 3 others v The State and another (1995 SCMR 127), Siraj-ul-Haq and another v The State (2008 SCMR 302), Ghulam Qadir and 2 others v The State (2008 SCMR 1221), Muhammad Afzal alias Abdullah and another v State and others (PLJ 2009 SC 333), Shafqat Mehmood and others v The State (2011 SCMR 537), Sabir Ali alias Fauji v The State (2011 SCMR 563), Muhammad Fayyaz v The State (2012 SCMR 522), Azhar Mehmood and others v The State (2017 SCMR 135), Hakeem and others v The State (2017 SCMR 1546) and Kamal Din alias Kamala v The State (2018 SCMR 577). Criminal Miscellaneous Application No. 183 of 2019 in Criminal Appeal No. 259 of 2018 10 5. Identification of many accused persons in one line in one go during a test identification parade has also repeatedly been held by this Court to be improper and it has been clarified by this Court on a number of occasions that every accused person is to be put to a separate test identification parade and a reference in this respect may be made to the cases of Lal Pasand v The State (PLD 1981 SC 142), Imran Ashraf and 7 others v The State (2001 SCMR 424), Ziaullah alias Jajj v The State (2008 SCMR 1210), Bacha Zeb v The State (2010 SCMR 1189), Shafqat Mehmood and others v The State (2011 SCMR 537), Gulfam and another v The State (2017 SCMR 1189), Hakeem and others v The State (2017 SCMR 1546) and Kamal Din alias Kamala v The State (2018 SCMR 577). 6. Identification of an accused person by eyewitnesses before the trial court during a trial is generally considered to be quite unsafe because before such identification before the trial court during the trial the eyewitnesses get may opportunities to see the accused persons appearing before the court in connection with their remand, distribution of copies of statement of prosecution witnesses recorded under section 161, Cr.P.C., framing of the charge and recording of statements of other prosecution witnesses. Even in such identification before the trial court during the trial it is imperative that a witness must point towards a particular accused person present before the trial court and must also specify the role allegedly played by him in the incident in issue. The unsafe nature of identification of an accused person before the trial court during the trial has already been commented upon by this Court in the cases of Asghar Ali alias Sabah and others v The State and others (1992 SCMR 2088), Muhammad Afzal alias Abdullah and another v The State and others (PLJ 2009 SC 333), Nazir Ahmad v Muhammad Iqbal (2011 SCMR 527), Shafqat Mehmood and others v The State (2011 SCMR 537), Ghulam Shabbir Ahmed and another v The State (2011 SCMR 683) and Azhar Mehmood and others v The State (2017 SCMR 135). Criminal Miscellaneous Application No. 183 of 2019 in Criminal Appeal No. 259 of 2018 11 7. It may also be mentioned here that a test identification parade and correct pointing out of an accused person by an eyewitness therein is not a substantive piece of evidence and failure to hold a test identification parade is not always fatal to the prosecution’s case and a reference in this respect may be made to the cases of Muhammad Akram Rahi and others v The State and others (2011 SCMR 877) and Ghazanfar Ali alias Pappu and another v The State (2012 SCMR 215). 8. The above mentioned precedent cases and the best practices mentioned therein have been consolidated by us in the present order so that any confusion regarding the legal position in respect of a test identification parade may be removed and all concerned may stand instructed and guided in that regard in future. A serious exception may henceforth be taken to any non-compliance or disregard of the requirements and safeguards mentioned above. 9. The office of this Court is directed to send a copy of this order to the Registrars of all the High Courts in the country with a direction to send a copy of the same to every Judge and Magistrate within the jurisdiction of each High Court handling criminal cases at all levels for their information and guidance. Chief Justice Judge Islamabad 22.02.2019 Approved for reporting. Arif

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: Mr. Justice Asif Saeed Khan Khosa, CJ Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Sajjad Ali Shah Criminal Miscellaneous Application No. 200 of 2019 in Criminal Appeal No. 238-L of 2013 (Notice in pursuance of the order passed by this Court on 13.02.2019 in Criminal Appeal No. 238-L of 2013 to Police Constable Khizar Hayat son of Hadait Ullah on account of his false statement made before the trial court in a criminal case) In attendance: Mr. Ch. Nusrat Javed Bajwa, ASC along with Khizar Hayat, Police Constable in person. Mr. Ahmed Raza Gillani, Additional Prosecutor-General, Punjab Mr. Munir Ahmed, S.I. Date of hearing: 04.03.2019 ORDER Asif Saeed Khan Khosa, CJ.: While deciding Criminal Appeal No. 238-L of 2013 filed by Muhammad Ilyas convict this Court had passed the following judgment on 13.02.2019: “Asif Saeed Khan Khosa, CJ.: Muhammad Ilyas appellant and some others had allegedly ambushed one Muhammad Asif at about 07.30 P.M. on 13.10.2007 in village Bathanwala in the area of Police Station Rayya Khas, District Narowal and had then fired at and killed him in the backdrop of a motive based upon a quarrel between the parties about one year prior to the present occurrence. With these allegations the appellant and his co-accused were booked in case FIR No. 152 registered at the above mentioned Police Station during the same night and after a regular trial the appellant was convicted by the trial court for an offence under section 302(b), PPC and was sentenced to death and to pay compensation. The appellant challenged his conviction and sentence before the High Court through an appeal which was dismissed to the extent of his conviction for the offence under section 302(b), PPC but the same was partly allowed to the extent of his sentence of death which was reduced by the High Court to imprisonment for life. Hence, the present appeal by leave of this Court granted on 26.06.2013. Criminal Miscellaneous Application No. 200 of 2019 2 2. Leave to appeal had been granted in this case in order to reappraise the evidence and with the assistance of the learned counsel for the parties we have undertaken that exercise. 3. The occurrence in this case had taken place during a night and a source of light had been mentioned in the FIR as well as in the site-plan of the place of occurrence but admittedly no such light or its source had been secured by the investigating agency. The ocular account of the incident in issue had been furnished before the trial court by Muhammad Boota complainant (PW7) and Khizar Hayat (PW8) who were very closely related to the deceased inasmuch as the complainant was a brother of the deceased whereas the other witness was a cousin of the deceased. Khizar Hayat (PW8) had been disbelieved by the High Court and his testimony had been ruled out of consideration because on the basis of some official record produced before the trial court it had been established that in his capacity as an official in the police department Khizar Hayat (PW8) was present on his duty at a Police Station situated in Lahore, i.e. hundreds of miles away from the place of occurrence. Muhammad Boota complainant (PW7) had stated in the FIR as well as in his statement before the trial court that at the relevant time he was going to see off Khizar Hayat (PW8) and another and was, thus, proceeding with them towards a bus stop. If presence of Khizar Hayat (PW8) at the relevant time had been disbelieved by the High Court then the very reason stated by the complainant for his availability at the scene of the crime at the relevant time had disappeared. This shows that even Muhammad Boota complainant (PW7) had no regard for the truth and he too was a planted witness. Instead of providing support to the ocular account the medical evidence had gone a long way in contradicting the complainant inasmuch as the seat of injury attributed to the present appellant in the FIR had been changed by the complainant in his statement made before the trial court. The duration between death and post- mortem examination mentioned in the Post-mortem Examination Report showed that the murder in question could have taken place much prior to the stated time of occurrence. No time of death of the deceased had been mentioned in the Post-mortem Examination Report. In column No. 3 of the Inquest Report no time of death of the deceased becoming known had been mentioned. The motive set up by the prosecution had been found by the High Court not to have been proved. Nothing had been recovered from the appellant’s custody during the investigation of this case. 4. For what has been discussed above a conclusion is inescapable that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. This appeal is, therefore, allowed, the conviction and sentence of the appellant are set aside and he is acquitted of the charge by extending the benefit of doubt to him. He shall be released from the jail forthwith if not required to be detained in connection with any other case. 5. Before parting with this judgment we have found that Khizar Hayat (PW8) was at the time of the present incident serving as a Police Constable at Police Station Wahdat Colony, Lahore and he had claimed to have seen the present occurrence taking place at about 07.30 P.M. on 13.10.2007 in village Bathanwala in the area of Police Station Rayya Khas, District Narowal. Muhammad Waris, Moharrir/Head Constable (DW1) had appeared before the trial court and had produced official record of Police Station Wahdat Colony, Lahore quite categorically establishing that Khizar Hayat (PW8) was not on leave and was Criminal Miscellaneous Application No. 200 of 2019 3 present at his duty at Police Station Wahdat Colony, Lahore at the time when the present occurrence had taken place in the area of Police Station Rayya Khas, District Narowal. On the basis of the said record the High Court had categorically concluded that Khizar Hayat (PW8) could not be believed to be an eyewitness and such finding of the High Court has not been assailed by the complainant party or the State before this Court. It is, thus, obvious that Khizar Hayat (PW8) had deposed on oath falsely before the trial court and on the basis of his false testimony Muhammad Ilyas appellant had been sentenced to death by the trial court. These facts apparently attract the provisions of section 194, PPC. Let a notice be issued to Khizar Hayat son of Hadait Ullah, caste Jat, resident of Gakhar Wali, Tehsil Pasrur, District Sialkot stated to be presently posted at Police Station Qilla Gujjar Singh, Lahore to appear before this Court on 04.03.2019 and to show as to why he may not be ordered to be proceeded against for commission of an offence under section 194, PPC. The Deputy Inspector-General of Police (Operations), Lahore is directed to ensure appearance of Khizar Hayat before this Court on the appointed date.” 2. Today Khizar Hayat, who had appeared before the trial court as PW8, has appeared in person along with his learned counsel and they have tried to convince us that the statement made by Khizar Hayat before the trial court in connection with the above mentioned criminal case was a true statement and that he had not indulged in any falsehood. Paragraph No. 5 of the judgment passed by this Court and reproduced above, however, shows a different story. It appears that the said Khizar Hayat had deposed falsely in the trial of a criminal case in which Muhammad Ilyas accused had been convicted and was sentenced to death on the charge of murder. Through the above mentioned judgment this Court had acquitted the said convict of the charge after disbelieving the evidence produced by the prosecution against him, including the testimony of Khizar Hayat (PW8). As the said Khizar Hayat had ostensibly committed the offence of perjury attracting the provisions of section 194, PPC, therefore, the matter is referred to the learned District & Sessions Judge, Narowal for proceeding against Khizar Hayat in accordance with the law. 3. While attending to this matter we have felt that the deeper issue involved in the matter relates to the fact that the rule falsus in uno, falsus in omnibus had in the past been held by the superior Courts of this country to be inapplicable to criminal cases in Pakistan which had gradually encouraged and emboldened Criminal Miscellaneous Application No. 200 of 2019 4 witnesses appearing in trials of criminal cases to indulge in falsehood and lies making it more and more difficult for the courts to discover truth and dispense justice. We have undertaken an exhaustive exercise so as to trace the history of the said rule and to understand how the jurisprudence around it has developed in Pakistan while also adverting to the relevant Islamic and legal provisions dealing with the subject. After a careful consideration of the history of the rule, the relevant Islamic provisions and the law of the land and after analysing the precedent case-law available on the subject we have come to the conclusion that the view that the rule is not to be applied to criminal cases in Pakistan was formed as a result of taking into account extraneous and practical considerations, rather than legal and jurisprudential, and the said view is not in accord with the Islamic provisions on the subject besides militating against the criminal law of this country according to which deposing falsely in a court and commission of perjury entail serious penal consequences. While coming to the said conclusion we first looked at the rule in its historical perspective, then traced through case-law as to how the rule was said to be not applicable in Pakistan and how it has been dealt with by this Court and lastly analysed the Islamic provisions relevant to the matter of giving false testimony. The following paragraphs deal with each of these heads turn by turn. Falsus in uno, falsus in omnibus – Historical perspective 4. Falsus in uno, falsus in omnibus is a Latin phrase meaning “false in one thing, false in everything.” The rule held that a witness who lied about any material fact must be disbelieved as to all facts1 because of the reason that the “presumption that the witness will declare the truth ceases as soon as it manifestly appears that he is capable of perjury” and that “Faith in a witness's testimony cannot be partial or fractional….”2 In its 1 George Fisher, The Jury's Rise as Lie Detector, 107 Yale L.J. 654 (1997) 2 Thomas Starkie, A Practical Treatise On The Law Of Evidence, 233 (Boston, Wells & Lilly) (1826) Criminal Miscellaneous Application No. 200 of 2019 5 original form, the rule was mandatory and the notion “was that the testimony of one detected in a lie was wholly worthless and must of necessity be rejected.”3 John Henry Wigmore, an American jurist who served as the Dean of Northwestern Law School from 1901 to 1929, traced the rule to the Stuart treason trials of the late 17th century4. In Trial of Hampden (9 Howell's State Trials 1053, 1101 (1684)), it was contended while referring to the rule of falsus in uno, falsus in omnibus that “If we can prove that what he hath said of my lord of Essex is false, he is not to be believed against the defendant.” In Trial of Langhom (7 Howell's State Trials 417, 478 (1679)), it was argued that “If I can prove any one point (in answer to that which he hath given evidence) not to be true, then I conceive, my lord, he ought to be set aside.” Similarly, it finds mention in Trial of Coleman (7 Howell's State Trials I, 71 (1678)) that “[I]t would much enervate any man's testimony, to the whole, if he could be proved false in any one thing.” Barbara Shapiro, an American academic and author, notes that Michael Dalton's early 17th century manual for Justices of the Peace advised magistrates that when examining accused felons, they should discredit the whole of the accused’s story if any part proved false.5 5. By the early nineteenth century English judges were telling juries that they might - but need not - disbelieve the entire testimony of a witness who had lied about a material fact.6 In the United States of America, however, the U.S. Supreme Court endorsed a mandatory form of the rule as late as 1822, as did some state courts well into the twentieth century. In the case of The Santissima Trinidad (20 U.S. (7 Wheat.) 283, 339 (1822)) it was held that when a witness tells a deliberate falsehood, the courts of justice are bound to apply the maxim falsus in uno, falsus in omnibus. In the famous O. J. Simpson murder trial the Judge in 3 John Henry Wigmore, A Treatise On The Anglo-American System Of Evidence In Trials At Common Law (1940) 4 John Henry Wigmore, A Treatise On The Anglo-American System Of Evidence In Trials At Common Law (1940) 5 Barbara J. Shapiro, Beyond Reasonable Doubt and Probable Cause: Historical Perspectives on the Anglo-American Law of Evidence (1991) 6 George Fisher, The Jury's Rise as Lie Detector, 107 Yale L.J. 655 (1997) Criminal Miscellaneous Application No. 200 of 2019 6 that case instructed the jurors that “[a] witness who is willfully false in one material part of his or her testimony is to be distrusted in others.”7 False testimonies in the courts in India – An old menace 6. In an article Truthful Character of Indian Witnesses (AIR 1945 Journal 6) Thakur Prasad Dubey, M.A., LL.B., P.C.S. (Judicial), Farrukhabad had written about the unfortunate trend of false testimonies in courts in the undivided India. He had observed as follows: “It is a well-known fact that Judges even of the Highest Tribunals of the land have very often expressed their opinions that witnesses in India are greater liars than elsewhere and such an opinion yet continues to be entertained throughout the country by very many Judges. The Judicial Committee made the following observations in a very old case reported in 4 M.I.A. 431 [(1849) 4 M.I.A. 431 (P.C.), Mudhoo Soodun Sundial v. Suroop Chunder Sirkar.] at p.441: “It is quite true that such is the lamentable disregard of truth prevailing among the native inhabitants of Hindustan that all oral evidence is necessarily received with great suspicion.” Their Lordships again affirmed their conviction in another case reported in 11 M.I.A. 177 [(’67) 11 M.I.A. 177 (P.C.), Wise v. Sunduloonissa Chowdhrance.] where it was said: “In a native case it is not uncommon to find a true case placed on a false foundation and supported in part by false evidence.” C. D. Field, an old eminent commentator of Law of Evidence, has the following to say on the point: “There would appear to be an opinion pretty generally prevalent that witnesses in India are more mendacious than witnesses in other countries and it has repeatedly been stated that Judges in India have a far more difficult task to perform than Judges in England in consequence of the untruthful nature of evidence with which they have to deal. (Introduction pp. 30-31, Edn. 8).” A somewhat familiar observation was made by a Bench of the Allahabad High Court in a recent murder case of Azamgarh about which there was some controversy in the press. Taylor has attempted to give reasons for such a general prevalence of falsehood. He says: “Thus it has been justly observed that a propensity to lying has always been more or less a peculiar 7 California Jury Instructions, Criminal, Section 2.21.2 (West 1993) Criminal Miscellaneous Application No. 200 of 2019 7 feature in the character of an enslaved people – accustomed to oppression of every kind ……. It is little to be wondered at if a lie is often resorted to as a supposed refuge from punishment and that thus an habitual disregard is engendered.” He attributes this as one of the causes of the prevalence of the disregard for truth generally in India, among the peasants of Ireland and among the subjects of Czar (Taylor vol. I, Arts. 45 and 53, Edn. 8.) It has been suggested in many quarters that on account of the growth of modern education this tendency towards falsehood has been checked and that there is not so much of perjury now as it was before the advent of British system of justice in this country. While it has to be conceded that perjury and falsehood among the litigants and witnesses in our law Courts has been on the increase ever since the establishment of Anglo Indian Courts the proposition that its tendency has been checked due to modern education does not seem to be warranted by the dictates of the experience of those who have been dealing with that class of people days after days and years after years. The class of people who have received College or University education constitute a drop in the ocean so far as population goes and that class is seldom seen in our law Courts as parties or witnesses. --------------------- As against this it cannot be denied that perjury in Indian Courts has gone on increasing and it has that increasing tendency even now. Historically the fact appears to be that after the establishment of Anglo-Indian Courts perjury started with the town and Bazar people. The honesty of the villagemen remained yet untouched for a considerable time. But the impregnable traditional honesty of the villagers seems to have begun to give way in law Courts in course of time and now we have the lamentable deterioration of that class as well. I do not know how it will strike my learned readers but to me it offers itself as a perplexing phenomenon that a race traditionally, religiously, culturally and historically honest should in the course of less than a century get itself so highly deteriorated in their virtues of truth. The causes thereof are not far to seek for those who have experiences of the functionings of our modern laws and law Courts. Have we pondered over the very common expression of our present day witnesses when while speaking of facts outside Courts they every day say “I will speak the truth here and will have no hesitation in telling the whole truth for it is not a Court.” And when they enter the court-room they are completely changed and will not have the slightest hesitation in telling the blackest of lies. The unravelling of this mystery will lead us to the discovery of the real causes of the fall of the moral of the Indian witnesses. They seem to feel that the Court is an alien body – a secular institution something different from themselves and their social and village environments, a place where truth can be mercilessly butchered with impunity without the latest compunction. Yet we have the counter picture that these witnesses will not easily tell a lie before even a Court arbitrator and will seldom tell a lie in a village panchait of villagemen. This is certainly a complex riddle and it is for the Legislators and thinkers of our land to solve it. Perjury is eating up the very vitals of our society and blackening the fair pages of our history. The most important part played for the demoralization of our witnesses has been that of the lawyers of the mufassil Courts and in some measure that of the mufassil Judges themselves. Our technical laws of proof of facts have equally contributed towards Criminal Miscellaneous Application No. 200 of 2019 8 that cause. It is through lawyers that witnesses pass before they appear before the Judge. If they tolerate perjuries and falsehoods and actively or passively by connivance or consent allow a false witness to state false facts the doors of perjury are flung wide apart. These processes being repeated in thousands of instances every day throughout the country at the hands of our educated Vakils will naturally make lying less odious and give it a sanction due to the position they occupy in society even to the hesitant and faltering. It is thus that the whole atmosphere of the law Courts is becoming nauseatingly intolerable. The over-crowding in the profession, the unhealthy spirit of competition, the growth of the power of the dominating influence of village barristers who can dictate terms for action and whose number has ever been increasing are all contributing towards the fall of the professional morality among our lawyers. And are not some of the Judges in the muffasils abettors of that misfeasance? Do we not often over- emphasise the number and quantity of witnesses and pay lesser attention to more vital materials which can unearth the buried truth with greater certainties, I mean elements of circumstances, conducts, general probabilities, natural permissible presumptions, documentary pieces of evidence and the demeanour and ways of the delivery and behaviours of parties and the witnesses in the Court. Do not some of us bury our heads down and go on recording statements hours after hours regardless of what passes on in front of us? Do not some of us dismiss cases because witnesses on one side are larger in number than on the other? Lawyers have to cater to the standards of Judges. And do not some of the Courts of appeals in the mufassil make similar contributions towards that cause? I am firmly of the opinion that if Judges begin to detest false evidence and exercise their statutory powers to suppress it, the legal profession will shape its way differently. Which of us whether of the Bar or of the Bench does not feel that not even 10 percent of our present day witnesses make truthful contributions for finding correct facts. Yet the useless 90 percent will have to be put in and their conscience and those of others who are responsible for the conduct of the cases sacrificed. There has arisen a vicious circle in which every part is contributing its due share. The criminal law of perjury is for all purposes very seldom resorted to and very seldom successful. That is another cause which makes liars and perjurers bolder and more fearless. These facts are patent enough to attract the attention of the Leaders of the Community, the people who have powers to shape the State Policy. Man does not live by bread alone. Take away the man’s honesty and you reduce him to the position of a devil. Indian Society is in danger due to these increasing law Court perjuries and drastic all round measures are necessary to eradicate them. It needs the vigilance and the co-operation of all sections of people. After we have won the War this subject must form one of the most urgent and pressing items of the peace time progress. No price will be too high for it. Commissions may be set up to devise and recommend ways and means for restoring Indian honesty to its historical and traditional standard.” Falsus in uno, falsus in omnibus – Applicability in Pakistan 7. The rule was first held not to apply to cases in Pakistan in the case of Ghulam Muhammad and others v Crown (PLD 1951 Lahore 66) and the judgment was authored by Muhammad Munir, Criminal Miscellaneous Application No. 200 of 2019 9 CJ. The case involved murder of five people for which thirteen persons were implicated by the complainant party out of whom ten were tried and resultantly nine were found guilty. At the trial two of the accused persons took the plea that they were not in the village at the time of occurrence and were actually locked up in a police station. The learned Additional Sessions Judge disbelieved the said plea and came to the conclusion that in fact the said accused persons took part in the occurrence. The High Court upon re-examining the evidence found that the reasons prevailing with the trial court were not borne out of the record and consequently it held that the said two accused persons were not present at the place of occurrence when the murders were committed. While considering the effect of that finding recorded by it the High Court observed as follows: “Now what is the effect of this finding on the prosecution case? If there had been no circumstances tending clearly to show that the witnesses saw the murders, it would have been our duty to hold, that because they named Muhammad and Rahmat, they did not see the occurrence and thus to acquit the whole lot. The same would have been the result, if there had been no other evidence against any one of the appellants tending to show that he did take part in the murders.” But the High Court did not apply the rule holding that: “Generally when it is proved that some innocent persons have been dishonestly implicated in a crime, the Court is entitled, and it is safer, to acquit even those who have not been able to prove that they were falsely implicated. The rule, however, is not absolute, and its indiscriminate application in this Province is as dangerous to the administration of criminal justice as the general application of the contrary, rule, that in such cases the only persons against whom the evidence of the witnesses may be rejected are those who succeed in proving their innocence. Judges with vast and intimate experience of the administration of criminal justice in this country have often felt that where falsehood has been intentionally mixed with truth, they are under no obligation to winnow the grain of truth from the chaff of falsehood. Others with equal experience and keen insight into the character and mentality of witnesses who generally give evidence in criminal cases in this Province have emphasised the grave danger of miscarriage of justice if oral evidence were judged by maxim of falsus in uno, falsus in omnibus, and have considered proof of perjury on a material point by itself not to be a sufficient reason to reject that portion of the evidence which appears to be true. There are other observations on the subject, some plain in language and idea; others forceful epigrams, such as, that false evidence can never be corroborated, that zero added to a quantity adds nothing to that quantity and that whatever quantity be multiplied by zero, the result must still remain zero. I have always felt that the Criminal Miscellaneous Application No. 200 of 2019 10 question of questions for the Judge in such cases, is how to get at the truth with that degree of certainty as is always insisted upon in criminal cases and it seems to me that if you can do that, the result need not be determined by any general rule. It may be that the greater and clearer the falsehood, the more difficult the task of extracting the truth, but that is the real task before a judge, I have never felt any uncertainty about. I cannot, therefore, accept Mr. Saleem's contention that since it is proved in this case that the witnesses have involved at least two men who could not have taken any part in the murders, their evidence against the other accused must for that reason alone be rejected.” 8. By analysing the reasoning prevailing in the said judgment it may pertinently be noticed that the High Court was influenced purely by practical considerations relevant to testimonies made in the Province of the Punjab. It is obvious that use of the words ‘in this Province’ clearly indicated that the scope of the High Court’s reasoning was narrow as it was discussing the ‘character’ and ‘mentality’ of witnesses who gave evidence in that particular Province. With utmost respect, such practical considerations ought not to have been brought into effect to hold that a principle, which is backed by Islamic provisions no less, as will be seen later, is not to apply anymore in light of the said considerations. It appears that instead of curbing a menace creeping into administration of justice the High Court had decided to adopt a pragmatic approach and to go along with the menace by bending the principle itself. In hindsight that approach was most unwise as it sowed the seeds of unchecked falsehood in testimonies not only making the job of a judge more and more difficult but also increasingly polluting and sullying the stream of justice itself. 9. In the above mentioned case the High Court had failed to explain how the rule’s application was dangerous to the administration of criminal justice and what “grave danger of miscarriage of justice” was there “if oral evidence were judged by maxim of falsus in uno, falsus in omnibus”. It can be seen quite clearly that the High Court was influenced by extraneous and practical considerations, rather than legal or jurisprudential, which led it to conclude that there would be miscarriage of justice if the rule continued to apply. A Larger Bench of this Court had observed in the case of Mst. Sughran Bibi v The State (PLD 2018 Criminal Miscellaneous Application No. 200 of 2019 11 SC 595) that “Interpretation of law by this Court ought not to be premised on damning generalisations which are nothing but subjective.” The reasons advanced by the High Court in the case under discussion for doing away with the rule were clearly general and subjective in nature and the High Court ought to have been careful in that regard. 10. The High Court had further observed in that case that “the question of questions for the Judge in such cases, is how to get at the truth with that degree of certainty as is always insisted upon in criminal cases”. We are, however, of the view that the aim while deciding criminal cases ought not to be to “get at the truth” but to decide a matter in light of the settled legal principles with the sole focus on determining whether the evidence on the record proves the guilt of the accused person in accordance with the requisite standard, i.e. beyond reasonable doubt or not. We, through our experience, are of the opinion that trying to ascertain the truth, although a noble and ideal effort in its own right, may prove to be a slippery slope as the full facts of any criminal case are never presented before a court. For a Judge to do complete justice and to get to the truth in a criminal case, he needs, as a matter of necessity, to have in his knowledge all of the facts relevant to the case at hand. As that is never the case, the rule of law and consistency in approach can be only fostered and strengthened if criminal cases are decided in a uniform way and only and only in light of the settled principles of evidence, not by bringing in subjective and practical considerations, which invariably will vary from one judge to the next. 11. As noted above, historically the notion was that the rule was mandatory in nature and we are in no doubt that the rule should be applied mandatorily. This view stems from the notion that once a witness is found to have lied about a material aspect of a case, it cannot then be safely assumed that the said witness will declare the truth about any other aspect of the case. We have noted above that originally the view “was that the testimony of one detected in a Criminal Miscellaneous Application No. 200 of 2019 12 lie was wholly worthless and must of necessity be rejected.” A good application of the said notion can be seen in the case of Mohamed Fiaz Baksh v The Queen (PLD 1959 Privy Council 24). The case was about a murder for which two men were convicted in trial. Both men appealed to the Court of Appeal and the said Court dismissed the appeal of one but quashed the conviction of the other and ordered a new trial in his case. In ordering a new trial the Court was influenced by the fact that the witnesses produced were discrepant and had improved on their previous statements. However, in upholding the conviction of the other convict it was observed by the Court of Appeal as follows: “… they considered entirely different considerations applied. They could find a good deal unfavourable and nothing favourable to him in the statements and considered that nothing favourable to him could have been obtained therefrom which was not obtained at the trial. They accordingly held that the jury’s verdict in respect of this appellant could not be disturbed on this ground.” The Privy Council held the approach adopted by the Court of Appeal as erroneous and concluded as under: “Their Lordships are unable to accept this reasoning. If these statements afforded material for serious challenge to the credibility or reliability of these witnesses on matters vital to the case for the prosecution it follows that by cross-examination–or by proof of the statements if the witnesses denied making them– the defence might have destroyed the whole case against both the accused or at any rate shown that the evidence of these witnesses could not be relied upon as sufficient to displace the evidence in support of the alibis. Their credibility cannot be treated as divisible and accepted against one and rejected against the other. Their honesty having been shown to be open to question it cannot be right to accept their verdict against one and re-open it in the case of other. Their Lordships are accordingly of opinion that a new trial should have been ordered in both cases.” 12. Before we go on to analyse how the Supreme Court of Pakistan has dealt with the rule we deem it appropriate to cite a few cases in which the social conditions prevailing in the Province of the Punjab in the context of evaluating dying declarations have been discussed. Bakhshish Singh alias Bakhshi and others v Emperor (AIR 1925 Lahore 549) Criminal Miscellaneous Application No. 200 of 2019 13 “In our opinion it would be hardly safe to convict on the uncorroborated dying declaration of Lal Singh because it is well- known that inhabitants of the Punjab will often in dying declaration not only accuse the actual offenders, but will also add the names of other enemies.” Tawaib Khan and another v The State (PLD 1970 SC 13) “In the same line, there are the dying declarations of the deceased which have a degree of sanctity under the law, being the statements of a dying man, on the belief that he being placed in a situation of immediate apprehension of severance of his ties with the mundane affairs, he would not tell a lie and implicate innocent persons on false charges. But, I consider that in the matter of the administration of criminal justice, taking in view the present state of our society, the assessment of evidence, whether it is the statement of a witness or the statement of a person who is dead, is essentially an exercise of human judgment to evaluate the evidence so as to find out what is true and what is false therein. In this effort, the case has to be considered in all its physical environments and circumstances to find out how far the evidence or its different parts fit in with the circumstances and possibilities that can be safely deduced in the case. In this country, the habit, unfortunately, is quite common, now judicially recognized, that people do add innocent persons along with the guilty to satisfy their sense of revenge and to put the other side to the utmost grief. It is difficult to lay down a rigid rule that a person who is injured and is under an apprehension of meeting his death, would suddenly be gifted, as if by a magic transformation, with a clean conscience and a purity of mind to shed all the age-old habits and deep-rooted rancours and enmities. Even, assuming that the pangs of conscience are there at the time to prohibit making of false charges, the question arises whether these pangs are strong enough to fortify him to resist the promptings and persuasions of his relations and others who may be surrounding him at the time and incite him to support the pattern of the charge which they have chosen to make against the accused persons, whether innocent or guilty? It is for this reason that a close scrutiny of the dying declarations like the statements of interested witnesses, becomes absolutely necessary.” Muhammad Ameer and another v Riyat Khan and others (2016 SCMR 1233) “A dying declaration is an exception to the hearsay rule and, thus, the same is to be scrutinized with due care and caution, particularly in the backdrop of the observations made by different Courts about veracity of a dying declaration in the Province of the Punjab and a reference in this respect may be made to the cases of Bakhshish Singh alias Bakhshi and others v. Emperor (AIR 1925 Lahore 549), Tawaib Khan and another v. The State (PLD 1970 SC 13) and Usman Shah and others v. The State (1969 PCr.LJ 317).” 13. We now turn to see how the Supreme Court of Pakistan has dealt with the rule in different cases till date: Criminal Miscellaneous Application No. 200 of 2019 14 Tawaib Khan and another v The State (PLD 1970 SC 13) “The maxim “falsus in uno falsus in omnibus” has all along been discarded by the courts in this country. Similarly, the rule that the integrity of a witness is indivisible, despite its moral virtue, has not been endorsed by the superior courts of this country without reservations and cannot be accepted as one of universal application. In the last analysis, as stated in some of the eminent judicial decisions, “the grain has to be sifted from the chaff” in each case, in light of its own particular circumstances.” The State v Mushtaq Ahmad (PLD 1973 SC 418) “Moreover, it has been ruled by this Court in a number of recent cases, that having regard to the social conditions obtaining in this country, the principle falsus in uno falsus in omnibus cannot be made applicable to the administration of criminal justice and therefore Courts are under a duty to sift “chaff from the grain”.” Samano v The State (1973 SCMR 162) “It was next submitted that the fact that the evidence of the eye- witnesses had not been relied upon as against Fateh Mohammad, would react on its credibility as against the present appellants as well. The argument of course proceeds on the premise that the credit of a witness is indivisible, but the maxim falsus in uno, falsus in omnibus has not been followed by the Courts in this sub-continent, and it has been repeatedly held that in the context of the conditions prevailing in the country, the Courts have a duty to sift the grain from the chaff.” Bakka v The State (1977 SCMR 150) “The principle falsus in uno falsus in omnibus has long since ceased to be applied by the Courts in this country, and they have always endeavoured to separate the grain from the chaff.” Khairu and another v The State (1981 SCMR 1136) “It was next submitted that as the prosecution witnesses had lied in one essential respect namely, as to the first petitioner having been over-powered it was difficult to rely on their ipse dixit as to the culpability of the petitioners. The High Court held that the rule, falsus in uno falsus in omnibus, is not applicable for discarding the evidence of the witnesses as a whole and hence so much of the evidence which is credible can be accepted.” Ghulam Sikandar and another v Mamaraz Khan and others (PLD 1985 SC 11) “It is often said that the principle falsus in uno falsus in omnibus is not applicable in Pakistan. The same principle has been described in some cases, slightly differently; namely, that the testimony of an eye-witness should not be treated as indivisible Criminal Miscellaneous Application No. 200 of 2019 15 although there is no consensus with regard to the later view. A contrary view has also been held. Expressed in a more direct manner a similar rule in the administration of criminal justice which is hall-mark of Islamic Jurisprudence, that when a witness has been found false with regard to the implication of one accused about whose participation he had deposed on oath the credibility of such witness regarding involvement of the other accused in the same occurrence would be irretrievably shaken. However, as a matter of convenience a rule has been developed in Pakistan since the famous case of Ghulam Muhammad v. Crown (PLD 1951 Lah. 66) propounded by late Chief Justice Muhammad Munir that where it is found that a witness has falsely implicated one accused person, ordinarily he would not be relied upon with regard to the other accused in the same occurrence. But if the testimony of such a witness is corroborated by very strong and independent circumstances regarding other the reliance might then be placed on the witness for convicting the other accused. For further and practical application of this rule the following cases can be instructive; (particularly if the principle of indivisibility of credibility laid down in the Privy Council case Muhammad Faiz Bakhsh v. The Queen (PLD 1959 PC 24) is to be ignored :- Tawaib Khan and another v. The State PLD 1970 SC 13; The State v. Mushtaq Ahmad PLD 1973 SC 418; Muhammad Shafi and others v. The State 1974 SCMR 289; Bakka v. The State 1977 SCMR 150; Khairu and another v. The State 1981 SCMR 1136; Ahmad etc. v. The State 1982 SCMR 1049; Aminullah v. The State PLD 1982 SC 429 and Muhammad Nawaz v. The State 1984 SCMR 190. It is to be emphasised that the sub-rule of “separating the grain from the chaff”, has been demonstrated in many cases by applying the sure test - whether the same tainted ocular evidence has received corroboration from independent and equally strong inculpatory evidence/circumstance (sic)/accused. The afore-discussed main rule shall suffer serious change if and when it is examined in the light of the Islamic Principles. But for the time being even if the rule generally followed by the superior Courts is applied to this case it would be very essential to seek strong and independent corroboration against each one of the accused on account of various reasons discussed in the High Court judgment as also in this judgment.” (Bold letters have been supplied for emphasis) Ziaullah v The State (1993 SCMR 155) “In any case, the rule falsus in uno falsus in omnibus is no longer applicable and not unoften the Court has to sift the grain from the chaff. Reference in this connection may be made to Khairu and another v. The State (1981 SCMR 1136).” Zulfiqar Ali v The State (1993 SCMR 2046) “It is by now well settled that the maxim falsus in uno falsus in omnibus has no universal application and the Courts can sift the grain from the chaff and convict those accused whose guilt is established beyond any doubt and can acquit those whose involvement is not free from doubt.” Criminal Miscellaneous Application No. 200 of 2019 16 Irshad Ahmad and others v The State and others (PLD 1996 SC 138) “Even otherwise maxim “falsus in uno falsus in omnibus” has all along been discarded by the superior Courts of this country. In order to reach the truth "the grain has to be sifted from the chaff" in each case in the light of its own particular facts.” Saad Saood Jan, J. stated in his additional note that “As regards the extension of the maxim falsus in uno falsus in omnibus to the appreciation of evidence I am not sure if it stands totally discharged. There can be no doubt that a witness who deliberately speaks a lie or withholds truth on a material fact which should be known to him seriously compromises his credibility and it would be unsafe to rely upon his testimony alone to convict an accused person. However, there is always a possibility that on certain other facts in issue he may have spoken the truth; but before a part of his statement can be acted upon there must be some indication in the ambient circumstances or in the other evidence on record which lends assurance that he could not have lied with regard to that part. But for such assurance his whole statement has to be treated as suspect and not worthy of credit.” Zia Mahmood Mirza, J. observed in his additional note that “As regards the principle embodied in the maxim “falsus in uno falsus in omnibus” or to put it somewhat differently the rule that the integrity/credibility of a witness is indivisible, it has almost invariably been held by the superior Courts of this country that it has no universal application and the grain has to be sifted from the chaff in each case. Late Chief Justice Muhammad Munir in the case of Ghulam Muhammad v. Crown PLD 1951 Lah. 66 did not accept the contention that since the witnesses had involved at least two men who could not have taken any part in the murders, their evidence against the other accused must for that reason alone be rejected. It was observed that “the question of questions for the Judge in such cases is how to get at the truth with that degree of certainty as is always insisted upon in criminal cases and it seems that if you can do that, the result need not be determined by any general rule.” Reference may also pertinently be made to Tawaib Khan and another v. The State PLD 1970 SC 13 wherein it was observed that the maxim “falsus in uno falsus in omnibus” has all along been discarded by the Courts in this country. Similarly, the rule that the integrity of a witness is indivisible, despite its moral virtue, has not been endorsed by the superior Courts of this country without reservations and cannot be accepted as one of universal application. In the last analysis, as stated in some of the eminent judicial decisions, “the grain has to be sifted from the chaff” in each case, in the light of its own particular circumstances”. Again in Bakka v. The State 1977 SCMR 150 this Court observed that “the principle falsus in uno falsus in omnibus has long since ceased to be applied by the Courts in this country, and they have always endeavoured to separate the grain from the chaff”. Similar view was taken by this Court in Khairu and another v. The State 1981 SCMR 1136 wherein it was held that the rule “falsus in uno falsus in omnibus” “is not applicable for discarding the evidence of the witnesses as a whole and hence so much of the evidence which is credible can be accepted.’ This view was reiterated in Ziaullah v. Criminal Miscellaneous Application No. 200 of 2019 17 The State 1993 SCMR 155 holding that the rule “falsus in uno falsus in omnibus” is no longer applicable and not unoften the Court has to sift the grain from the chaff”. Reference may usefully be made to Ghulam Sikandar v. Mamaraz Khan PLD 1985 SC 11 where this Court while examining the aforenoted principle observed that a rule has since been developed in Pakistan that where a witness is found to have falsely implicated one accused person, ordinarily he would not be relied upon with regard to the other accused in the same occurrence, but if the testimony of such a witness is corroborated by very strong and independent circumstances regarding the other, reliance might then be placed on the witness for convicting the other accused.” Muhammad Ahmad and another v The State and others (1997 SCMR 89) “Needless to point out that it is by now a settled preposition that the maxim falsus in uno falsus in omnibus has no universal application and not unoften the grain has to be sifted from the chaff. Refer Khairu and another v. The State (1981 SCMR 1176).” Nazeer Ahmad alias Nazeera v The State (1998 SCMR 1768) “… falsus in uno falsus in omnibus (false in one false in all), is no more operative and the rule of sifting the chaff from the grain is to be applied while apprising the evidence in criminal cases.” Sardar Khan and 3 others v The State (1998 SCMR 1823) “The maxim “Falsus in uno falsus in omnibus” has not been accepted by the superior Courts in Pakistan as having universal application. Therefore, it does not, necessarily, follow that where the Court does not accept the evidence of a witness against some of the accused in a case, the Court cannot accept his evidence against the other accused. The Court often sifts the grain from the chaff while accepting the evidence of a witness against some of the accused in a case and at the same time not relying on his version against other accused in the case (see Muhammad Ahmed v. State 1997 SCMR 89 and Khairu v. State 1981 SCMR 1176).” Mir Hassan and others v State and others (1999 SCMR 1418) “In the case of Sardar Khan v. State (1998 SCMR 1823), this Court stated the following broad principles for appreciation of evidence while deciding the cases involving capital punishment: The Maxim 'falsus in uno falsus in omnibus' has not been accepted by the superior Courts in Pakistan as having universal application. Therefore, it does not, necessarily, follow that where the Court does not accept the evidence of a witness against some of the accused in a case, the Court cannot accept his evidence against the other accused. The Court often sifts the grain from the chaff while accepting the evidence of a witness against some of the accused in case and at the same time not relying on his version against other accused in the case (see Muhammad Ahmed v. State 1997 SCMR 89 and Khairu v. State 1981 SCMR 1176).” Khawand Bakhsh and others v The State and others (PLD 2000 SC 1) Criminal Miscellaneous Application No. 200 of 2019 18 “The principle of falsus in uno falsus in omnibus would not be applicable to their case because of availability of sufficient corroboratory material against them. The rule about the indivisibility of the testimony of a witness is that ordinarily if he is found to have falsely implicated an accused person, he should not be relied upon with regard to the other accused in the same occurrence, but if his testimony stands corroborated by strong and independent circumstances regarding the other, the reliance might then be placed on him for convicting the other accused. The Courts are required to separate grain from the chaff by considering whether the same tainted evidence stands corroborated from some independent and strong circumstance or evidence. The following cases may be cited where the circumstances in which the principle of falsus in uno falsus in omnibus and its applicability in Pakistan in different situations was elaborately discussed:-- (i) Tawaib Khan and another v. The State PLD 1970 SC 13, (ii) The State v. Mushtaq Ahmad PLD 1973 SC 418, (iii) Muhammad Shafi and 4 others v. The State 1974 SCMR 289, (iv) Aminullah v. The State PLD 1982 SC 429 and (v) Muhammad Nawaz v. The State 1984 SCMR 190.” Rashid Khan and another v The State (2000 SCMR 854) “In any event the contention cannot prevail as the maxim ‘falsus in uno falsus in omnibus’ does not hold the field anymore having been replaced by a more rational methodology of evaluation of evidence called ‘sifting grain from the chaff’. Reference in this context may be made to the judgments of this Court reported as Tawaib Khan v. State (PLD 1970 SC 13) and Samano v. State (1973 SCMR 162). The testimony in question can be safely believed vis-a-vis the appellant as it is amply corroborated by his aforementioned admission.” Sarfraz alias Sappi and 2 others v The State (2000 SCMR 1758) “The proposition of law in criminal administration of justice namely whether a common set of ocular account can be used for recording acquittal and conviction against the accused persons who were charged for the same commission of offence is an over- worked proposition. Originally the opinion of the Court was that if a witness is not coming out with a whole truth his evidence is liable to be discarded as a whole meaning thereby that his evidence cannot be used either for convicting accused or acquitting some of them facing trial in the same case. This proposition is enshrined in the maxim falsus in uno falsus in omnibus but subsequently this view was changed and it was held that principle enshrined in this maxim would not be applicable and testimony of a witness will be acceptable against one set of accused though same has been rejected against another set of accused facing same trial. However, for safe administration of justice a condition has been imposed namely that the evidence which is going to be believed to be true must get independent corroboration on material particulars meaning thereby that to find out credible evidence principle of appreciation of evidence i.e. sifting chaff out of grain was introduced as it has been held in the cases of Syed Ali Bepari v. Nibaran Mollah and others (PLD 1962 SC 502), Tawaib Khan and another v. The State (PLD 1970 SC Criminal Miscellaneous Application No. 200 of 2019 19 13), Bakka v. The State (1977 SCMR 150), Khairu and another v. The State (1981 SCMR 1136); Ziaullah v. The State (1993 SCMR 155), Ghulam Sikandar v. Mamaraz Khan (PLD 1985 SC 11), Shahid Raza and another v. State (1992 SCMR 1647), Irshad Ahmad and others v. State and others (PLD 1996 SC 138) and Ahmad Khan v. The State (1990 SCMR 803).” Qutab-ud-Din v The State (PLD 2001 SC 101) “As far as the principle of falsus in uno falsus in omnibus is concerned it has got no application so far as criminal justice prevailing in this country is concerned. However, the Courts are empowered to scan the evidence to reach at a conclusion as to whether the evidence furnished by a witness can be believed simultaneously against one set of accused and can be discarded against the other set of accused, however, subject to independent corroboration or particular point qua the accused against whom such evidence is to be believed. In this behalf if any authority is needed reference can be made to the case of Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11. Relevant para. from the above judgment is reproduced hereunder:-- “It is often said that the principle falsus in uno falsus in omnibus is not applicable in Pakistan. The same principle has been described in some cases, slightly differently; namely, that the testimony of an eye-witness should not be treated as indivisible although there is no consensus with regard to the later view. A contrary view has also been held. Expressed in a more direct manner a similar rule in the administration of criminal justice which is hall-mark of Islamic Jurisprudence, that when a witness has been found false with regard to the implication of one accused about whose participation he had deposed on oath the credibility of such witness regarding involvement of the other accused in the same occurrence would be irretrievably shaken. However, as a matter of convenience a rule has been developed in Pakistan since the famous case of Ghulam Muhammad v. Crown (PLD 1951 Lah. 66) propounded by late Chief Justice Muhammad Munir that where it is found that a witness has falsely implicated one accused person, ordinarily he would not be relied upon with regard to the other accused in the same occurrence. But if the testimony of such a witness is corroborated by very strong and independent circumstances regarding other the reliance might then be placed on the witness for convicting the other accused. For further and practical application of this rule the following cases can be instructive; (particularly if the principle of indivisibility of credibility laid down in the Privy Council case Muhammad Faiz Bakhsh v. The Queen (PLD 1959 PC 24) is to be ignored :-- Tawaib Khan and another v. The State PLD 1970 SC 13; The State v. Mushtaq Ahmad PLD 1973 SC 418; Muhammad Shafi and others v. The State 1974 SCMR 289; Bakka v. The State 1977 SCMR 150; Criminal Miscellaneous Application No. 200 of 2019 20 Khairu and another v. The State 1981 SCMR 1136; Ahmed etc. v. The State 1982 SCMR 1049; Aminullah v. The State PLD 1982 SC 429 and Muhammad Nawaz v. The State 1984 SCMR 190. It is to be emphasised that the sub-rule of “separating the grain from the chaff”, has been demonstrated in many cases by applying the sure test -- whether the same tainted ocular evidence has received corroboration from independent and equally strong inculpatory evidence/circumstance (sic)/accused. The afore-discussed main rule shall suffer serious change if and when it is examined in the light of the Islamic Principles. But for the time being even if the rule generally followed by the superior Courts is applied to this case it would be very essential to seek strong and independent corroboration against each one of the accused on account of various reasons discussed in the High Court judgment as also in this judgment. No such corroboration is forthcoming against Khan Beg and Maqbul Illahi. Therefore, maintaining their acquittal on this ground alone would be amply justified.” The above view has been followed in the cases (i) Khairu v. State 1981 SCMR 1136; Muhammad Ahmed v. State 1997 SCMR 89 and Mir Hassan v. State 1999 SCMR 1418.” Anwar and another v The State (2001 SCMR 1518) “We are also of the view that the principle of law “falsus in uno, falsus in omnibus” is no longer accepted by the superior Courts of this country and the Court is under a duty to sift the chaff from the grain and find out as to whether a part of the evidence is reliable and confidence inspiring.” Muhammad Zubair and another v The State (2002 SCMR 1141) “It would not be out of place to mention here that maxim ‘falsus in uno falsus in omnibus’ is not applicable in prevalent system of criminal administration of justice and moreso there is no rule having universal application that where some accused persons have not been found guilty the other accused would, ipso facto, stand acquitted because the Court has to sift the grain from the chaff. If any authority is needed reference can be made to cases titled Riaz Hussain v. The State (2001 SCMR 177) and Samano v. State (1973 SCMR 162).” Ellahi Bakhsh v Rab Nawaz and another (2002 SCMR 1842) “It is well-settled by now that the maxim “falsus in uno falsus in omnibus” has no universal application and it is bounden duty of the Court to sift the grain from the chaff. In this regard reference can be made to Khairu v. State (1981 SCMR 1136).” Umar Hayat v. The State (2007 SCMR 1296) Criminal Miscellaneous Application No. 200 of 2019 21 “This may be seen that in a case of joint liability, the Court may in the light of the rule of sifting the grain from chaff, give benefit of doubt to an accused but his acquittal may not be relevant for determining the guilt of his co-accused and Court is not obliged to acquit all accused on the basis of rule of falsus in uno falsus in omnibus which is not followed by the Courts in Pakistan.” Ghulam Mustafa v The State (2009 SCMR 916) “In our jurisprudence it is by now well established that the legal maxim falsus in uno falsus in omnibus is not a universal principle to be applied in all criminal cases. However, according to settled case-law there are exceptions and if evidence on the record warrants a doubt in the credibility of such witnesses then indeed their testimony regarding another set of co-accused is to be considered with caution and cannot be accepted without strict corroboration from other independent and credible sources. In this connection reference can be made to the case of Muhammad Nawaz v. State 1969 SCMR 132, Shafoo v. State 1968 SCMR 719 and Allah Ditta v. State PLD 2002 SC 52.” Khadim Hussain v The State (2010 SCMR 1090) “In fact a futile exercise appears to have been made to press into service the doctrine of “falsus in uno falsus in omnibus (false in one thing, false in all), which is admittedly not applicable in prevalent system of criminal administration of justice and moreso there is no rule having universally applicable that where some accused were not found guilty the other accused would ipso facto stand acquitted because the Court has to sift the grain from chaff. Samano v. State 1973 SCMR 162. There is no cavil to the proposition that the rule that the integrity of a witness is indivisible, despite its moral virtue, has not been endorsed by the superior Courts of this country without reservations and cannot be accepted as one of universal application. In the last analysis, as stated in some of the eminent judicial decisions, the grain has to be sifted from the Chaff in each case, in the light of its own peculiar circumstances Riaz Hussain v. The State 2001 SCMR 177.” Muhammad Zaman v State (2014 SCMR 749) “… mere acquittal of some of the accused statedly involved in the commission of crime by the trial Court … by extending benefit of doubt to them, will not demolish the case of the prosecution as a whole against the remaining accused … as the legal maxim “falsus in uno falsus in omnibus” will have no application in such circumstances.” Muhammad Raheel alias Shafique v The State (PLD 2015 SC 145) “Apart from that the principle of falsus in uno falsus in omnibus is not applicable in this country on account of various judgments rendered by this Court in the past and for this reason too acquittal of the five co-accused of the appellant has not been found by us to be having any bearing upon the case against the appellant.” Criminal Miscellaneous Application No. 200 of 2019 22 Muhammad Afzal v The State (2017 SCMR 1645) “We are mindful of the fact that principle of falsus in uno falsus in omnibus is not applicable in our system of administration of justice relating to criminal cases and the courts are required to sift grain from the chaff in order to reach at a just conclusion but it is well settled by now that if some accused are acquitted on the basis of same set of evidence the said evidence can be believed to the extent of the other accused facing the same trial but the courts have to be at guard and are required to look for corroborating evidence for maintaining conviction in such like cases.” Munir Ahmad and another v The State and others (2019 SCMR 79) “By now it is well settled that principle of falsus in uno falsus in omnibus is not applicable in our system designed for dispensation of justice in criminal cases and courts are required to sift grain from the chaff in order to reach at a just conclusion.” 14. It has surprised us to notice that the only case in this country in which some reasons had been recorded for holding that the rule falsus in uno, falsus in omnibus is not to be applied was the case of Ghulam Muhammad and others v Crown (PLD 1951 Lahore 66) wherein Muhammad Munir, CJ. had built an argument around the tendency in witnesses in the Province of the Punjab to mix truth with falsehood. In the said case no such tendency in the other parts of the country had been mentioned but in all the later cases the scope of the observations made by Muhammad Munir, CJ. had been extended to the rest of the country as a matter of course and without any discussion at all! Apart from that Muhammad Munir, CJ. was of the view that the job of a judge was to discover the truth whereas in our system of criminal justice discovering the truth is the job of the investigating agency and the judge is to decide as to whether the allegations being leveled against an accused person have been proved by the prosecution in accordance with the law or not. Such blurring of the distinction between the jobs of an investigator and a judge in the reasoning of Muhammad Munir, CJ. had remained unnoticed in all the subsequent cases on the subject. The said obscurity has, unfortunately, gone a long way in distorting the criminal jurisprudence in the country besides demeaning the virtue of Criminal Miscellaneous Application No. 200 of 2019 23 truth and corrupting the sacred concept of justice by extending a license to witnesses to tell lies and reducing the judge to a lie- detector sifting grain from the chaff and looking for a reason to convict an accused person on the basis of statements of witnesses on oath or solemn affirmation which statements have been established to be not “the truth, the whole truth and nothing but the truth”. Perjury is a serious offence in Pakistan 15. The Pakistan Penal Code, 1860 (PPC) contains many offences dealing with perjury and giving false testimony. The very fact that there is a whole chapter, numbered XI, dedicated to such offences amply testifies to the fact that matters relating to giving of testimony were taken very seriously by those who drafted the PPC and their continued retention in the PPC ever since reflects the will of the legislature, which is the chosen representative body of the people of Pakistan through which they exercise their authority within the limits prescribed by Almighty Allah. The following sections, listed under Chapter XI titled “Of False Evidence And Offences Against Public Justice”, highlight the fact that giving false testimony has been treated to be a very serious matter entailing some serious punishments. 191. Giving false evidence: Whoever being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, is said to give false evidence. 192. Fabricating false evidence: Whoever causes any circumstance to exist or makes any false entry in any book or record, or makes any document containing a false statement, intending that such circumstance, false entry or false statement may appear in evidence in a judicial proceeding, or in a proceeding taken by law before a public servant as such, or before an arbitrator, and that such circumstance, false entry or false statement, so appearing in evidence, may cause any person who in such proceeding is to form an opinion upon the evidence, to entertain an erroneous opinion touching any point material to the result of such proceeding, is said “to fabricate false evidence”. 193. Punishment for false evidence: Whoever intentionally gives false evidence in any stage of a judicial proceeding, or Criminal Miscellaneous Application No. 200 of 2019 24 fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine. 194. Giving or fabricating false evidence with intent to procure conviction of capital offence: Whoever gives or fabricates false evidence, intending thereby to cause, or knowing it to be likely that he will thereby cause, any person to be convicted of an offence which is capital by any law for the time being in force, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; if innocent person be thereby convicted and executed: and if an innocent person be convicted and executed in consequence of such false evidence, the person who gives such false evidence shall be punished either with death or the punishment hereinbefore described. 195. Giving or fabricating false evidence with intent to procure conviction of offence punishable with imprisonment for life or for a term of seven years or upwards: Whoever gives or fabricates false evidence intending thereby to cause, or knowing it to be likely that he will thereby cause, any person to be convicted of an offence which by any law for the time being in force is not capital, but punishable with imprisonment for life, or imprisonment for a term of seven years or upwards, shall be punished as a person convicted of that offence would be liable to be punished. 196. Using evidence known to be false: Whoever corruptly uses or attempts to use as true or genuine evidence any evidence which he knows to be false or fabricated, shall be punished in the same manner as if he gave or fabricated false evidence. 197. Issuing or signing false certificate: Whoever issues or signs any certificate required by law to be given or signed, or relating to any fact of which such certificate is by law admissible in evidence, knowing or believing that such certificate is false in any material point, shall be punished in the same manner as if he gave false evidence. 198. Using as true a certificate known to be false: Whoever corruptly uses or attempts to use any such certificate as a true certificate, knowing the same to be false in any material point, shall be punished in the same manner as if he gave false evidence. 199. False statement made in declaration which is by law receivable as evidence: Whoever, in any declaration made or subscribed by him, which declaration any Court of Justice, or any public servant or other person, is bound or authorized by law to receive as evidence of any fact, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, touching any point material to the object for which the declaration is made or used, shall be punished in the same manner as if he gave false evidence. Criminal Miscellaneous Application No. 200 of 2019 25 200. Using as true such declaration knowing it to be false: Whoever corruptly uses or attempts to use as true any such declaration, knowing the same to be false in any material point, shall be punished in the same manner as if he gave false evidence. 201. Causing disappearance of evidence of offence, or giving false information to screen offender: Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false; if a capital offence: shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; if punishable with imprisonment for life: and if the offence is punishable with imprisonment for life, or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; if punishable with less than ten years’ imprisonment: and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both. 202. Intentional omission to give information of offence by person bound to inform: Whoever, knowing or having reason to believe that an offence has been committed, intentionally omits to give any information respecting that offence which he is legally bound to give, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both. 203. Giving false information respecting an offence committed: Whoever, knowing or having reason to believe that an offence has been committed, gives any information respecting that offence which he knows or believes to be false, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. 204. Destruction of document to prevent its production as evidence: Whoever secretes or destroys any document which he may be lawfully compelled to produce as evidence in a Court of Justice, or in any proceeding lawfully held before a public servant, as such, or obliterates or renders illegible the whole or any part of such document with the intention of preventing the same from being produced or used as evidence before such Court or public servant as aforesaid, or after he shall have been lawfully summoned or required to produce the same for that purpose, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. 209. Dishonestly making false claim in Court: Whoever fraudulently or dishonestly, or with intent to injure or annoy any person, makes in a Court of Justice any claim which he knows to be false, shall be punished with imprisonment of either Criminal Miscellaneous Application No. 200 of 2019 26 description for a term which may extend to two years, and shall also be liable to fine. 211. False charge of offence made with intent to injure: Whoever, with intent to cause injury to any person, institutes or causes to be instituted any criminal proceeding against that person, or falsely charges any person with having committed an offence, knowing that there is no just or lawful ground for such proceeding or charge against that person, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both, and if such criminal proceeding be instituted on a false charge of an offence punishable with death, imprisonment for life or imprisonment for seven years or upwards, shall be punishable with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Holding that the rule falsus in uno, falsus in omnibus is inapplicable in this country practically encourages commission of perjury which is a serious offence in this country. A court of law cannot permit something which the law expressly forbids. 16. It can be seen from the analysis of the judgments mentioned above that the main reasoning given for not applying the rule relates to the social conditions prevalent in the country. It seems that because it was felt by the superior Courts that generally witnesses testifying in criminal cases do not speak the whole truth and have a tendency to exaggerate or economise with the real facts, there is a danger of miscarriage of justice in the sense that a real culprit may go scot free if a court disbelieves the whole testimony on account of reaching the conclusion that the testimony was false in some respect. With all due respect, we feel that such an approach, which involves extraneous and practical considerations, is arbitrary besides being subjective and the same can have drastic consequences for the rule of law and dispensation of justice in criminal matters. Falsus in uno, falsus in omnibus - Islamic provisions: 17. It was held in the case of Ghulam Sikandar (supra) that “Expressed in a more direct manner a similar rule in the administration of criminal justice which is hall-mark of Islamic Criminal Miscellaneous Application No. 200 of 2019 27 Jurisprudence, that when a witness has been found false with regard to the implication of one accused about whose participation he had deposed on oath the credibility of such witness regarding involvement of the other accused in the same occurrence would be irretrievably shaken. ------- The afore-discussed main rule shall suffer serious change if and when it is examined in the light of the Islamic Principles.” Adverting to the Islamic principles relevant to the issue at hand we note that the following verses of the Holy Qur’an deal with the matter of giving testimony: “And do not mix the truth with falsehood or conceal the truth while you know [it]” (Surah Al-Baqarah: verse 42) “And let not the witnesses refuse when they are called upon” (Surah Al-Baqarah: verse 282) “And do not conceal testimony, for whoever conceals it-his heart is indeed sinful” (Surah Al-Baqarah: verse 283) “O you who have believed, be persistently standing firm for Allah, witnesses in justice, and do not let the hatred of a people prevent you from being just. Be just, that is nearer to righteousness. And fear Allah; indeed, Allah is acquainted with what you do” (Surah Al-Ma’idah: verse 8) “O you who have believed, be persistently standing firm in justice, witnesses for Allah, even if it be against yourselves or parents and relatives” (Surah An-Nisa: verse135) “So follow not [personal] inclination, lest you not be just. And if you distort [your testimony] or refuse [to give it], then indeed Allah is ever, with what you do, acquainted” (Surah An-Nisa: verse 135) “And establish the testimony for [the acceptance of] Allah” (Surah At-Talaq: verse 2) “…And we will not withhold the testimony of [i.e. ordained by] Allah. Indeed, we would then be of the sinful.” (Surah Al-Ma’idah: verse106) “And avoid false statement” (Surah Al-Haj: verse 30) “And they who do not bear witness to what is false” (Surah Al-Furqan: verse 72) From the above, it can be seen that giving testimony its due importance and weight is an obligatory duty and those who stand firm in their testimonies are among the people of righteousness Criminal Miscellaneous Application No. 200 of 2019 28 and faith. Among the necessities of faith is giving truthful testimony even if against oneself or a relative. If there are no other witnesses that would enable justice to be done and there is a fear that someone’s right may be lost, it then becomes the individual responsibility of the few available witnesses to testify. Islam not only enjoins giving testimony, it also forbids concealing it because concealing evidence is something that is disapproved in Islam and detested by nature. Giving false testimony has many evils for it supports falsehood against truth and promotes injustice and aggression against justice. It also effaces fairness and equity and poses danger to public safety and security. 18. According to the corpus of traditions of the Holy Prophet (Peace Be Upon Him), false testimony is one of the greater sins and the following Ahadith demonstrate the significance attached to giving true testimony: It was narrated by Hazrat Anas (RA) that the Prophet (PBUH) was asked about the great sins. He said, they are (1) To join others in worship with Allah; (2) To be undutiful to one's parents; (3) To kill a person (which Allah has forbidden to kill) (i.e. to commit the crime of murdering) and (4) to give a false witness.8 It was narrated by Hazrat Abdullah (RA) that the Prophet (PBUH) said if somebody takes a false oath in order to get the property of a Muslim (unjustly) by that oath, then Allah will be angry with him when he will meet Him.9 “To testify falsely tantamounts to polytheism.” It is mentioned in Tafsir Abdul Al-Fath Razi that the Holy Prophet (PBHU) repeated said statement thrice and then quoted verse No. 30 of Surah Al- Haj stating that “… And avoid false statement.” 19. The Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 deals with the offence of Qazf, which has been defined by virtue of section 2 of the said Ordinance as: “Whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes an 8 The Translation of the Meanings of Sahih Al-Bukhari (Arabic-English), Volume III, Dr. Muhammad Muhsin Khan (Islamic University, Al-Medina Al- Munawwara), 4th Edition, Kazi Publications, page 499 9 The Translation of the Meanings of Sahih Al-Bukhari (Arabic-English), Volume III, Dr. Muhammad Muhsin Khan (Islamic University, Al-Medina Al- Munawwara), 4th Edition, Kazi Publications, page 515 Criminal Miscellaneous Application No. 200 of 2019 29 imputation of ‘zina’ concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm the reputation, or hurt the feelings, of such person, is said except in the cases hereinafter excepted, to commit ‘qazf’.” The Holy Qur’an while dealing the offence of Qazf ordains that: “And those who accuse chaste women and then do not produce four witnesses - lash them with eighty lashes and do not accept from them testimony ever after. And those are the defiantly disobedient” (Surah Al-Noor: verse 4) “And those who accuse their wives [of adultery] and have no witnesses except themselves - then the witness of one of them [shall be] four testimonies [swearing] by Allah that indeed, he is of the truthful” (Surah Al-Noor: verse 6) “And the fifth [oath will be] that the curse of Allah be upon him if he should be among the liars” (Surah Al-Noor: verse 7) “But it will prevent punishment from her if she gives four testimonies [swearing] by Allah that indeed, he is of the liars” (Surah Al-Noor: verse 8) “And the fifth [oath will be] that the wrath of Allah be upon her if he was of the truthful” (Surah Al-Noor: verse 9) The verses reproduced above highlight the importance Islam places on the requisite standard of evidence to be achieved. It can be seen that the Holy Qur’an puts a great emphasis upon the need to meet the requisite standard of evidence, so much so that for a person levelling the allegation of Zina but not meeting the given standard, it not only provides for a penal punishment, but also for withdrawal of such a person’s civic right to give evidence in all matters of his life. 20. Article 2 of the Constitution of the Islamic Republic of Pakistan, 1973 declares that “Islam shall be the State religion of Pakistan.” Clause (1) of Article 227 of the Constitution mandates as follows: “All existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah, in this part referred to as the Injunctions of Islam, and no law shall be enacted which is repugnant to such Injunctions.” Criminal Miscellaneous Application No. 200 of 2019 30 According to Article 189 of the Constitution “Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other courts in Pakistan”. Declaring by this Court that the rule falsus in uno, falsus in omnibus is inapplicable in Pakistan is enunciation of a principle of law and has a binding effect. If inapplicability of that rule militates against the Injunctions of Islam and if such inapplicability cannot be enacted by the Parliament on account of its repugnance to the Injunctions of Islam then this Court may not be in a position to introduce such inapplicability through an enunciation of a principle of law or to continue with the same any more. A court of law cannot grant a licence to a witness to tell lies or to mix truth with falsehood and then take it upon itself to sift grain from chaff when the law of the land makes perjury or testifying falsely a culpable offence. A court also has no jurisdiction to lay down a principle of law when even the Parliament is expressly forbidden by the Constitution from enacting such a principle as law. The inapplicability of this rule in Pakistan was introduced by Chief Justice Muhammad Munir in the year 1951 at a time when Article 227 of the Constitution was not in the field but after introduction of the said constitutional prohibition the enunciation of law by his lordship in this field, like the infamous doctrine of necessity introduced by his lordship in the constitutional field, may not hold its ground now, as already predicted and foreseen by this Court in the case of Ghulam Sikandar (supra) in the following prophetic words: “Expressed in a more direct manner a similar rule in the administration of criminal justice which is hall-mark of Islamic Jurisprudence, that when a witness has been found false with regard to the implication of one accused about whose participation he had deposed on oath the credibility of such witness regarding involvement of the other accused in the same occurrence would be irretrievably shaken. ------- The afore- discussed main rule shall suffer serious change if and when it is examined in the light of the Islamic Principles.” 21. We may observe in the end that a judicial system which permits deliberate falsehood is doomed to fail and a society which tolerates it is destined to self-destruct. Truth is the foundation of Criminal Miscellaneous Application No. 200 of 2019 31 justice and justice is the core and bedrock of a civilized society and, thus, any compromise on truth amounts to a compromise on a society’s future as a just, fair and civilized society. Our judicial system has suffered a lot as a consequence of the above mentioned permissible deviation from the truth and it is about time that such a colossal wrong may be rectified in all earnestness. Therefore, in light of the discussion made above, we declare that the rule falsus in uno, falsus in omnibus shall henceforth be an integral part of our jurisprudence in criminal cases and the same shall be given effect to, followed and applied by all the courts in the country in its letter and spirit. It is also directed that a witness found by a court to have resorted to a deliberate falsehood on a material aspect shall, without any latitude, invariably be proceeded against for committing perjury. 22. The office of this Court is directed to send a copy of this order to the Registrars of all the High Courts in the country with a direction to send a copy of the same to every Judge and Magistrate within the jurisdiction of each High Court handling criminal cases at all levels for their information and guidance. (Asif Saeed Khan Khosa) Chief Justice (Mazhar Alam Khan Miankhel) Judge (Sajjad Ali Shah) Judge Islamabad March 04, 2019 Approved for reporting. Arif

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE GULZAR AHMED, C.J. MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CRIMINAL MISCELLANEOUS APPLICATIONS NO. 365-L/2020 AND 96-L/2021 IN/AND JAIL PETITION NO.491 OF 2017 (Compromise – Against the judgment dated 17.05.2017 of the Lahore High Court, Lahore passed in Capital Sentence Reference No.29-T/2014 and Criminal Appeal No.1506/2014) Muhammad Akram …Applicant(s)/Petitioner(s) Versus The State …Respondent(s) For the Applicant(s)/ Petitioner(s): Mr. Qamar Pervaiz Zia, ASC Mian Ghulam Hussain, AOR For the State: Mr. Muhammad Jaffar, Addl.P.G. Punjab Date of Hearing: 07.10.2021 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Petitioner Muhammad Akram was tried by the learned Anti Terrorism Court-II, Gujranwala, pursuant to case registered vide FIR No. 280/2013 dated 26.06.2013 offence under Sections 302/324/353/337-D PPC read with Section 6/7 of the Anti Terrorism Act, 1997, at Police Station Khiyali, District Gujranwala. As per the contents of the crime report the petitioner has committed the murder of Mst. Sidra Nazir, his wife, and caused firearm injuries to Umar Farooq, Constable. The learned Trial Court after framing the charge found the allegation against the petitioner to be true and vide judgment dated 03.07.2014 convicted and sentenced the petitioner as under:- (i) Under Section 353 PPC Awarded sentence for imprisonment of 02 years RI alongwith fine of Rs.2000/-, in case of default to further undergo six months SI. Crl.M.As.No.365-L/2020 & 96-L/2021 in/and J.P.No.491/2017 -: 2 :- (ii) Under Section 337-D PPC Awarded sentence for imprisonment of 05 years RI alongwith payment of Arsh which shall be 1/3rd of Diyat of schedule of that year to be paid to Umar Farooq injured PW. (iii) Under Section 324 PPC Awarded sentence for imprisonment of 05 years RI alongwith fine of Rs.25000/-, in case of default to further undergo six months SI. (iv) Under Section 302(b) PPC Awarded sentence of death. (v) Under Section 7 of the Anti Terrorism Act, 1997 Awarded sentence of death alongwith fine of Rs.25000/- or in default whereof to further undergo six months SI. All the sentences were directed to run concurrently. Benefit of Section 382-B Cr.P.C. was also extended. 2. The judgment of the Trial Court was assailed before the learned High Court in appeal which was adjudicated upon by the learned Division Bench of the Lahore High Court and while maintaining the conviction under substantive offence under Section 302(b) PPC and Section 7(a) of the Anti Terrorism Act, 1997, it reduced the sentence of death into imprisonment for life, however, as the learned Trial Court had not directed for payment of compensation while awarding sentence under Section 302(b) PPC, it also directed for payment of compensation amounting to Rs.100,000/- to the legal heirs of the deceased under Section 544- A Cr.P.C. or in default whereof to further undergo SI for six months. All the other sentences were, however, maintained and ordered to run concurrently. Benefit of Section 382-B Cr.P.C was also extended to the petitioner. 3. The facts of the case as given in the judgment of the learned Trial Court are as under:- “Succinctly, the facts of the case enumerated in the complaint are that Sifat Hussain ASI, Police Station Khiyali on 26.06.2013 got lodged complaint Exh.PA on basis of which FIR Exh.PA/1 was registered by Abdul Hameed HC (PW1) that on 26.06.2013 at about 2.05 PM, Hanif Hussain ASI alongwith Muhammad Younas HC, Umar Farooq, Muhammad Arif constables armed with SMG rifles, Tehseen Raza constable armed with SMG, Muhammad Yousaf PQR, Rehana Kausar lady constable in a case FIR No.251/13 dated 13.06.2013 u/s 380 PPC registered at Police Station Khiyali, against accused under arrest namely Mst. Sidhra Crl.M.As.No.365-L/2020 & 96-L/2021 in/and J.P.No.491/2017 -: 3 :- Nazir daughter of Nazir Ahmad (wife of Muhammad Akram accused), caste Arian, R/o Khiyali, Gujranwala were going to be produced before the Illaqa magistrate on an official vehicle No.2461-GAW driven by Shahid Maqbool constable, as soon the vehicle reached in front of office of Zong Mobile phone company because vehicle could not enter in the Police Station building, Mst. Sidhra Nazir was going to be boarded in the official vehicle to be taken to the court of Illaqa Magistrate and complainant was going to take seat in the vehicle, suddenly husband of Sidhra Nazir namely Muhammad Akram complainant of case FIR No.251/13 came while running from the other side of the road from fodder market and took out his pistol from his folder and made firing on his wife namely Sidhra Nazir resulting into serious injuries sustained by Sidhra Nazir and Umar Farooq constable who on sustaining the injuries fell on the ground. Muhammad Akram accused with the help of other police officials was apprehended at the spot alongwith .30 bore pistol and was sent to the Police Station in custody of Muhammad Arif constable. Regarding recovery of pistol .30 bore without having any license by Muhammad Akram, a separate case u/s 13/20/65 Arms Ordinance was registered. The complainant alongwith other police officials took the injured to the hospital on official vehicle where Sidhra Nazir succumbed to the injuries in the hospital while Umar Farooq was provided medical treatment.” 4. During the pendency of the Jail Petition, Criminal Miscellaneous Application Nos. 365-L/2021 & 96-L/2021 were filed for acquittal of the petitioner on the basis that the compromise has been arrived at between the parties with the intervention of elders of the locality. This Court vide orders dated 11.11.2020 and 16.03.2021 sought report from the learned Sessions Judge, Gujranwala about the genuineness or otherwise of the compromise with a specific direction to ensure that the interest of the minors, if any, be safeguarded. The reports have been received, which show that the deceased Mst. Sidra Nazir was survived by her minor children, namely, (i) Sabir Hussain, (ii) Maryam Bibi, (iii) Zainab Bibi whereas the husband of the deceased Mst. Sidra Nazir was excluded from consideration. The children of the deceased are being brought up by Mst. Zahida Parveen, who was duly appointed by the Court as the Guardian. The reports further show that the guardian of the minor children has entered into a compromise with the petitioner on their behalf and has forgiven him in the name of Allah Almighty and also waived their right of Qisas. The interest of the minors has been safeguarded by purchasing Defence Savings Certificates Crl.M.As.No.365-L/2020 & 96-L/2021 in/and J.P.No.491/2017 -: 4 :- amounting to Rs.28,00,000/- in their names which was equivalent to their shares of Diyat. It is note worthy that the injured PW Umar Farooq, who happens to be a police constable also has forgiven the petitioner by waiving his right to collect Arsh equivalent to 1/3rd of Diyat. These Criminal Miscellaneous Applications were earlier fixed on 05.10.2021, however, an opportunity was provided to the learned counsel for the parties to assist the Court on the point whether a compromise can be affected between the parties when the petitioner has been convicted and sentenced under the provision of Section 7 of the Anti Terrorism Act, 1997. 5. Today, during the course of proceedings before this Court, learned counsel for the petitioner contended that the occurrence has taken place as an outcome of personal vendetta and the provisions of Sections 6 and 7 of the Anti Terrorism Act are not applicable. Contends that the petitioner has committed the murder of his wife due to very specific reason that she was arrested in a case of theft and she was being produced for physical remand which could not be tolerated by the petitioner and under the impulses of ‘ghairat’ he has committed the murder. Contends that the injury caused to the police personnel was not intended to, rather the same was inflicted as per chance with no intent to commit any offence against law enforcing agencies. Lastly, it has been argued that the substantive offence has already been compromised between the parties, therefore, this Court can ignore the provisions of Section 7 of the Anti Terrorism Act especially when the injured PW has forgiven the right of arsh in the name of Allah Almighty. 6. On the other hand, learned Law Officer contended that no doubt the compromise has been affected between the parties but a sense of fear and insecurity was sensed by the members of the society due to act of the petitioner, therefore, the provision of Section 6 of the Anti Terrorism Act punishable under Section 7 thereof was fully applicable and as such the same cannot be ignored when the learned High Court has already taken a lenient view while converting the sentence of death into imprisonment for life. Crl.M.As.No.365-L/2020 & 96-L/2021 in/and J.P.No.491/2017 -: 5 :- 7. We have heard learned counsel for the parties and gone through the record. There are two aspects of the case, which need our consideration: (i) whether compromise in the substantive offence i.e. Section 302(b) is genuine, and (ii) whether Section 6 of the Anti Terrorism Act punishable under Section 7 thereof was applicable in the instant case. As far as the first aspect of the case is concerned, there is no denial to this fact that the compromise between the parties has been affected with the intervention of the elders of the locality which fact is reported to be genuine by the learned Sessions Judge while making his report dated 25.11.2020. As far as the interest of the minors is concerned, it is clearly described in the report that Defence Saving Certificates to the tune of Rs.28,00,000/- have been purchased against the name of three minors of the deceased as share of their Diyat, as such the legal formalities of the law are fully adhered to. Hence the law of the land is fully applied as far as the first aspect of the case is concerned. So far as the question as to whether the provisions of Section 6 of the Anti Terrorism Act punishable under Section 7 thereof are applicable in the given circumstances, it is noteworthy that the petitioner had committed the crime due to very specific reason. It is nowhere mentioned that the petitioner is a person of desperate character having any previous antecedents of criminal activities, rather the offence was committed under the impulses of ‘ghairat’. The possibility cannot be ruled out that the petitioner could not afford the insult incurred because of the act of his wife and he has lost control and under the impulses of disgrace and humiliation he opted to commit the crime. The injury caused to the police personnel was not in direct conflict with the law enforcing agencies, rather as Mst. Sidra Nazir was in custody of the police constable the injury caused by him could be result of misdirected shot due to heat of passions. In United Kingdom, the framers of the law enacted an Act called “Homicide Act, 1957” in which they have dealt with such like situation under the ‘dictum’ ‘diminished liability’. 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 Crl.M.As.No.365-L/2020 & 96-L/2021 in/and J.P.No.491/2017 -: 6 :- to an alleged violation, which is committed due to love and affection and injury to reputation. The doctrine of diminished responsibility provides a mitigating defense in cases in which the mental disease or defect is not of such magnitude as to exclude criminal responsibility altogether. It is most frequently asserted in connection with murder cases requiring proof of a particular mental state on the part of the accused. While drawing analogy from said legislation when there is no allegation available on the record that the petitioner intended to cause injury to the police personnel stricto sensu and his only aim was to take the life of his wife under the impulses of ‘ghairat’, the situation has become altogether different. Even otherwise, the learned Trial Court had convicted the petitioner under Sections 337-D & 324 PPC for causing injury on the person of the police personnel and the said injured has also affected a compromise with the petitioner and has forgiven him and has also waived his right to collect Arsh equivalent to 1/3rd of Diyat. In the case reported as Ghulam Hussain Vs. The State (PLD 2020 SC 61), this Court has categorically held that only creating fear or insecurity in the society is not by itself terrorism unless the motive itself is to create fear or insecurity in the society and not when fear or insecurity is just a byproduct, a fallout or an unintended consequence of a private crime and mere shock, horror, dread or disgust created or likely to be created in the society does not transform a private crime into terrorism. In Farooq Ahmed Vs. The State (2020 SCMR 78), the accused had committed murder of a person in the premises of Sessions Court due to previous enmity and was convicted and sentenced under Section 302(b) PPC and Section 7 of the Anti Terrorism Act to death. However, during the pendency of his appeal before this Court, the parties entered into a compromise and this Court while accepting the compromise under Section 302 PPC, set aside the conviction and sentence of the petitioner under Section 7 of the Anti Terrorism Act on the ground that murder was committed due to personal enmity and the petitioner/convict did not want to create fear, insecurity or terror in the society. The same was the case in Dilawar Mehmood Vs. The State (2018 SCMR 593) wherein the murder was committed in a cattle market due to previous enmity and he was convicted and Crl.M.As.No.365-L/2020 & 96-L/2021 in/and J.P.No.491/2017 -: 7 :- sentenced to death by the Trial Court under Section 302(b) PPC read with Section 7 of the Anti Terrorism Act, which was reduced to imprisonment for life by the High Court. During the pendency of the jail petition filed by the accused before this Court, the parties entered into a compromise and compounded the offence under Section 302(b) PPC. So far as the conviction and sentence of the petitioner under Section 7(a) of the Anti Terrorism Act is concerned, this Court set aside the same on the ground that the occurrence was the result of previous enmity between the parties, therefore, there was no element of terrorism. In view of the facts and circumstances narrated above, we are of the view that the provisions of Section 6 of the Anti Terrorism Act are not attracted in the present case, therefore, the conviction and sentence recorded under Section 7 of the Anti Terrorism Act is set aside. Now that when the parties have compromised the offence under Sections 302(b)/337-D/324 PPC and we have set aside the conviction and sentence under Section 7 of the Anti Terrorism Act, the only punishment left to the petitioner is under Section 353 PPC, which is not compoundable. However, we have been informed that the petitioner has already undergone the period of his sentence of 2 years RI. 8. For what has been discussed above, Criminal Miscellaneous Applications No. 365-L/2020 & 96-L/2021 are allowed with the result that Jail Petition No. 491/2017 is converted into appeal and partly allowed. The petitioner is acquitted of the charge of murder and of causing injury on the person of Umar Farooq constable. He shall be released from jail forthwith unless detained/required in any other case. CHIEF JUSTICE JUDGE JUDGE Announced on 08.11.2021 at Islamabad. Approved For Reporting Waqas Naseer

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE GULZAR AHMED, HCJ MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL CRIMINAL MISC. APPLICATION NO.459 OF 2020 IN CRIMINAL PETITION NO.350 OF 2020. (Against the order dated 07.04.2020 passed by the Islamabad High Court, Islamabad in Criminal Original No.70-W/2020 in Writ Petition No.3800 of 2019). Tanveer Ahmed Qureshi, Secretary Ministry of National Health Services, Regulations & Coordination, Government of Pakistan, Islamabad. …Petitioner(s) Versus Brig. (R) Dr. Hafizuddin Ahmed Siddiqui, former registrar, Pakistan Medical & Dental Council, Islamabad, etc. …Respondent(s) In attendance: Mr. Khalid Javed Khan, AGP. Ch. Aamir Rehman, Addl. AGP. Dr. Tanveer Ahmed Qureshi, Secy. M/o NHSR&C. Mr. Asif Sohail, Director Legal. Mr. G. M. Jhakrani, Dy. Dir. Legal. Ch. Akhtar Ali, AOR. For Respondent No.1: Hafiz Arfat Ahmed Ch., ASC. Syed Rafaqat H. Shah, AOR. a/w Brig. (R) Dr. Hafizuddin Ahmed Siddiqui. Date of Hearing: 15.04.2020. ORDER The petitioners have challenged an order of the Islamabad High Court directing the Federation to allow the Respondent Brig. (Retd) Dr. Hafizuddin Ahmed Siddiqui to assume control of PM&DC and taking immediate steps for compliance on a contempt petition filed by Respondent No.1. The matter has now been fixed for hearing on 16.04.2020. The learned Attorney General for Pakistan submits that the order has been passed despite the fact that an application moved by the Federation pointing out that the Crl.M.A.459/20 etc 2 Respondent cannot be treated as an incumbent in the Office of Registrar PM&DC owing to the fact that the very law under which the appointment has been made has already been repealed is pending before the Islamabad High Court. He further points out that in light of “Zahid Waheed Khan. v. Crystal Chemical Limited” (2006- YLR-2577), despite ex-facie illegality of the said order, the same cannot be challenged in an Intra Court Appeal, as the same is not a final order. He further submits that unless this Court interferes in the matter in the interest of justice and in exercise of its powers under Article 187 of the Constitution, multiplicity of litigation would ensue in addition to serious legal complications need to be addressed on urgent basis owing to the importance of PM&DC and its work as a regulator which has come to a stand still on account of recent rounds of litigation. 2. In view of the above and in order to examine the legal questions involved in the matter, the application is allowed, the office objection is overruled. Crl. P. No.350 of 2020. 3. The learned Attorney General for Pakistan submits that while directing the Federal Government to allow the former Registrar of PM&DC appointed under the Repealed PM&DC Ordinance, 2019 to assume the control of office of Registrar the learned High Court acted illegally without jurisdiction and in contravention of an unambiguous and unequivocal judgment passed by this Court on this very subject reported as “Pakistan Medical & Dental Council through President & 3 others. v. Muhammad Fahad Malik & 10 others” (2018 SCMR 1956). He further submits that the appointments made under an Ordinance do not survive after repeal Crl.M.A.459/20 etc 3 of the Ordinance unless specifically saved by any provision of subsequent legislation. He therefore maintains that while restoring the Respondent No.1 in contempt proceedings the learned High Court not only exceeded its jurisdiction but omitted to follow the principle of law settled by this Court in “Province of the Punjab through Secretary, Health Department. v. Dr. S. Muhammad Zafar Bukhari” (PLD 1997 SC 351). He maintains that there is neither legal basis nor lawful justification. 4. We have confronted the learned ASC for Respondent No.1 with a question how the Respondent could claim to be the Registrar of PM&DC when the law under which he was appointed stands repealed. He frankly concedes that there is no legal basis for such claim. He however submits that in line with the earlier order of this Court, he would approach the Council for redressal of his grievance, if any and that he will not press his contempt petition presently pending before the Islamabad High Court. In view of such conceding statement of the learned counsel for the Respondent, who is also present in Court in person, we do not feel the necessity to proceed further in the matter. 5. This Criminal Petition is therefore converted into an appeal and allowed. The impugned order of the High Court dated 07.04.2020 is accordingly set aside. In view of the statement of learned ASC for Respondent No.1, the Contempt Petition pending before the Islamabad High Court shall also stand dismissed. Crl. M. A. No.468 of 2020. 6. In view of the fact that the Criminal Petition has been converted into an appeal and allowed by us today, this application has become infructuous and is accordingly disposed of. Crl.M.A.459/20 etc 4 Crl. M. A. No.460 of 2020. 7. The learned Attorney General for Pakistan has brought to our notice a judgment of the Islamabad High Court dated 11.02.2020 passed in Writ Petition No.3800 of 2019 through which the learned High Court has set aside Pakistan Medical Commission Ordinance, 2019. Further, the learned High Court has directed that the ad-hoc Council constituted by this Court vide order dated 21.01.2018 passed in Civil Appeals No.3 and 4 of 2014 and other connected petitions to perform the functions and run the affairs of PM&DC in accordance with law. 8. We notice that as per orders passed by this Court the Council constituted by this Court comprised of following Members: 1. Mr. Justice (Retd) Mian Shakirullah Jan, former Judge of Supreme Court of Pakistan (President). 2. The Attorney General for Pakistan or his nominee (Member) 3. Federal Secretary Health, Islamabad. (Member) 4. Surgeon General of Pakistan Armed Forces (Member) 5. Vice Chancellor, The National University of Medical Sciences (Member) 6. Vice Chancellor, University of Health Sciences, Lahore (Member) 7. Vice Chancellor, Jinnah Medical University, Karachi (Member) 8. Vice Chancellor, Khyber Medical University, Peshawar (Member) 9. Principal, Bolan Medical College, Quetta (Member) 10. Principal, De’Montmorency College of Dentistry, Lahore (Member) 11. Professor Dr. Faisal Masood, Member (since deceased). 9. It appears that the ad-hoc Council constituted by this Court ceased to exist after promulgation of PM&DC Ordinance, Crl.M.A.459/20 etc 5 2019. The learned Attorney General for Pakistan submits that in view of the judgment of the Islamabad High Court, the same needs to be reconstituted for various reasons. This cannot be done by the High Court because the Council was constituted under specific orders of this Court. Therefore, this Court may, if it considers appropriate reconstitute the Commission. Further, on account of afflux of time various changes have occurred and subsequent events have overtaken the situation which need to be considered by this Court in the interest of better and effective working of the Commission. He submits that PM&DC is the main regulator of the medical profession and medical education. It is imperative that it should run effectively efficiently and smoothly. He adds that there was no Medical University in Balochistan and this Court may now consider inclusion of Vice Chancellor, Bolan University of Medical and Health Sciences as Member of the ad-hoc Committee instead of the Principal Bolan Medical College. Furthermore, in order to ensure representation to the Federal Capital Territory, the Court may also include Vice Chancellor, Shaheed Zulfiqar Ali Bhutto Medical University, Islamabad in the Commission. 10. He submits that a new President of the ad-hoc Council may be nominated by this Court. Federal Government considers it necessary, owing to the work and the importance of PM&DC in addressing various pressing issues faced by it including huge backlog of pending registration of large number of doctors, dealing with matters involving admissions, admission policies, registration, renewals of registration of Private Medical Colleges etc which have been pending since long that a whole time Chairman should be appointed who may be able to devote his full time and energy run Crl.M.A.459/20 etc 6 the Council effectively. The sheer quantum of work requires a whole time Chairman who may be able to deal with the overwhelming workload and backlog which needs to be cleared quickly. He further submits that the Hon’ble Chairman originally appointed by this Court has rendered outstanding and meritorious services which are greatly appreciated and acknowledged. However, owing to his other pressing engagements as Chairman, National Industrial Relations Commission as well as the Member, Law & Justice Commission of Pakistan which require his whole time attention, it would be unfair and unreasonable to burden him with further responsibilities of a pressing nature. On being contacted by the office, the Hon’ble President of the Council has also expressed his unwillingness to continue any further because of his other engagements mentioned above which take up most of his available time. We find that he has performed his duties diligently efficiently and with grace and dignity and implemented all orders passed by this Court in letter and spirit. In this view of the matter and respecting the wishes of the current Chairman and with deference to the reasons given by him as well as the learned Attorney General for Pakistan we allow the request. 11. Accordingly, the Council is reconstituted in the following manner: 1. Mr. Justice Ejaz Afzal Khan, (former Judge of the Supreme Court of Pakistan) President. 2. The Attorney General for Pakistan or his nominee (Member). 3. Federal Secretary Health, Islamabad. (Member) 4. Surgeon General of Pakistan Armed Forces (Member). 5. Vice Chancellor, The National University of Medical Sciences (Member). 6. Vice Chancellor, University of Health Sciences, Lahore (Member). Crl.M.A.459/20 etc 7 7. Vice Chancellor, Jinnah Sindh Medical University, Karachi (Member). 8. Vice Chancellor, Khyber Medical University, Peshawar (Member). 9. Vice Chancellor Bolan University of Medical and Health Sciences, Quetta (Member). 10. Vice Chancellor, Shaheed Zulfiqar Ali Bhutto Medical University, Islamabad (Member). 11. Principal De’Montmorency College of Dentistry, Lahore (Member). 12. The Council shall meet as soon as possible. The Attorney General Office shall with prior approval of President of the Council intimate the date of its first meeting to all concerned. The President shall in consultation with the Council appoint a Registrar of the Council. All existing record of PM&DC shall be handed over to the authorized representative of Secretary Health by Respondent No.1. The said Secretary shall provide full assistance in convening and holding of meetings of the Council. All functionaries of PM&DC who may be in possession/custody of any record of PM&DC shall also handover all relevant records to authorized representatives of the concerned Ministry or a person nominated by the Chairman of the Commission. The application is disposed of in the afore-noted terms. Chief Justice Judge Judge Announced in open Court at Islamabad on ______________ Judge ‘Not Approved For Reporting’ Zubair/*

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) Present: Mr. Justice Iftikhar Muhammad Chaudhry, CJ Mr. Justice Ijaz Ahmed Chaudhry Mr. Justice Gulzar Ahmed Crl. Misc. A.No. 486 of 2010 in Crl.A.No.22 of 2002 (Implementation proceedings of judgment of this Court, passed in NRO case) And Suo Motu Case No.4 of 2010 and CMAs No.1080, 1238, 1239 1253, 1254, 3222, 3242, 3545, 3873 & 4118 of 2010 Suo Motu Action regarding appointment of convicted person namely, Ahmed Riaz Sheikh (NRO Beneficiary) as Additional Director, FIA Adnan A. Khawaja Appelant (s) VERSUS The State Respondent(s) For the Federation : Mr. Muneer A. Malik, Attorney General for Pakistan Mr. Dil Mohammad Alizai, DAG For the NAB : Mr. K.K.Agha, P.G Mr. Akbar Tarar, Additional P.G. For Ahmed Riaz Sheikh & Adnan A. Khawaja : Dr. A. Basit, Sr. ASC For Ismail Qureshi & Khalid Ikhlaq Gillani : Ch. Akhtar Ali, AOR For Malik Qayyum : Mr. Wasim Sajjad, Sr. ASC For Ahsan Raja : Raja Muhammad Ibrahim Satti, Sr. ASC Date of hearing : 26.06.2013 ORDER We have taken this case for hearing and posed a question to learned counsel appearing for parties as well as Crl.M.A.No.486/2010 in Crl.Crl.A.No.22/02 and SMC No.4/2010 etc. - 2 - the learned Prosecutor General, NAB about the functioning of the institution of NAB in absence of Chairman in terms of Section 34-A of NAO as his delegatees i.e. Regional DGs etc., are responsible for monitoring the investigations of the cases. Mr. K. K. Agha learned Prosecutor General, NAB stated that a learned five Members Bench of this Court vide its judgment dated 28.05.2013, passed in Const.P.No.73 of 2011 (Ch. Nisar Ali Khan vs. Federation of Pakistan etc.), had allowed 30 days time to the Government to make fresh appointment without further loss of time, therefore, appointment of the Chairman, NAB has to take place on or before 30.06.2013. On this, we have communicated to the learned Attorney General through the learned Deputy Attorney General that he should make statement after soliciting instructions from the concerned functionaries. Learned Attorney General appeared and stated that consultation process for the appointment of Chairman, NAB, according to NAO, has commenced, which is likely to be completed as early as could be possible. In such view of the matter without dilating upon the merits of the instant case, we postpone its hearing. 2. Learned Attorney General for Pakistan has filed Criminal Miscellaneous Application No.374/2013 along-with a letter dated 5th November, 2012 followed by the letter dated Crl.M.A.No.486/2010 in Crl.Crl.A.No.22/02 and SMC No.4/2010 etc. - 3 - 22nd November 2012 written by Justice (R) Yasmin Abbasey, the then Secretary, Govt. of Pakistan, Ministry of Law, Justice & Parliamentary Affairs, Islamabad, contents of both the letters are reproduced hereunder:- “ No.3 (156)/2007-Sol-II GOVERNMENT OF PAKISTAN Ministry of Law, Justice & Parliamentary Affairs the 5th November, 2012 Islamabad……………………………………. Attorney General Geneva Switzerland Re: PP/11105/1997 and CP 289/97 Dear Sir, This is with reference to the letter dated 22nd May 2008 addressed by Malik Mohammad Qayyum, the then Attorney General of Pakistan to Mr. Daniel Zappelli, Attorney Genera, Geneva, Switzerland. In view of the direction given by the Supreme Court of Pakistan in Paragraph 178 (copy attached as Annex-I) of its judgment dated 16th December 2009 in the case of Dr. Mobashir Hassan, reported as PLD 2010 SC 265, the aforesaid letter is hereby withdrawn and may be treated as never written and therefore, revival of requests, status and claims, is sought. This is without prejudice to the legal rights and defences of the Presidents/Heads of State which may be available under the law, constitution and international law. Yours sincerely, Sd/- Justice (R) Yasmin Abbasey Secretary” Crl.M.A.No.486/2010 in Crl.Crl.A.No.22/02 and SMC No.4/2010 etc. - 4 - No. F.3 (156)/2007-Sol-II GOVERNMENT OF PAKISTAN Ministry of Law, Justice & Parliamentary Affairs Islamabad 22nd November, 2012 Dr Nicholas Jeanding Avocate Fontanet et associes 25-Grand rue Case postate 3200 Ch 1211, Geneve 3 Switzerland Re: PP/11105/1997 and CP 289/97 and related proceedings. Dear Sir, Please refer to our instructions and the letter dated 5th November, 2012 sent to the General Attorney of Geneva, please explain the position of Government of Pakistan to the General Attorney of Geneva which is summarized hereinbelow in order to simplify the approach of the case before him. 1. At the outset I must state that the Head of State viz President of Pakistan enjoys complete and absolute protection and immunity under Article 248 (2) of the Constitution of Pakistan 1973 (copy attached as Annex-1) as well as International Law, which is neither being waived nor lifted. 2. Requests for mutual legal assistance was made by Senator Saif-ur-Rehman, the then Chairman of Ehtesab (Accountability) Bureau and Chaudhry Muhammad Farooq, the then Attorney General of Pakistan through various letters written in 1997 without permission from the Federal Government. Thus all these requests and letters stand on the same footing as those of the then Attorney General of Pakistan Malik Muhammad Qayyumm’s letter dated 22nd May 2008. Consequently all of the said requests and letters written by Senator Saif-ur-Rehman and Chaudhry Muhammad Farooq were and are illegal and have no legal effect and are hereby withdrawn by Government of Pakistan and may be treated as never have been written, keeping into view the dictum laid down by Supreme Court of Pakistan in paragraph 177 and 178 of the Judgment in the case of Dr. Crl.M.A.No.486/2010 in Crl.Crl.A.No.22/02 and SMC No.4/2010 etc. - 5 - Mobashar Hassan, dated 16th December 2009, reported as PLD 2010 SC 265 (Copy attached as Annex-II). 3. I understand the order of closing of case passed by Mr. Daniel Zappelli former Attorney General of Geneva, on 25h August 2008 has also attained finality and under Swiss Law it cannot be re-opened for several legal reasons. 4. Government of Pakistan understands that revival of status of civil party can take place only when there are pending criminal proceedings in Switzerland. Since no criminal proceedings are admittedly pending in Switzerland there are legal constraints and bar in such revival. 5. Mutual legal assistance, as explained hereinabove, was never lawfully sought and in any event necessary documents and evidence have already been transmitted by the Swiss authorities to the Government of Pakistan and as such it has served its purpose. Furthermore the legal assistance requested in 1997 has been completely executed. 6. Moreover since the Judgment was passed by the Supreme Court of Pakistan in the case of Dr. Mobashar Hassan dated 16th December, 2009, much has happened factually and legally in Pakistan in respect of both the SGS and Cotecna cases in which Government of Pakistan was a civil party in Swiss proceedings. 7. References filed by Ehtesab (Accountability) Bureau before Accountability Courts in Rawalpindi, Pakistan in SGS and Cotecna cases against Messrs A.R.Siddiqui, Asif Ali Zardar and others for which mutual legal assistance was sought by Government of Pakistan from Switzerland and in which regard Investigating Magistrate, Geneva from time to time, transmitted documents and evidence to Pakistan, have resulted in the acquittal of the main accused Mr. A.R. Siddiqui. Regarding Mr. Asif Ali Zardari the Accountability Courts have accepted that he enjoys complete and absolute immunity under Article 248 (2) of the Constitution of Pakistan, 1973. 8. Even otherwise in the judgments in both the cases, the Honourable Judges have held that Mr. Asif Ali Zardari has not done any wrong doing has not committed any act of corruption and corrupt practices and that no loss was caused to the Government of Pakistan by the award of pre- shipment. Inspection contract to SGS and Cotecna by Crl.M.A.No.486/2010 in Crl.Crl.A.No.22/02 and SMC No.4/2010 etc. - 6 - Government of Pakistan, for which all legal/codal formalities were complied with. Thus, no offence or crime has been committed in Pakistan in respect of the award of the SGS and Cotecna contracts. Consequently, as no crime has been committed in Pakistan the alleged offence of money laundering, if any, under Swiss law does not seem to be applicable or attracted. (Copies of Judgments are attached as Annex-III and IV) 9. In view of the foregoing Government of Pakistan would understand and appreciate to receive official confirmation about the inability of the Swiss authorities to revive Government of Pakistan’s status as civil party, mutual assistance and alleged claims. 10.This finally brings to an end the matters/issues that had arisen and initiated in 1997. Yours sincerely, Sd/- Justice (R) Yasmin Abbasey Secretary” 3. It is to be noted that letter dated 5th November, 2012 has been issued by the Federal Government with the approval of this Court vide order dated 14.11.2012. 4. At this stage, second letter referred hereinabove, which has been written on behalf of the Government of Pakistan after letter dated 5th November, 2012 needs no comments being self explanatory, prima facie to form the opinion and necessity felt by the then Federal Government to enter into correspondence with Dr. Nicholas Jeanding, counsel/advocate of the Federation of Pakistan. Crl.M.A.No.486/2010 in Crl.Crl.A.No.22/02 and SMC No.4/2010 etc. - 7 - 5. Reference of another correspondence between Judicial Authority, Public Ministry, Republican and Canton of Geneva and Mr. Nicholas Jeanding, attorney of the letter dated 4th February, 2013 is also necessary and relevant. He has also placed on record order of “non-entry into the subject”, dated 4th February, 2013 by the Judicial Authority of Republican Canton of Geneva, one of para relating to Abuse of Power and Ruling. For convenience same is reproduced below: - c) Abuse of Power “Swiss law establishes as a general principle the prohibition of the abuse of power, such as it arises from Article 2, Subparagraph 2 of the Civil Code. The criminal prosecution authorities are specifically required to conform thereto (CPC, Article 3, Subparagraph 2 b). In this case, the Republic of Pakistan’s procedures constitutes an abuse of power. Indeed, it consists of demanding resumption of the criminal procedure P/11105/1997, while maintaining that such resumption could not take place. It is a question of a procedure constituting venire contra facturm proprium, that is to say one of the traditional instances of an abuse of power.” RULING On these grounds, the Public Ministry: 1. Decides not to enter into the subject of the facts referred to by the procedure P/11105/1997 (CPC, Article 310, Subparagraph 1 b and 323). 2. States that the costs of proceedings shall be left to the charge of the State (CPC Articles 422 and 423, Subparagraph 1). 3. Notifies this order: -the republic of Pakistan, i.e. for it Me Nicolas Jeandin, post box 3200, 1211 Geneva 3 4. Communicates this order to: The Federal Department of Foreign Affairs Crl.M.A.No.486/2010 in Crl.Crl.A.No.22/02 and SMC No.4/2010 etc. - 8 - Geneva, 4 February 2013 The Registrar The Public Prosecutor Lella Deloche Ramos Oliver JORNOT” 6. Learned Attorney General stated that appeal against the order of the “non-entry into the subject” was maintainable within 10 days from the order noted hereinabove, relevant observation from the said order is reproduced hereinbelow: “The parties can attack the order of non-entry into the subject within the ten days before the appeal authority of recourse, that is to say the Criminal Appeal Court (CPC, Articles 310, Subparagraph 2, and 322, Subparagraph 2 and LOJ 128, Subparagraph 1). The appeal must be justified and addressed in within (CPC, Article 396, Subparagraph 1). The parties have been made aware of the fact that the costs of the appeal proceedings shall be at their expense, if their appeal is inadmissible, if they withdrawn it or if they do not win the case (CPC, Article 428, Subparagraph 1). In certain conditions, the costs of the appeal proceedings could also be charged to an appellant that had obtained a more favourable decision (CPC, Article 428, Subparagraph 2). 7. Learned Attorney General further stated that the above letter along-with the observations was not available on the official record. Further that order of non-entry into the subject was not communicated to the Government of Pakistan as per available record. He further stated that it is yet to be established that whether the entry into the subject has been communicated or not? However, vide letter dated 20th June, 2013, he has been informed by the Secretary to Crl.M.A.No.486/2010 in Crl.Crl.A.No.22/02 and SMC No.4/2010 etc. - 9 - the Prime Minister and no sooner this aspect was brought into his notice. He has authorized to the Secretary, Law and Justice & Human Rights vide letter of even date to file appeal and in pursuance whereof a local law firm M/s Python, Geneva has been engaged. He further stated that he has been instructed to bring above letters in the notice of this Court, whereas the competent authority (the Prime Minster) has already directed to conduct inquiry in this behalf as per contents of the letter dated 21.06.2013. Relevant paras are reproduced hereinbelow: - “(i) An appeal in the case shall immediately be filed before the appropriate court in Switzerland by Ministry of Law, Justice & Human Rights for which it shall engage services of a lawyer in Switzerland before the appeal period expires on 23rd June, 2013 and (ii) A Two-Member Enquiry Committee comprising of Mr. Sami Saeed, Secretary, Cabinet Division and Mr. Aftab Sultan, Director General, Intelligence Bureau, Government of Pakistan, is constituted to look into the matter of missing record and documents of this case from the Ministry of Law, Justice & Human Rights, delay in communication of decision of “the Order of Non-entry into the subject” issued by the Judicial Authority in Geneva on 04.02.2013 and subsequent delay, if any, in the offices of Ambassador of Pakistan in Switzerland and Ministry of Law, Justice & Human Rights, in communication of these facts to the Prime Minister between 13.06.2013, when it was first brought to the notice of Ambassador of Pakistan in Switzerland to 20.06.2013. The Committee shall furnish its report within a period of two weeks, positively.” 8. Let the Committee constituted by the Prime Minister return its findings and share it with us through the Crl.M.A.No.486/2010 in Crl.Crl.A.No.22/02 and SMC No.4/2010 etc. - 10 - learned Attorney General. On having received the same further appropriate proceedings as envisaged under the law shall be initiated. 9. Adjourned for a date to be fixed by office after two weeks. Chief Justice Islamabad Judge 26.06.2013 *Rabbani* Judge

IN THE SUPREME COURT OF PAKISTAN (Review Jurisdiction) PRESENT: Mr. Justice Asif Saeed Khan Khosa, CJ Mr. Justice Sardar Tariq Masood Mr. Justice Qazi Muhammad Amin Ahmed Criminal Review Petition No. 52 of 2019 in Criminal Petition No. 1245-L of 2010 (Against the judgment dated 05.06.2012 passed by this Court in Criminal Petition No. 1245-L of 2010) Kareem Nawaz Khan …Petitioner versus The State …Respondent For the petitioner: Mr. Abid Saqi, ASC Mr. Mehr Khanl Malik, AOR For the State: Mr. Ahmed Raza Gillani, Additional Prosecutor-General, Punjab Date of hearing: 21.06.2019 JUDGMENT Asif Saeed Khan Khosa, CJ.: Criminal Miscellaneous Application No. 512 of 2019 This miscellaneous application is allowed in the terms prayed for therein. Disposed of. Criminal Miscellaneous Application No. 513 of 2019 2. For the reasons mentioned in this miscellaneous application the same is allowed and the delay in filing of the present review petition is condoned. Disposed of. Criminal Review Petition No. 52 of 2019 2 Criminal Review Petition No. 52 of 2019 3. Karim Nawaz Khan petitioner had allegedly murdered his sister, a brother and a sister-in-law by firing at them with the use of a Kalashnikov in an incident taking place at about 12.00 Noon on 03.06.2007 inside the house of Muhammad Khan complainant in village Whandi Shiapur in the area of Police Station Moch, District Mianwali in the backdrop of a motive based upon a dispute between the parties over some ancestral property. With these allegations the petitioner was booked in case FIR No. 101 registered at the above mentioned Police Station soon after the incident and after a regular trial the petitioner was convicted on three counts of an offence under section 302(b), PPC and was sentenced to death on each count and to pay compensation and Diyat to the heirs of the deceased. The petitioner was also convicted by the trial court for an offence under section 7(a) of the Anti-Terrorism Act, 1997 and even on that count of the charge he was sentenced to death and to pay fine. The petitioner was additionally convicted by the trial court for an offence under section 21-L of the Anti-Terrorism Act, 1997 and for the said offence he was sentenced to rigorous imprisonment for five years and to pay fine. The petitioner challenged his convictions and sentences before the High Court through an appeal which was dismissed and all his convictions and sentences recorded by the trial court were upheld and confirmed by the High Court. Thereafter the petitioner approached this Court through Criminal Petition No. 1245-L of 2010 but the said petition was also dismissed by this Court on 05.06.2012 and leave to appeal was refused to him. Hence, the present review petition before this Court. 4. On 05.06.2012 this Court had dismissed Criminal Petition No. 1245-L of 2010 after attending to the merits of the petitioner’s case and it had been held by this Court that the courts below were justified in convicting and sentencing the petitioner and in upholding and confirming his sentences. Through the present Criminal Review Petition No. 52 of 2019 3 review petition it has been brought to this Court’s notice that after passage of the said order by this Court upholding and maintaining the petitioner’s convictions and sentences the heirs of all the three deceased had entered into a compromise with the petitioner which compromise was presented before the trial court, i.e. the Anti- Terrorism Court, Sargodha and vide judgment dated 19.02.2014 the learned Judge, Anti-Terrorism Court, Sargohda was pleased to accept the said compromise on all the three counts of the charge under section 302(b), PPC whereas the said compromise was rejected to the extent of the petitioner’s convictions and sentences for the offences under sections 7(a) and 21-L of the Anti-Terrorism Act, 1997. We have gone through the said order passed by the trial court on 19.02.2014 and have noticed that the trial court had felt satisfied regarding genuineness and completion of the acclaimed compromise between the parties. Through the present review petition the learned counsel for the petitioner has urged that in view of the compromise affected between the parties vis-à-vis the offences under section 302(b), PPC the sentence of the petitioner for the offence under section 7(a) of the Anti-Terrorism Act, 1997 may be reduced from death to imprisonment for life. In support of this submission the learned counsel for the petitioner has refereed to the cases of Muhammad Nawaz v The State (PLD 2014 SC 383), Shahif Zafar and 3 others v The State (PLD 2014 SC 809) and M. Ashraf Bhatti and others v M. Aasam Butt and others (PLD 2006 SC 182). The learned Additional Prosecutor-General, Punjab appearing for the State has submitted that in the above mentioned precedent cases this Court had indeed utilized a compromise between the parties for reduction of a convict’s sentence of death to imprisonment for life on a charge under section 7(a) of the Anti- Terrorism Act, 1997 and, thus, the matter of reduction of the petitioner’s sentence on such a score in the present case lies within the discretion of the Court. 5. After hearing the learned counsel for the parties and going through the record we have noticed that the appellant was very closely related to all the three murdered persons in this case, i.e. Criminal Review Petition No. 52 of 2019 4 he was a brother of two of the deceased and a brother-in-law of the third deceased and the incident in issue had taken place because of a dispute between the parties over some ancestral property. According to the prosecution itself there was no enmity between the parties and the present incident had taken place about half an hour of an earlier incident wherein the petitioner and the deceased and some others had quarreled with each while discussing the matter of ancestral property. It could, thus, be said that in the absence of any on-going enmity between the parties the present occurrence had taken place because of some very recent provocation offered to the petitioner by the complainant party while discussing the issue regarding ancestral property. It may, therefore, be a case not of grave and sudden provocation but a case which was based upon some provocation recently offered to the petitioner although the same was not sudden. In a case of such a situation this Court has held that the least that a Court can do in such a case is to reduce the sentence of death to imprisonment for life and a reference in this respect may be made to the case of Ghulam Abbas v Mazhar Abbas and another (PLD 1991 SC 1059). There is an additional factor available in this case for reduction of the petitioner’s sentence of death to imprisonment for life and that is that a valid compromise had been arrived at between the parties which has already been allowed by the trial court vis-à-vis three counts of the charge under section 302(b), PPC. In the cases of Muhammad Nawaz v The State (PLD 2014 SC 383), Shahif Zafar and 3 others v The State (PLD 2014 SC 809) and M. Ashraf Bhatti and others v M. Aasam Butt and others (PLD 2006 SC 182) this Court has already considered a valid and accepted compromise in the coordinate offence to be a valid ground for reduction of a sentence of death to imprisonment for life on the charge of terrorism or of a non-compoundable offence. 6. For what has been discussed above this review petition is allowed, the order under review dated 05.06.2012 passed by this Court in Criminal Petition No. 1245-L of 2010 is recalled, the said petition is converted into an appeal and the same is partly allowed Criminal Review Petition No. 52 of 2019 5 with the result that the sentence of death passed against the petitioner/appellant for the offence under section 7(a) of the Anti- Terrorism Act, 1997 is converted into a sentence of imprisonment for life. The order passed by the trial court regarding payment of fine on that charge is maintained but it is ordered that in default of payment of fine he shall undergo simple imprisonment for six months. On account of a valid compromise having been arrived at between the heirs of the three deceased and the present appellant, which compromise has already been allowed by the trial court, his convictions and sentences on three counts of the charge under section 302(b), PPC are set aside and he is acquitted of the said counts of the charge. The appellant has already served out his sentence of imprisonment for the offence under section 21-L of the Anti-Terrorism Act, 1997 which shall be deemed to have run concurrently with his other sentence of imprisonment. The appellant shall be allowed the benefit under section 382-B, Cr.P.C. as far as his reduced sentence under section 7(a) of the Anti- Terrorism Act, 1997 is concerned. This review petition and the appellant’s petition converted into an appeal are disposed of in the terms noted above. Chief Justice Judge Judge Islamabad 21.06.2019 Approved for reporting. Arif

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) Present: Mr. Justice Iftikhar Muhammad Chaudhry, HCJ. Mr. Justice Jawwad S. Khawaja Mr. Justice Anwar Zaheer Jamali Criminal Misc. Application No.765/2012 (Notice in the matter of derogatory language used by Altaf Hussain, Leader of Muttahida Qaumi Movement against the Judges of this Court) And Suo Moto Case No.16 of 2011 (Law & Order Situation in Karachi) And Criminal Original Petition NO.96/2012 Senator Haji Adeel Vs. Raja Muhammad Abbas and others For the petitioner: Mr. Muhammad Zahoor Qureshi, AOR (in Crl.O.P. NO.96/2012) On Court Notice: Mr. Qasim Mirjatt, Addl. A.G. Sindh Mr. Zafar Ahmad Khan, Ad P.G. Sindh Respondents: N.R. Date of hearing: 14.12.2012 O R D E R Office of the Registrar of this Court has drawn attention towards the substance of speech delivered by Altaf Hussain, leader of Muttahid Qaumi Movement (MQM) on 02.12.2012 addressing a large number of people wherein uncalled for expressions and aspersions were used against the Hon’ble Judges of Supreme Court of Pakistan. Crl.MA No.765/2012 etc. 2 2. In the wake of situation of law & order prevailing in Karachi, this Court in the judgment dated 13.9.2011 passed in the case of Watan Party v. Federation of Pakistan (PLD 2011 SC 997), on having examined in depth the facts and circumstances, on account of which lives and properties of the citizens of Karachi are not secured, issued directions including the one, which is reproduced herein below:- “Further observe that to avoid political polarization and to break the cycle of ethnic strife and turf war, boundaries Of administrative units like police stations, revenue estates, etc., ought to be altered so that the members of different communities may live together in peace and harmony, instead of allowing various groups to claim that particular areas belong to them and declaring certain areas as NO GO Areas under their fearful influence. Subsequent thereto, on similar considerations, in view of relevant laws, delimitation of different constituencies has also to be undertaken with the same object and purpose, particularly to make Karachi, which is the hub of economic and commercial activities and also the face of Pakistan, a peaceful city in the near future. The Election Commission of Pakistan may also initiate the process on its own in this behalf.” It is to be noted that above judgment was conceded to as no review petition was filed against any of the directions contained therein. In the said judgment a mechanism was introduced but subsequent thereto it was noticed that inter alia above directions were not being implemented despite lapse of considerable period, therefore, on different occasions, the case was heard to implement the judgment. On 28.11.2012 a Bench of this Court issued direction to Election Commission for taking in hand the process of delimitation of the constituencies in Karachi city. Relevant para from the judgment is reproduced herein below:- “In response to our earlier order dated 26.11.2012, Mr. Ishtiak Ahmed Khan, Secretary, Election Commission of Pakistan is present. When confronted with the observations of this Court regarding delimitation of different constituencies at Crl.MA No.765/2012 etc. 3 Karachi, in line with the observations in the judgment in the case of Wattan Party (PLD 2011 S.C.997) at page 1131, and the stance earlier taken by the Election Commission of Pakistan through its director General (elections) Syed Sher Afgan, he candidly conceded that neither the Article 51(5) of the constitution of the Islamic Republic of Pakistan 1973 nor section 7(2) of the Delimitation of Constituencies Act 1974 are hurdle in the compliance of such observations. He assured that now the task of delimitation of different constituencies in Karachi has been taken up by the election Commission of Pakistan with the Government of Sindh, and, for this purpose, from today onward, he is going to hold three meetings with the concerned officials of the Government of Sindh, particularly, the Chief Secretary, Government of Sindh to make substantial progress in this regard. He further assured that compliance of observations regarding delimitation of constituencies will be done/completed in its letter and spirit within the shortest possible time, after following due procedure and taking on board all the stakeholders, and such comprehensive report will be submitted for the perusal of this Court. The Chief Secretary, Government of Sindh, who is also present in Court, has assured fullest cooperation to the election Commission of Pakistan for this purpose…… 3. Needless to observe that there was no object of the above order except to implement the judgment of this Court dated 13.9.2011 in letter and spirit but it seems that after passing above order Altaf Hussain leader of MQM delivered a speech addressing to the general public/citizens of Karachi on telephone by availing facility of uplinking, normally provided by PTA, wherein uncalled for remarks and the demands were put forward. The script of the speech has been obtained from PEMRA, a perusal of the same suggests that the derogatory remarks made by him are critical and also contemptuous in nature. Extract from the speech is reproduced herein below:- Crl.MA No.765/2012 etc. 4 ١۔ ﺎﻨﻓ ﻮﮐ ﻢﯾا ﻮﯿﮐ ﻢﯾا ﻮﮐ ﺰﺠﺟ ﺾﻌﺑ ﮯﮐ ںﻮﺘﻟاﺪﻋ ﺮﺻﺎﻨﻋ ﻦﻤﺷد ۔ ﮟﯿﮨ ﮯﮨر ﺮﮐ ل ﺎﻤﻌﺘﺳا ﻮﮐ ﺰﺠﺟ ﺾﻌﺑ ﮯﯿﻟ ﮯﮐ ﮯﻧﺮﮐسﻮﺴﻓا ﮫﺗﺎﺳ ﮯﮐ و مﺎﻧ ﺎﮐ ﻢﯾا ﻮﯿﮐ ﻢﯾا روا ﺎﻨﻓ ﻮﮐ ﻢﯾا ﻮﯿﮐ ﻢﯾا ﯽﮭﺑ ﺰﺠﺟ ﮯﮐ ٹرﻮﮐ ﻢﯾﺮﭙﺳ نﺎﺸﻧ ﮟﯿﮨ ﮏﯾﺮﺷ ﮟﯿﻣ ﻞﻤﻋ ﮯﮐ ﮯﻧﺎﭩﻣ۔ ٢ ﯽﻣرآ فآ ﻒﯿﭼ ،ﮯﮨ ﺮﭘ ڈرﺎﮑﯾر نﺎﯿﺑ ہﯾ ہﮐ ںﻮﮨ ﺎﺘﮨﺎﭼ ﺎﻧﺎﺘﺑ ﮟﯿﮩﻧا ﮟﯿﻣ ۔ ہﻋﻮﺠﻨﺟ زاﻮﻧ ﻆﻓﺎﺣ فﺎﭩﺳﺎﮐ ﺮﭘ ڈرﺎﮑﯾر ﺎﯿﺑ ن ،ﮯﮨ دﻮﺟﻮﻣ19 نﻮﺟ 1992ﭨا تارﺎﺒﺧا ﮯﮐ ﺪﻌﺑ ﮯﮐ ء ﮫﮑﯾد ﺮﮐ ﺎﮭ ۔ﮯﺌﺠﯿﻟ ﻦﯿﺴﺣ فﺎﻄﻟاﺎﮐ ۔ﮯﮨ ﺎﯿﮔﻮﮨزﻮﻠﮐ ﺮﭩﭙﯿﭼ ﺮﮐ ﻦﮩﭘ یدرو ﺮﭘ ﻦﯿﻣز نﺎﺴﻧا ﻮﺗ ،ﺎﮔ ےﺮﮐClose ﯽﮨو ۔ﺎﮭﺗ ﻻﻮﮭﮐ ﮯﻧ ﷲا Chapter ﺎﮐ ﻦﯿﺴﺣ فﺎﻄﻟا ﯽﮭﺑ با ﻦﯿﺴﺣ فﺎﻄﻟا ،ﺎﯿﮔ ﭧﻣ نﺎﺸﻧ و مﺎﻧ اﺮﯿﺗ ﻮﺗ ﻻاو ﮯﻧرﺎھد پور ﺎﮐ اﺪﺧ ۔ﮯﮨ ﮦﺪﻧز ٣ﻮﮐ ﻢﯾﺮﭙﺳ ﺲﮐرﺎﻤﯾر ﻮﺟ ہﻠﺼﯿﻓ ﻮﺟ ہﯾ ۔ ﭻﻨﯿﺑ ﯽﺻﻮﺼﺧ ﻞﺸﯿﭙﺳا سا ﯽﮐ ٹر ہﻠﺼﯿﻓ ﮟﯿﻣ ہﻠﺴﻠﺳ ﮯﮐ ﺲﯿﮐ ﯽﻨﻣاﺪﺑ ﯽﭼاﺮﮐ ،ﮯﻧﻮﮨ ﮯﺘﯾدۓ ہﯾ ﮯﻧ ﺞﺟ ﺲﺟ رﺎﻤﯾر ﯽﻨﻣاﺪﺑ ﮟﯿﻣ ﯽﭼاﺮﮐ ہﮐ ﮯﮩﮐ ﮟﯿﻣ ﯽﮔدﻮﺟﻮﻣ ﯽﮐ ﺰﺠﺟ ﺮﮕﯾد ﮯﻨﭘا ﺲﮐ ﮯﺌﻟ ﮯﮐ ﮯﻤﺗﺎﺧ ﮯﮐرڈرٓا ﮉﻨﯾا ءﻻ ںﺎﯾﺪﻨﺑ ﺪﺣ ﯽﺌﻧ ﮯﺌﻟ ﮯﮐ ﮯﻧﺎﻨﺑ ﺎﮭﭼا ﻮﮐ ﮟﯿﺋﺎﺟ ﯽﮐ ہﻧ یراد ﮦرﺎﺟا ﯽﮐ ﺖﻋﺎﻤﺟ ﮏﯾا ﯽﺴﮐ ہﮐ ۔ﮯﮨر ۴روا ﮯﻧ ﺞﺟ ﺲﺟ ۔ﺲﺟ ماﻮﻋ ںوڑوﺮﮐ ﮦو ﺮﮔا ،ﮯﮨ ﺎﯾد ہﻠﺼﯿﻓ ہﯾ ﮯﻧ ﭻﻨﯿﺑ ﺮﭘ ﺲﮐرﺎﻤﯾر سا ﮯﺌﮔ ﮯﺌﯾد فﻼﺧ ﮯﮐ ﻢﯾا ﻮﯿﮐ ﻢﯾا ﺖﻋﺎﻤﺟ ﮦﺪﻨﺋﺎﻤﻧ ﯽﮐ ہﮐ ںﻮﮨ ﺎﺗﺎﺘﺑ ﮟﯿﻣ ﻮﺗ ﯽﮔ ﮯﮕﻧﺎﻣ ﮟﯿﮩﻧ ﯽﻓﺎﻌﻣ نﺎﺸﻧ و مﺎﻧ ﺎﮐ نا ﺎﮔ ﮯﺋﺎﺟ ﭧﻣ ۔ﺎﮔ ﻮﮨ ﺎﻧﺮﮐ ﺎﻨﻣﺎﺳ ﺎﮐ یﺮﺘﺑا ﮟﯿﮩﻧا ۔ﷲا ءﺎﺸﻧا ۵ مﺎﻤﺗ ںﺎﮩﺟ ۔ ﮏﻠﻣﮍﭘ ﮦدﺎﯾز ﮯﺳ ںوﺮﮩﺷ ﮯﮐﮯھﮑﻟ ﻮﮔﻮﻟﮯﮭ ﺎﮐ ں ہﺼﺣ ،ﮯﮨ ﻦﯿﮨﻮﺗ ﯽﮐ ماﻮﻋ ﺪﺋاز ﮯﺳ ڑوﺮﮐ ود ﺲﮐرﺎﻤﯾر ہﯾ ﮯﮐ ﺞﺟ ﻞﺿﺎﻓ ﻮﺗ ﮯﮨ ﺧ ہﻧرو ﻮﮕﻧﺎﻣ ﯽﻓﺎﻌﻣ ﮯﺳ ماﻮﻋ ﺞﺟ ﻞﺿﺎﻓ ،ﮯﮨ ﯽﻟﺎﮔ ﮯﺌﻟ ﮯﮐ نا ﻮﮐ اﺪﺧ ِﻖﻠ باﻮﺧ ﻮﺟ ﺎﮐ ﮯﻧﺮﮐ ﻢﺘﺧ ارﺎﮭﻤﺗ ﮫﭩﯿﺑ ﺮﭘ ﯽﺳﺮﮐ ﯽﮐ ﺖﻟاﺪﻋ ﺮﮐ ﮫﭩﯿﺑ ﺮﭘ ﺐﺼﻨﻣ ﺮﮐ۔ٰﯽﻤﻈﻋ ِﺖﻟاﺪﻋ ﯽﮨو ﺟ ﮯﮐ ﺑ یرﻮﭘ روا ،ﻮﮨ ﮯﮨر ﮫﮑﯾد باﻮﺧ ﻮ ﻦﺳ ﭻﻨ ﯽﮨرﻮﮐ ﻢﯾا ﻮﯿﮐ ﻢﯾا ،ﻮﮭﮐر دﺎﯾ ﻮﺗ ،ﮯﮨﺮﮨ و مﺎﻧ ﺎﮐ ںﻮﻟاو ﮯﻧﺎﭩﻣ نﺎﺸﻧ و مﺎﻧ نﺎﺸﻧﺎﮨر ﮟﯿﮩﻧ ﮯﻨﺘﮐ ﻮﮐ ﺮﺑﺎﺑ ﷲا ﺮﯿﺼﻧ جآ ،ﮟﯿﮩﻧ ﯽﺋﻮﮐ ﻻاو ﮯﻨﯿﻟ مﺎﻧ ﺎﮐ نا ، ۔ﮟﯿﮨ ﮯﺗﺮﮐ دﺎﯾ گﻮﻟ ۶ﭻﻨﯿﺑ ﯽﺻﻮﺼﺧ ،ﺲﮐرﺎﻤﯾر ہﯾ ﮯﮐ ﺞﺟ ﻞﺿﺎﻓ ﮯﮐ ﭻﻨﯿﺑ ﯽﺻﻮﺼﺧ ﻮﺗ ۔ ﮯﮐ ﮯﻨﻣﺎﺳ ﮯﮐ ںﻮﺠﺟ ﺮﮕﯾدﮯﯾد ﺎﮭﭩﺑ، ،ںﻮﮔرﺰﺑ ،ںﻮﻨﮩﺑ ،ںؤﺎﻣ ،ﻦﯿﺗاﻮﺧ ،زﺮﭨوو ﯽﮨد ﮯﺋار ِﻖﺣ ﻮﺟ ﮯﻨﭘا ﮯﺳ ﺐﻧﺎﺟ ﯽﮐ ںﻮﻣﻮﺼﻌﻣ ہﮐ ٰﯽﺘﺣ ،ںﻮﻧاﻮﺟﻮﻧ ﭧﻟڈا ﺰﺋﺎﭽﻧﺮﻓﺎﮐ ﻖﺣیرﻮﮩﻤﺟ ﺮﮨ ﺖﺤﺗ ﮯﮐ نﻮﻧﺎﻗ ﻦﯿﺋآ د ﮟﯿﻣ ﺖﻤﺳﺎﺟ ﺎﯾﺎﮨر ﮯﮨ ۔ﮯﮨ شزﺎﺳ ﯽﻠﮭﮐ فﻼﺧ ﮯﮐ ﮯﻧﺮﮐ لﺎﻤﻌﺘﺳا ﻖﺣ ﺎﮐ سا ٧ﮐ ﺞﺟ ﻞﺿﺎﻓ ہﯾ روا ۔ﮩ،ﻮﮨ ہﻧ ﻢﺋﺎﻗ یراد ﮦرﺎﺟا ہﮐ ﮟﯿﮨ ﮯﮨر ہےا ﺞﺟ ﻞﺿﺎﻓ ،ﺎﮔﻮﮨ لزﺎﻧ ﺮﭘ ﻢﺗ یﺪﻧو اﺪﺧ ِﺮﮩﻗ ﺪﻠﺟ ہﻧرو ،ﻮﮕﻧﺎﻣ ﯽﻓﺎﻌﻣ ،ﻮﻟ ﺲﭘاو ظﺎﻔﻟا ﮯﻨﭘا ﻦﯿﺴﺣ حﺮﻃ ﺲﺟﺎﮔ ﮯﺋآ ﯽﮭﺑ ﺐﺟ مﺎﻧ ارﺎﮩﻤﺗ ،ﻮﮭﮐر دﺎﯾ رواﺎﮐ ﮯﺳ ماﺮﺘﺣا ےا ،ﻮﮭﮐر دﺎﯾ ﻮﺗ ،ﮟﯿﮨ ﮯﺘھﮍﭘ لﻮﺣﻻ ﯽﮨ ﮯﺘﻨﺳ مﺎﻧ ﺎﮐ ﺪﯾﺰﯾ روا ﮟﯿﮨ ﮯﺘﯿﻟ مﺎﻧ Crl.MA No.765/2012 etc. 5 ﻓﻞﺿﺎآ ﺮﮔا ،ﺰﺠﺟ ﺮﮕﯾد ﮯﮐ ﭻﻨﯿﺑ روا ﺞﺟ پ ﮯﻧ ﯽﻓﺎﻌﻣ ہﻧ دﺎﯾ ﻮﺗ ﯽﮕﻧﺎﻣ نﺎﺸﻧ و مﺎﻧ ﺎﮐ پآ ،ﮯﺌﯿﮭﮐرﮯﮨر ہﻧ ﮦو ،ﺎﮔ ﮯﺋآ مﺎﻧ ﺎﮐ پآ ﯽﮭﺑ ﺐﺟ ہﮑﻠﺑ ﺎﮔ ۔ﺎﮔ ﮯﺋآ ﮫﺗﺎﺳ ﮯﮐ ﺖﯾﺪﯾﺰﯾ ٨۔ا ﺐﺣﺎﺻ ﺲﭩﺴﺟ ﻒﯿﭼ ﮯﮐ ٹرﻮﮐ ﻢﯾﺮﭙﺳ ﯽﺋﺎﮭﺑ ﻮﺗ یرﺪﮨﻮﭼ ﺪﻤﺣا رﺎﺨﺘﻓ ۔۔۔۔۔ ﺐﺣﺎﺻﯽﺋﺎﮩﺘﻧا ﮯﻧ ﺰﺠﺟ ﮯﮐ ٹرﻮﮐ ﻢﯾﺮﭙﺳ ﯽﮐ پآ سﺎﭘ ﺲﮐرﺎﻤﯾر ﻆﯿﻠﻏ ۔ﮯﮨ ﺎﯿﮐ حوﺮﺠﻣ ﻮﮐ رﺎﻗو ﮯﮐ ﯽٰﻤﻈﻋ ﺖﻟاﺪﻋ ﮯﮐ ﺮﮐ ٩ ﮏﻠﻣ ہﮐ ںﻮﮨ ﺎﺘﮨﺎﭼ ﺎﻨﯾد ﺎﺘﺑ ﻮﮐ ﺰﺠﺟ ﺐﺼﻌﺘﻣ فﻼﺧ ﮯﮐ ﻢﯾا ﻮﯿﮐ ﻢﯾا ﮟﯿﻣ ۔ ﮯﮐرﻮﯿﻏ ہﮐاڈ ﺮﭘ ﻖﺣ یرﻮﮩﻤﺟ ﮯﻨﭘا ﻮﮐ ﯽﺴﮐ ماﻮﻋ ﺪﻨﺴﭘ ﺖﯾرﻮﮩﻤﺟ روا ،یزﺎﯿﺘﻣا ﺲﮐرﺎﻤﯾر ہﯾ ﮯﮐ ﺞﺟ ﻞﺿﺎﻓ ، ﮯﮔ ﮟﯾد ﮟﯿﮩﻧ تزﺎﺟا ﯽﮐ ﮯﻨﻟاڈ ﯽﺟ ﮟﯿﮩﻧ،،ﺐﺼﻌﺗ ﯽﺘﯿﻧ ﺪﺑﻦﯿﺋآ نﻮﻧﺎﻗ سا ،ﺰﺠﺟ ﮯﮐ ﭻﻨﯿﺑ ۔ﮟﯿﮨ فﻼﺧ ﮯﮐ ﺲﮐرﺎﻤﯾر ﮯﻧ ﺞﺟ ﻞﺿﺎﻓ ﻮﺟ ﮟﯿﻣ سا ،ﮟﯿﮨ ﻮﺟ ﺰﺠﺟ ﮯﮐ ﭻﻨﯿﺑ صﻮﺼﺨﻣ ﻦﺸﮑﯿﺳ ﮯﮐ ﻦﯿﺋآ ﮦو ﮯﺌﯾد25 ۔ﮯﮨ یزرو فﻼﺧ ًﺎﺤﯾﺮﺻ ﯽﮐ ١٠ ﻮﮨ ﮟﯿﮩﻧ یراﺪﻏ ﯽﮐ ﻒﻠﺣ ہﯾ با ۔ﯽﮨرﺐﺣﺎﺻ ﺲﭩﺴﺟ ﻒﯿﭼ ! روا ﯽﻧﻮﻧﺎﻗ ﯽﻨﺌﯾآ ﻮﮨ ﮟﯿﮩﻧ یراﺪﻏ ﯽﮐ ﻒﻠﺣﯽﮨر، ١١ ﮯﯾد ہﻧﺎﺒﺼﺘﻌﻣ ﺲﮐرﺎﻤﯾر ہﯾ ﮯﻧ ﺲﺟ ﭻﻨﺑ ﻞﺿﺎﻓ ﻮﺟ ﮯﮐ ﭻﻨﺑ سا۔ ﺐﺼﺘﻌﻣ ﮯﺴﯾا ہﮐ ںﻮھ ﺎﺘﮩﮐ ﮟﯿﻣ ےرﺎﺑ ﮯﮐ ﭻﻨﯿﺑ سا ﮯﮐ ٹرﻮﮐ ﻢﯾﺮﭙﺴںﯿﮨ ﺖﻟاﺪﻋ ﺎﮐ ﮏﻠﻣ ہﻧ ۔ﮯﮔ ﮟﯿﮨر ﮯﮭﭩﯿﺑ ﺮﭘ ںﻮﯿﺳﺮﮐ ﮟﯿﻣ ﺖﻟاﺪﻋ ﮏﺗ ﺐﺟ ﺰﺠﺟ ﮏﯿﮭﭨ مﺎﻈﻧ ﺎﮐ ۔ﺎﮔﻮﮨ ﺖﺳرد ﯽﮭﺒﮐ ﺎﮐ رڈرآ ﮉﻨﯾا ﻻ ﺎﮐ ﮏﻠﻣ ہﻧ ﺎﮔﻮﮨ ﮉﻨﯾا ﻻ ﺢﯿﺤﺻ رڈرآ ﻮﮐ ﺰﺠﺟ ﺐﺼﺘﻌﻣ ﮯﺴﯾا ہﮐ ﮯھ یروﺮﺿ ﮯﯿﻟ ﮯﮐ ﮯﻧﺮﮐ ۔ﮯﺋﺎﺟ ﺎﯿﮐ غرﺎﻓ ١٢ ےرﺎﻤﮨ جآ ﮯﺳ ﯽﺘﻤﺴﻗ ﺪﺑ ﺰﭽﻨﯿﺑ ﮯﮐ ںﻮﺘﻟاﺪﻋ روا ﮟﯿﺘﻟاﺪﻋ جآ ﮟﯿﺘﻟاﺪﻋ۔ ﮟﯿﻣ ﮏﻠﻣﻦﺑ قاﺰﻣﮟﯿﮨ ﯽﮑﭼ 4. The office note was directed to be put up in Court because on having gone through the above material it was considered appropriate to examine the same on judicial side. 5. Prima facie, contents of the speech of Altaf Hussain, reproduced above, tantamount to interference with and obstruction of the process of the Court by advancing threats to the Hon’ble Judges of Supreme Court and it also tends to bring the Judges into hatred, ridicule and contempt. On account of such assertions, the process of the Court is also likely to be prejudiced, relating to implementation of the issues arising out of the directions of this Court in Watan Party’s case and subsequent orders dated 1.11.2012, 26.11.2012, 28.11.2012 etc. passed for Crl.MA No.765/2012 etc. 6 the implementation of the directions issued in reported judgment, referred to hereinabove. Criminal Original Petition No.96 of 2012: 6. This petition has been filed by Senator Haji Adeel, under section 5 of the Contempt of Court Ordinance, 2003 read with Article 204 of the Constitution, wherein after having relied upon the directions made by this Court in the judgment, noted hereinabove, inter alia it has been mentioned that in Karachi lives and properties of the people have not been protected and no respite in loss of human life since been witnessed even after more than a year. It was further stated that the Administration headed by Chief Secretary has failed to improve the situation and thus the directions of this Court have been willfully ignored rather violated. With regard to observation of this Court to avoid political polarization and to break the cycle of ethnic strife and turf war, boundaries of administrative units, like police stations, revenue estates etc. are to be altered so that members of different communities may live together in peace and harmony, and to delimitation of different constituencies to make Karachi as a peaceful city, it was mentioned that the respondents have done nothing and the said observations have been violated flagrantly. The respondents have not moved an inch with respect to the directions regarding arms and ammunition of prohibited and non- prohibited bores. No appropriate legislation has been made with regard to land grabbing, which amounts to contempt of court. It was also mentioned that the directions with regard to compensation to those who lost their lives and properties, deputing of independent and de-politicised investigating agency, creation of special joint cell by NADRA and IGP, and collection of record in respect of police officials and witnesses etc. who have Crl.MA No.765/2012 etc. 7 been killed, have not been complied with. In the petition following prayer has been made:- “It is therefore prayed that the respondents be proceeded against under section 5 of the Contempt of the Court Act R/W Article 204 of the Constitution of Islamic Republic of Pakistan and they may be tried for contempt of court and punished accordingly.” 7. In the light of above, notices under Article 204 of the Constitution of Pakistan read with section 3 of the Contempt of Court Ordinance, 2003 be issued to Altaf Husain to appear in person and explain as to why he should not be proceeded against for Contempt of Court in accordance with the Constitution and the law. Notice be issued to him through Secretary, Ministry of Foreign Affairs, Government of Pakistan as he has made above assertions during a telephonic address from outside the country. The Secretary will ascertain his correct location and shall ensure service upon him, through representatives of the Foreign Office outside the country. Similarly, a notice be also issued to him c/o Dr. Farooq Sattar, Deputy Convener, MQM, 494/8, Azizabad, Karachi. 8. Likewise, notices under Article 204 of the Constitution of Pakistan read with section 3 of the Contempt of Court Ordinance, 2003 be issued to the respondents in Criminal Original Petition No.96/2012 to appear and explain as to why they should not be proceeded against for Contempt of Court in accordance with the Constitution and the law, for having been failed to implement the judgment in Watan Party’s case. 9. The Advocate General of the Province of Sindh is also directed to submit comprehensive compliance report in respect of the directions contained in Watan Party’s case and the orders passed thereafter by a Bench seeking implementation of the judgment. And if the judgment is not implemented in letter & Crl.MA No.765/2012 etc. 8 spirit, he should pinpoint the person(s) individually and collectively responsible for the same. In the meanwhile the Provincial Government through its Chief Secretary should also furnish a statement as to why the killing in Karachi has again increased and what measures have been taken to ensure the safety and protection of the life and property of the citizens in Karachi. Detail of citizens, who were killed from 13.09.2011 to date, be also furnished. Adjourned to 07.01.2013. Chief Justice Judge Judge Islamabad, the 14th December, 2012 Nisar/*                              765/2012                         16 of 2011             96/2012                               96/2012                           14/12/2012     1 765/2012                                      02/12/2012                    PLD                      13/09/2011  2011 SC 997                                        "                Revenue estates                                                                                                                                2 765/2012                                          "                                                                   28/11/2012                                          26/11/2012        "                                      (PLD 2011 SC                     1131     997)                                     51(5)   1973         1974                              7(2)                  3 765/2012                                                                                                                                                                                                       "                                 13/09/2011                    Uplinking        /                                                       1 4 765/2012                                                        2   1992  19                                                                       3                                                                     4                                                         5                                        5 765/2012                                                                             6                                                                            7                                                                                           8                                               9 6 765/2012                                                            25                             10                      11                                                                                            12                  -4                                  -5                                 7 765/2012               28/11/2012, 26/11/2012, 01/11/2012               96/2012             5   2003                           204                                                                                                                                                                                                                       8 765/2012                                       5               204             204        7             3                                                               494/8                                2003       204      8       96/2012        3                                                   9                      9 765/2012                                                         13/09/2011                     07/01/2013          2012   14 10 765/2012       

1 IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Jawwad S. Khawaja. Mr. Justice Ejaz Afzal Khan. Crl. Misc. Application No.86 of 2014 (Report of Secretary, Punjab Bar Council, Lahore) IN Criminal Petition No.240 of 2012 (Salamat Ali Chamma Vs. The State and another) On Court’s Notice: For Punjab Bar Council: Mr. Khalid Umar, Assistant Secretary/Law Officer Date of hearing: 26.02.2014. ORDER Jawwad S. Khawaja, J. Mr. Khalid Umar, Advocate has appeared with the record. He shall prepare a copy of the record and file the same in Court before the next date of hearing. 2. The necessity for fixing this matter in Court, is evident from the circumstances set out in our order dated 31.8.2012 and the events which have followed the said order. We had noted in our order that “a competent, diligent and ethical Bar is an indispensable component of our judicial system. This system cannot function properly if Members of the Bar do not adhere to the code of conduct prescribed under the Legal Practitioners and Bar Councils Act, 1973”. The provisions of Article 37(d) of the Constitution are also of the utmost relevance. This Article stipulates that “the State shall … ensure inexpensive and expeditious justice”. From the decorous and dignified manner in which the learned trial Court dealt with the matter, it is apparent that there were hindrances placed before the learned trial Court which resulted in denial of the above noted constitutional imperative. 3. The Bar exists for the purpose of ensuring access to and delivery of justice. The Bar is also meant to stand up for upholding the rule of law. But the Bar can discharge these functions only if its members abide by their code of conduct and are subjected, like everyone else, to the rule of law. 4. The disciplinary mechanism of the Legal Practitioners and Bar Councils Act, 1976 and the proceedings taken by the Punjab Bar Council in this case appear, prima facie, to 2 have fallen short of the standards set out for Advocates in the code of conduct prescribed under the aforesaid Act. 5. It is inter alia, for the above reasons that we would like to examine the law and, in the light thereof the decision of the Punjab Bar Council Tribunal dated 24.10.2013. 6. Notice issued to Malik Haider Zaman, Advocate has been returned unserved. Let fresh notice issue to Malik Haider Zaman, Advocate for 17th March, 2014. Judge Judge Islamabad, the 26th February, 2014. M. Azhar Malik       Appellate Jurisdiction              Crl. Misc. Application No. 86 of 2014        IN Criminal Petition No. 240 of 2012               /         2014  26                                31.08.2012        2   "                          "     Legal Practitioners and Bar Councils Act, 1973             37(d)                          "                                         3                                    1976    4                    24-10-2013          5                       6      17-03-2014     2014  26

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) CRIMINAL MISC. APPEAL No. 30 OF 2022 IN IN CRIMINAL PETITION NO. NIL OF 2022 Atif Ali and others Abdul Basjt and another VERSUS Applicants Respondents PRAYER "this Court may graciously by accepting this appeal set aside order dated 14.07.2322 of the office of the learned Registrar and instant Criminal Petition may be entertained and - numbered accordingly and the same be placed before an Hon'ble Bench of this Court for decision on merits in accordance with law. Any other relief which this Court deems fit and proper may also be awarded to the applicants to meet the ends of justice" For the Applicants: Mr. Kamran Murtaza, Sr. ASC For the Respondents. Nemo Date of Hearing: 27.09.2022 ORDER The applicants were allowed bail before arrest by the learned ASJ, Dalbandin in case registered vide FIR No. 41/2021 under Sections 302/324/147/148/149 PVC at Police Station Dalbandjn but their bail was recalled/cancelled by the learned High Court vide order dated 30.06.2022. Their pre-arrest bail petition before this Court has not been entertained by the office by placing reliance on Order XXIII Rule 8 of the Supreme Court Rules, 1980 and a judgment of this Court reported as Muhammad Adnan Vs. The State (2015 SCMR 1570) which led to filing of instant Criminal Miscellaneous Appeal. 2. I have heard learned counsel for the applicants and have perused the relevant case law. ff1 Cr1. Misc. Appeal No. 3012022 2 3. The office objection raised by the institution Officer of this Court is misconceived The bar contained in first proviso to Rule 8 Order XXIII of the Supreme Court Rules, 1980, does not apply to the case in hand because of the reason that no order of imprisonment or fine as contained in Rule 8 ibid is challenged before this Court and, as such, the said bar is not applicable to the present case. It would be in order to reproduce the said provision which reads as under:- '8. Pending the disposal of a petition under this Order, the Court may direct that execution of any order for imprisonment or fine, against which leave to appeal is sought, be stayed, on such terms as the Court may deem fit: Provided that unless surrender is first made to an order of imprisonment as above, the petition shall not be entertained Provided further, petitions involving bail before arrest may be entertained and posted for hearing if the petitioner undertakes to appear and surrender in Court." 4. The case of the applicants is entirely on different footing and the same is not sensitized by first proviso to Rule 8, which requires surrender to an order of imprisonment before availing the opportunity of filing petition before this Court. In the instant case, the matter pertains to recalling of the order of pre-arrest bail granted to the applicants by the learned Trial Court. in this regard, my view is fortified by the judgment of this Court reported as Zahid Vs. The State (PIn 1991 SC 379) wherein it has been held that bar contained in Rule 8 Order XXIII does not apply in such like cases. It would be advantageous to reproduce relevant portion of the judgment which reads as under:- "It is manifest from the terms of the first proviso that unless surrender is made to an order of imprisonment the petition shall not be entertained Now in this case there is no order of imprisonment that is challenged and the order which is challenged is the order canceling the bail granted to the appellants by the Additional Sessions Judge. Accordingly, the bar contained in the first proviso of Rule 8 does not apply in the circumstances of the present case." Cd. Misc. Appeal No. 30/2022 3 S. Even otherwise, I have noted that in the instant case, second proviso to Rule 8 would be applicable, which states that the petitions involving bail before arrest may be entertained and posted for hearing if the petitioner undertakes to appear and surrender in Court. Learned counsel for the applicants stated at the bar that the applicants are ready and willing to appear and surrender before this Court. Reliance in this regard is placed on the case of Zahid Afzal Vs. The State (PLD 1991 SC 382) wherein in similar situation, when the petitioners surrendered themselves before this Court, the petition for bail before arrest was entertained by this Court. 6. In view of the above, I am of the considered view that the office objection raised by the Institution Officer is not sustainable in the eye of law and the same is overruled. The instant Criminal Miscellaneous Appeal is allowed. Office is directed to entertain the petition and, as it is a bail petition) fix the same in court in the next week. (Justice Sad edMazhar All 2Naqvi) Approved For Reporting

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) Present: MR. JUSTICE UMAR ATA BANDIAL, HCJ MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE MUNIB AKHTAR MR. JUSTICE YAHYA AFRIDI MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI Criminal Original Petition No.148/2022 IN Const.P.19/2022 Federation of Pakistan through Secretary Ministry of Interior Petitioner(s) Versus Imran Ahmed Khan Niazi Respondent(s) For the Petitioner(s) : Ch. Aamer Rehman, Addl.AG for Pakistan For the Respondent(s) : N.R. Date of Hearing : 26.10.2022 ORDER The learned Additional Attorney General for Pakistan has referred to the contents of our order dated 25.05.2022 (afternoon) and our judgment dated 26.05.2022 passed in Constitution Petition No.19 of 2022. From the contents of the said order, he has pointed out that the following undertakings were given by Dr. Babar Awan, learned Sr.ASC and Mr. Faisal Fareed, learned ASC on behalf of the Respondent, Mr. Imran Khan, Chairman, Pakistan Tehreek-e-Insaf (“PTI”) for holding PTI’s rally in the ground situated between Sectors H-9 and G-9, Islamabad: i. The rally will not cause any inconvenience at or blockage of Srinagar Highway; ii. No inconvenience will be caused to the public and citizenry at large; and Crl.O.P.148/22 IN Const.P.19/22 2 iii. The rally will be conducted in a peaceful and lawful manner without damaging any public or private property. He has then read to us material from the reports filed by the Islamabad Capital Territory (“ICT”), Intelligence Bureau (“IB”) and Inter-Services Intelligence (“ISI”) in answer to the questions posed in paragraph-7 of our judgment dated 26.05.2022. After reading extracts from the said reports, the learned Additional Attorney General has submitted that the persons who gave the undertakings as well as the person on whose behalf the said undertakings were given breached the same attracting the offence specified in Section 3 read with Section 2(a) of the Contempt of Court Ordinance, 2003 (“Ordinance”). He has accordingly urged that contempt proceedings be initiated against the Respondent and his two learned counsel named above for their role and liability as accessories. 2. We have read the material and examined the provisions of the Ordinance and Order XXVII of the Supreme Court Rules, 1980. At the present stage, it is necessary that the factual aspects of the alleged breach of the undertakings be ascertained at a prima facie level. This is because although the events that followed the order dated 25.05.2022 (afternoon) and the evidentiary material collected subsequently by the Agencies are damaging, the role and liability of the Respondent as an absent party before the Court is still not clear. Accordingly, we direct that the office shall serve the reports submitted by the three Agencies Crl.O.P.148/22 IN Const.P.19/22 3 together with Criminal M.A.No.1825 of 2022 filed in Criminal Original Petition No.148/2022, upon Mr. Imran Khan, Chairman PTI, Dr. Babar Awan, learned Sr.ASC and Mr. Faisal Fareed, learned ASC to enable them to file their replies to the same. The said persons shall also answer the allegations leveled by the learned Additional Attorney General for Pakistan in light of the material referred through written replies filed on or before 31.10.2022. Thereafter, re-list in the same week. 3. When confronted with our query as to the maintainability of Crl.M.A.No.1738 of 2022, filed under Article 187 of the Constitution, seeking interim relief, the learned Additional Attorney General for Pakistan has sought time to obtain instructions and assist us in the matter. This order shall also be implemented by the office mutatis mutandis in respect of the petitioner in Constitution Petition No.19 of 2022. Chief Justice Judge Judge With profound respect, I maintain my opinion expressed in para-4 of my note added to the order dated 26.05.2022, passed in Constitution Petition No.19 of 2022 and Civil Miscellaneous Application No. 3447/2022. Judge Judge Islamabad, the 26th October, 2022 Sarfraz /* Not approved for reporting

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: Mr. Justice Asif Saeed Khan Khosa Mr. Justice Dost Muhammad Khan Mr. Justice Sajjad Ali Shah Criminal Original Petition No. 154 OF 2017 in Criminal Miscellaneous Application No. 985 of 2017 in Civil Miscellaneous Application No. 2939 of 2017 in Constitution Petition No. 29 of 2016, etc. (Contempt proceedings against Senator Nehal Hashmi on the basis of the speech made by him on 28.05.2017) For the Prosecution: Mr. Ashtar Ausaf Ali, Attorney-General for Pakistan/Prosecutor For the Respondent: Mr. Kamran Murtaza, ASC with the respondent in person Dates of hearing: 01.06.2017, 05.06.2017, 16.06.2017, 23.06.2017, 10.07.2017, 24.07.2017, 13.09.2017 & 24.01.2018 JUDGMENT Asif Saeed Khan Khosa, J.: If the Judges of this Court were weaklings or feeble at heart and if they could be frightened or browbeaten by verbal assaults or naked threats then the respondent namely Senator Nehal Hashmi had surely made a valiant attempt at that. It, however, appears that he and those he wanted to obey or please are poor judges of men. On 20.04.2017 two Members of the Larger Bench of this Court hearing the case of Criminal Original Petition No. 154 of 2017 2 Imran Ahmad Khan Niazi v. Mian Muhammad Nawaz Sharif, Prime Minister of Pakistan / Member National Assembly, Prime Minister’s House, Islamabad and nine others (PLD 2017 SC 265), popularly known as the Panama Papers case, declared the head of the respondent’s political party (the then serving Prime Minister of Pakistan) disqualified to be elected to or remain a member of the Majlis-e-Shoora (Parliament) under Article 62(1)(f) of the Constitution and ordered his criminal prosecution by the National Accountability Bureau before an Accountability Court. Some others very closely related to or connected with him were also ordered to face similar prosecution. On that occasion the other three Members of that Larger Bench decided to get some investigation conducted into the allegations of corruption and corrupt practices leveled against him and others through a Joint Investigation Team (JIT). During the pendency of that investigation the respondent addressed a meeting of the workers of his political party at the Muslim League House, KDA Scheme No. 1, Karsaz Road, Karachi on 28.05.2017 and in his speech he launched an all-out verbal assault upon the Members of the Larger Bench of this Court as well as the members of the Joint Investigation Team and such assault included serious threats not only to them but also to their families and children which threats could not by any stretch of imagination or construction be termed as veiled. An extract from that speech made by the respondent on that occasion is reproduced below: "  � �� زا� � � � � �� زا� � ہو ، � �ر � � � ب� � ! � � روا � ،�او � ب� � �ر�  � � �ڑ� � � � � � ل� ن� � �ر � � روا � � ب� � � ں�۔� �د � ب� ِ م� ار�   ،� � �د � � �ز � ن�� � نا�� ےر� � ں� ےر� � ؤ� � ��ر � � سو� �� جآ  �  � �� � روا  ۔ � ےد � � � م� ��� ،� �ر � � �ر ہ�ز � �� زا� ،راد�� ،�� � ن��  � � � �� � ۔� � � ��� ىد� � � � � � ن� � � � � نؤ� لڈ� � تر� � �او �ر � � �� � � � �۔� ےد � � �ز � � ےر� م� � روا ۔� � � ں� � � � ۔� � " That speech of the respondent was repeatedly telecast on various national television channels and the same received wide national and international publicity. Criminal Original Petition No. 154 of 2017 3 2. The Registrar of this Court brought the matter to the notice of the Hon’ble Chief Justice on 31.05.2017 and his lordship was pleased to order on the same day that the matter may be placed before the Hon’ble Members of the Implementation Bench seized of the issues on the basis of the order passed by the Larger Bench on 20.04.2017. On that very day, i.e. 31.05.2017 the Hon’ble Members of the Implementation Bench unanimously ordered a notice to be issued to the respondent to appear before the Court in person on 01.06.2017 and to show cause why proceedings for committing contempt of Court might not be initiated against him. A notice was also ordered to be issued to the learned Attorney- General for Pakistan in that regard. 3. On 01.06.2017 the respondent appeared before this Court in person and upon his request he was allowed three days’ time to file his reply to the show cause notice. On that date the learned Attorney-General for Pakistan was appointed as the Prosecutor and was directed to collect and place on the record all the necessary material. On 05.06.2017 the respondent’s request for some more time for filing his reply to the show cause notice was acceded to and he was directed to submit the requisite reply within the extended time positively. On 16.06.2017 the respondent was allowed some more time to file his reply to the show cause notice because he had expressed his inability to do the needful without going through the transcript of his relevant speech which was not available with him. On that date of hearing a copy of the transcript of his relevant speech was supplied to the respondent by the learned Attorney-General within the view of the Court. On 20.06.2017 a reply to the show cause notice was filed by the respondent through Criminal Miscellaneous Application No. 1150 of 2017 and in his reply he contested issuance of the said notice and called for its withdrawal. On 23.06.2017 the respondent absented from the Court without any prior permission but the reply to the show cause notice submitted by him was perused by the Court with the assistance of the learned counsel for the Criminal Original Petition No. 154 of 2017 4 respondent and the learned Attorney-General and they were also heard on the issue. After the said preliminary hearing and having remained dissatisfied with the respondent’s reply the matter was adjourned by the Court to 10.07.2017 for framing of the Charge against the respondent. On 07.07.2017 the respondent filed a ‘Further Reply’ to the show cause notice through Criminal Miscellaneous Application No. 1202 of 2017 without seeking any permission from the Court in that regard and towards the end of the said reply he submitted in paragraph No. 21 as follows: “That I am innocent law obeying citizen, member of Senate of Pakistan and Senior Lawyer thus cannot even imagine to commit any act intentionally or willfully which can be taken as against the Judiciary. I say during 30 years of legal practice on entering Court room, the Answering Respondent always paid respect by bowing because the courts. As a lawyer saying sorry before the court is honor itself, therefore, if this Hon. Court points out any fault I will tender unqualified and unconditional apology forthwith in the honor of Bench and Bar. I say neither I interfered nor obstruct in the court process intentionally or willfully.” On 10.07.2017 the respondent was in attendance along with his learned counsel and a Charge was framed against the respondent to which he pleaded not guilty and claimed a trial. The Charge framed against the respondent reads as follows: CHARGE That you Nihal Hashmi son of Sagheer ud Din Hashmi on 28.05.2017 while addressing a public gathering in Muslim League House, Karachi delivered a speech in which you uttered in following words:- "ب� � �او !� ار� �م ِ�ب� � د� � ۔ں� � � ب� � � روا � � �ر � ن� ل� � � � � � �ڑ� � � � ۔جآ �� سو� � � ر�ڈ� � ؤ� � ۔ےر� ں� �، ےر� نا�� � ن�� � �ز � � د� � � ۔۔۔ �ں � �ز� ہو � � ےرادا � ں� � �آ � �آ لاڈ � � �ر ں� ڑ�� � � �"۔ That by way of the aforesaid speech you threatened Judges of the Supreme Court of Pakistan their families and children and Members of the JIT and their families and children; Criminal Original Petition No. 154 of 2017 5 That your above mentioned act tends to scandalize the Court and bring the authority of the Court into hatred, ridicule, disrespect and you thereby obstructed, interfered with and prejudiced the process of law and due course of proceedings of the Supreme Court of Pakistan and by doing so have committed Contempt of the Supreme Court of Pakistan within the meanings of Article 204(2) of the Constitution of the Islamic Republic of Pakistan read with Section 3 of the Contempt of Court Ordinance, 2003 (Ordinance V of 2003) (“the Ordinance”) Punishable under Section 5 of the Contempt of Court Ordinance, 2003 which is cognizable by this Court; We thus proceed to try you on the above charge. Islamabad. July, 10th, 2017. On that date the learned Attorney-General was put on notice and was required to conduct the proceedings on behalf of the prosecution and to file all the relevant documents including a list of witnesses for the prosecution. The respondent was also directed to file all the documents on which he wanted to place reliance and also to file his list of witnesses. The office of this Court was directed to register the matter as a Criminal Original Petition and to fix the same for hearing on 24.07.2017. On 22.07.2017 the respondent filed Criminal Miscellaneous Application No. 1311 of 2017 seeking permission to file a written statement, to adduce evidence in his defence and to appear as his own witness for making a statement on oath. 4. On 24.07.2017 the statement of Haji Adam, Director- General, Pakistan Electronic Media Regulatory Authority (PEMRA) was recorded as CW1 and he produced a Compact Disc containing recording of the relevant speech of the respondent as Exhibit- CW1/1, transcript of the relevant speech of the respondent as Exhibits-CW1/2 to CW1/5 and a list of television channels which had aired parts of the relevant speech of the respondent on 31.05.2017 and 01.06.2017 as Exhibits-CW1/6 and CW1/7. On the same date the learned Attorney-General placed on the record a Criminal Original Petition No. 154 of 2017 6 copy of Criminal Miscellaneous Application No. 1150 of 2017 along with its annexures as Exhibit-P/1 and then he closed the prosecution’s evidence. On that date a request made by the learned counsel for the respondent for permission to add to the reply to the show cause notice already submitted by the respondent was allowed by the Court and the respondent was permitted to do the same within the next two weeks and also to file a list of his witnesses within the said period. On 16.08.2017 the respondent filed Criminal Miscellaneous Application No. 1499 of 2017 containing a ‘Statement’ of the respondent as well a list of his witnesses and in paragraph No. 7(xiv) of that ‘Statement’ the respondent stated as follows: “I say that if this Honourable Court points out any word which tantamount to contempt of this Honourable Court I shall feel no hesitation to tender an unconditional apology and will throw myself at the mercy of this Hon’ble Court without any delay as already stated in further reply.” 5. On the next date of hearing, i.e. 13.09.2017 the learned Advocate-on-Record for the respondent sought an adjournment which was granted because the learned counsel for the respondent could not appear and the learned Attorney-General was abroad in connection with some professional engagements. On the next date of hearing, i.e. 24.01.2018 a statement captioned as ‘Unconditional Apology’ and signed by the respondent as well as his learned counsel was filed before the Court through Criminal Miscellaneous Application No. 67 of 2018 and the operative part of the same reads as follows: “Humbly Sheweth:- 1. That the above noted proceeding is pending before this Hon’ble Court and fixed for today i.e 24.01.2018. 2. That through the accused-respondent initially contested the contempt proceeding but he has now decided that not to contest the same any more as the respect of the Court and the orders passed by it are above from everything, hence in the circumstance he tender his unconditional apology & place him at the mercy of this Hon’ble Court.” Criminal Original Petition No. 154 of 2017 7 This Court passed the following order on that date: “The respondent has tendered an unconditional apology and has placed himself at the mercy of the Court. The learned counsel for the respondent has submitted that the respondent does not want to contest these proceedings. 2. The judgment in the matter is reserved and the same shall be announced in due course.” 6. As the respondent has decided not to contest these proceedings and has submitted an unconditional apology, therefore, the first question to be answered is as to whether he has committed contempt of this Court or not. Through the relevant speech made by him on 28.05.2017 the respondent had established that he is a firebrand speaker and the tone, the pitch and the delivery of the offending words bear an ample testimony to that but unfortunately on that day he had spewed fire towards a wrong direction. He attacked the judiciary, the judges and those who were tasked by this Court to investigate some allegations of criminal conduct on the part of the respondent’s political leader, his family and others. He launched a verbal tirade and issued naked threats which he now himself realizes to be improper, unwise and imprudent. The offending words uttered by the respondent in the relevant speech, which words are admitted and not denied by him, were nothing but an effort to obstruct, interfere with and prejudice the proceedings pending before this Court and before the Joint Investigation Team working under the direct command and supervision of this Court in the Panama Papers case. In this Court’s order dated 05.05.2017 passed in Civil Miscellaneous Application No. 2939 of 2017 in Constitution Petition No. 29 of 2016 it had clearly been observed that “As the JIT, in essence and substance, is acting on the direction of the Supreme Court of Pakistan, all the Executive Authorities throughout Pakistan shall act in aid of the JIT.” Again in the same matter this Court had clarified and directed on 11.05.2017 that “during the course of investigation all the Members of JIT shall be deemed to be under the Registrar, Supreme Court of Pakistan who shall for all intents and purposes be the Competent Authority for the JIT.” It is not open to any manner of doubt that the offending Criminal Original Petition No. 154 of 2017 8 words uttered by the respondent in public were meant to interfere with, obstruct and prejudice the process of law, justice and this Court and were also intended to bring the authority of this Court and administration of law into disrespect, disrepute or hatred within the meanings of section 3 of the Contempt of Court Ordinance, 2003 (Ordinance No. V of 2003) and Article 204 of the Constitution of the Islamic Republic of Pakistan, 1973. The manner in which the respondent had acted on the occasion was surely prejudicial to the integrity and independence of the judiciary of Pakistan as a whole as it had defamed and brought it into ridicule. While adverting to the provisions of section 18 of the Contempt of Court Ordinance, 2003 (Ordinance No. V of 2003) we have felt satisfied that the contempt committed by the respondent is quite grave and is one which is substantially detrimental to the administration of justice besides tending to bring this Court and the Judges of this Court into disrespect and hatred. Section 5(2) of the said Ordinance dealing with submission of an apology by a person accused of having committed contempt of court does not envisage an automatic acceptance of the apology by the court but makes its acceptance subject to the court’s satisfaction about its bona fide. The apology tendered by the respondent on 24.01.2018 itself mentioned that initially the respondent had contested the proceedings and the same is also evident from his reply to the show cause notice dated 20.06.2017, his ‘Further Reply’ dated 07.07.2017 and his ‘Statement’ dated 16.08.2017. The belated apology submitted by the respondent after about seven months of commencement of these proceedings and at the fag end of such proceedings when the evidence of the prosecution has already been completely recorded and closed speaks volumes about the apology being an afterthought. The conduct of the respondent in this regard impinges upon bona fide of his apology and, thus, the same has not been found to be meriting acceptance. Such apology of the respondent may, however, have some bearing upon the sentence to be passed against him. In view of what has been observed above the respondent is held guilty of committing contempt of this Court as charged. Criminal Original Petition No. 154 of 2017 9 7. The next question to be considered is about the sentence to be passed against the respondent. Although the offending words publically uttered by the respondent, which words had received wide publicity nationally as well internationally, amounted to a grave contempt of this Court yet there are some mitigating circumstances available warranting withholding the maximum sentence provided for the offence by the law. The respondent is about sixty years of age, he is an Advocate for the last about thirty years, he has submitted an unconditional apology though belatedly, he has thrown himself at the mercy of the Court and has decided not to contest these proceedings and upon his conviction for the offence of contempt of court he is to be visited with a disqualification under Article 63(1)(g) of the Constitution. 8. For what has been discussed above the respondent is convicted for the offence under section 3 of the Contempt of Court Ordinance, 2003 (Ordinance No. V of 2003) read with Article 204(2) of the Constitution of the Islamic Republic of Pakistan, 1973 and is sentenced under section 5(1) of the said Ordinance to simple imprisonment for one month and a fine of Rs. 50,000/- (Rupees fifty thousand only) or in default of payment thereof to undergo simple imprisonment for a further period of fifteen days. He is to be taken into custody and he shall be lodged in the Central Prison, Rawalpindi for serving his sentence. 9. As the respondent has been convicted and sentenced by this Court for acting in a manner prejudicial to the integrity and independence of the judiciary of Pakistan and for defaming and bringing the judiciary into ridicule, therefore, by virtue of the law declared by this Court in the case of Muhammad Azhar Siddique and others v. Federation of Pakistan and others (PLD 2012 SC 774) with reference to Article 63(1)(g) of the Constitution of the Islamic Republic of Pakistan, 1973 he ipso facto stands disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shoora (Parliament) for a period of five years from today. Let a copy of this judgment be sent to the Election Commission of Criminal Original Petition No. 154 of 2017 10 Pakistan for an immediate appropriate action in that respect. (Asif Saeed Khan Khosa) Judge For reasons purely personal I abstain from recording any opinion. (Dost Muhammad Khan) Judge I agree with my learned brother Asif Saeed Khan Khosa, J. (Sajjad Ali Shah) Judge JUDGMENT OF THE COURT With a consensus of two Members of the Bench and with one Member of the Bench (Dost Muhammad Khan, J.) abstaining Senator Nehal Hashmi respondent is convicted for the offence under section 3 of the Contempt of Court Ordinance, 2003 (Ordinance No. V of 2003) read with Article 204(2) of the Constitution of the Islamic Republic of Pakistan, 1973 and is sentenced under section 5(1) of the said Ordinance to simple imprisonment for one month and a fine of Rs. 50,000/- (Rupees fifty thousand only) or in default of payment thereof to undergo simple imprisonment for a further period of fifteen days. He is to be taken into custody and he shall be lodged in the Central Prison, Rawalpindi for serving his sentence. Criminal Original Petition No. 154 of 2017 11 As the respondent has been convicted and sentenced by this Court for acting in a manner prejudicial to the integrity and independence of the judiciary of Pakistan and for defaming and bringing the judiciary into ridicule, therefore, by virtue of the law declared by this Court in the case of Muhammad Azhar Siddique and others v. Federation of Pakistan and others (PLD 2012 SC 774) with reference to Article 63(1)(g) of the Constitution of the Islamic Republic of Pakistan, 1973 he ipso facto stands disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shoora (Parliament) for a period of five years from today. Let a copy of this judgment be sent to the Election Commission of Pakistan for an immediate appropriate action in that respect. (Asif Saeed Khan Khosa) Judge (Dost Muhammad Khan) Judge (Sajjad Ali Shah) Judge Announced in open Court at Islamabad on 01.02.2018. (Asif Saeed Khan Khosa) Judge Islamabad. 01.02.2018 Approved for reporting. Arif

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE MUNIB AKHTAR MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CRIMINAL ORIGINAL PETITION NO. 21 OF 2021 (Contempt proceedings initiated against Masood-ur-Rehman Abbasi on account of derogatory and contemptuous language) In attendance : Mr. Sohail Mehmood, Addl. Attorney General for Pakistan. Date of Hearing : 22.06.2021 O R D E R It has come to our notice that a speech has been delivered by Masood-ur-Rehman Abbasi, General Secretary, PPP, PS-114, Karachi in which he has made indecent and disrespectful remarks about the Hon’ble Chief Justice of Pakistan that, on the face of it, appear to be derogatory and scandalous. Prima facie, we consider such blatant remarks made by him to constitute contempt of Court under the Constitution of the Islamic Republic of Pakistan and the law. Accordingly, let a show cause notice be issued to him under Article 204 of the Constitution read with Section 3 of the Contempt of Court Ordinance, 2003 to file his reply and show cause why he may not be proceeded against and punished in accordance with law. 2. The Inspector General of Police, Sindh is directed to ensure service of such notice upon the said Masood ur Rehman Abbasi and to make certain his appearance before this Court on the next date of hearing. Notice shall also be issued to PEMRA and FIA CRL.O.P.21/2021 -:2:- to furnish all the relevant record, data and information in respect of the said speech made by Masood ur Rehman Abbasi. 3. Notice be also issued to the learned Attorney General for Pakistan in terms of Order XXVII-A CPC to assist the Court on the next date of hearing. 4. Relist on 28.06.2021. Judge Judge Judge Judge Islamabad, 22.06.2021 Naveed Ahmad + Irshad Hussain/*

IN THE SUPREME COURT OF PAKISTAN (ORIGINAL JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE FAISAL ARAB MR. JUSTICE IJAZ UL AHSAN CRIMINAL ORIGINAL PETITION NO. 36 OF 2017 IN CRIMINAL ORIGINAL PETITION NO. 89 OF 2011, CRIMINAL ORIGINAL PETITION NO. 57 OF 2017 IN CRIMINAL REVIEW PETITION NO. 131 OF 2016 AND CRIMINAL ORIGINAL PETITION NO. 105 OF 2017 IN CRIMINAL REVIEW PETITION NO. 131 OF 2016 (Against the alleged contempt of this Court’s order dated 12.06.2013 passed in Criminal Original Petition No. 89/2011 etc and order dated 21.02.2017 passed in Criminal Review Petition Nos. 131 & 133 of 2016) Zulfiqar Ahmed Lilla and others (In Cr.O.P. 36/2017) Zulfiqar Ahmed Lilla (In Cr.O.P. 57/2017) Rizwan Ahmed Qazi and others (In Cr.O.P. 105/2017) … Petitioners VERSUS I.G. Police, NH & MP, Islamabad (In all cases) … Respondents For the Petitioners: Rai Muhammad Nawaz Khan Kharal, ASC a/w petitioners in person For the Respondent: Ch. Amir Rehman, Addl. Att. General Mr. M.S. Khattak, AOR Date of Hearing: 05.10.2018 JUDGMENT FAISAL ARAB, J.- Petitioners in all these petitions were civil servants working in different government departments. Upon creation of National Highway and Motorway Police (‘NH&MP’), their services were entrusted to it on deputation basis and were later permanently absorbed. Then came the judgment of this Court in the case of contempt proceedings against Chief Secretary, Sindh etc (2013 SCMR 1752) and in compliance thereof their absorption was nullified and they were repatriated to their parent departments. Being aggrieved by such decision, some of the petitioners filed Criminal Review Petition Nos. 131 & 133 of 2016, CRIMINAL ORIGINAL PETITION NO. 36 OF 2017 IN CRIMINAL ORIGINAL PETITION NO. 89 OF 2011, CRIMINAL ORIGINAL PETITION NO. 57 OF 2017 IN CRIMINAL REVIEW PETITION NO. 131 OF 2016 AND CRIMINAL ORIGINAL PETITION NO. 105 OF 2017 IN CRIMINAL REVIEW PETITION NO. 131 OF 2016 2 which were disposed of vide order dated 21.02.2017. It was held that “all those employees who are in BPS-1 to BPS-7 will not be repatriated to their parent departments, rest of the employees who are not in regular police and are not in uniform shall be repatriated to their parent departments, as if they were never absorbed in the Motorway Police.” These three criminal original petitions were filed taking the plea that the respondent is not implementing the judgments of this Court passed in Criminal Original Petition No. 89/2011 and Criminal Review Petition Nos. 131 & 133 of 2016 in their true perspective so contempt proceedings may be initiated against him. The case of the repatriated employees is that the direction of this Court passed in Criminal Review Petition Nos. 131 & 133 of 2016 has been wrongly interpreted as they are regular employees of the Police department; that the judgment passed in Criminal Original Petition No. 89/2011 was only meant for civil servants in Sindh and that the matter with regard to their permanent absorption had attained finality and thus could not have been reopened. 2. This Court in Criminal Review Petition Nos. 131 & 133 of 2016 has specifically held “all those employees who are in BPS-1 to BPS-7 will not be repatriated to their parent departments….” Hence, only those employees who were originally inducted in NH&MP from BPS-1 to BPS-7 are not be repatriated, the rest have to be. The respondent Department is directed to strictly follow this principle. So far as the issue that judgment of this Court passed in Criminal Original Petition No. 89/2011 was only meant for civil servants in Sindh is concerned, suffice it is to state that in the said CRIMINAL ORIGINAL PETITION NO. 36 OF 2017 IN CRIMINAL ORIGINAL PETITION NO. 89 OF 2011, CRIMINAL ORIGINAL PETITION NO. 57 OF 2017 IN CRIMINAL REVIEW PETITION NO. 131 OF 2016 AND CRIMINAL ORIGINAL PETITION NO. 105 OF 2017 IN CRIMINAL REVIEW PETITION NO. 131 OF 2016 3 judgment, this Court has settled the fate of all employees who were sent on deputation, therefore, it is to be uniformly applied to the rest of the provinces as well. 3. For what has been discussed above, these contempt petitions are disposed of. CHIEF JUSTICE JUDGE JUDGE Islamabad, the 5th of October, 2018 Not Approved For Reporting Khurram

In the supreme court of pakIstan ( Original Jurisdiction ) BENCH Mr. Justice Amir Hani Muslim Mr. Justice Mushir Alam Mr. Justice Mazhar Alam Khan Miankhel CRL.O.Ps. NO.47, 48 & 50 OF 2016 IN C.R.P.193 OF 2013 & Crl.M.A.No.1822 of 2016. Fida Hussain Shah (in Crl.O.P.47/2016) Ghulam Haider Jamali (in Crl.O.P.48/2016) Faisal Bashir, PSP (in Crl.O.P.50/2016) Syed Fida Hussain Shah (in Crl.M.A.No.1822/2016) … … Petitioners Versus Govt. of Sindh & others … … Respondents For Petitioners (Crl.O.47/16) : Kh. Haris Ahmed, Sr. ASC (Crl.O.48/16) : Mr. Ali Zafar, ASC (Crl.O.50/16) : Ms. Asma Jehangir, ASC On Court Call : Mr. Zameer Hussain Ghumro, AG Sindh Mr. Sarwar Khan, Addl. AG Sindh Date of hearing : 16-02-2017 JUDGMENT AMIR HANI MUSLIM, J.- Through these three Criminal Original Petitions the Petitioners seek implementation of the judgments of this Court reported as Contempt Proceedings against Chief Secretary, Sindh (2013 SCMR 1752) and Ali Azhar Khan Baloch vs. Province of Sindh (2015 SCMR 456). The Petitioners in these three contempt Petitions have inter alia challenged the re-allocation/change of Occupational Groups of the Respondents Allah Dino Khawaja and Sanaullah Abbasi from Foreign Service and Income Tax Group, respectively, to the Police Service of Pakistan (PSP). Crl.O.P.47/2016 2 CRL. O. P. NO.47/2016 2. Khawaja Haris Ahmed, learned Sr. ASC appeared in Crl.O.P 48/2016, on behalf of the Petitioner and contended that this Court in the judgments reported as Contempt Proceedings against Chief Secretary, Sindh (2013 SCMR 1752) and Ali Azhar Khan Baloch vs. Province of Sindh (2015 SCMR 456), has laid down the foundations of a merit based Civil Service in Pakistan. He contended that this Court in the aforesaid judgments has held that no Civil Servant after his appointment to an occupational group, could be re-allocated to any other group. He further contended that directions were issued by this Court to all the Provincial Governments through their Chief Secretaries as well as to the Federal Government to streamline the service structure of civil servants in terms of the principles enunciated in the aforesaid judgments. 3. He next contended that the Respondent A. D. Khawaja, was recommended by the Federal Public Service Commission (FPSC) for appointment to the post of Section Officer in the Foreign Service of Pakistan (FSP) way back in 1986. However, three years thereafter, his group/cadre was changed from FSP to PSP in pursuance of the orders of the then Prime Minister. Similarly, the Respondent Sanaullah Abbasi was appointed in the Income Tax Group as ITO, and was re-allocated the PSP Group in total disregard of law, rules and merit. According to the learned Counsel, the re-allocation of the Occupational Group of the Respondents after their initial appointment was without lawful authority. He, in support of his contention, has relied upon the case of Liaquat Ali Memon Vs. Federation of Pakistan (PLD 1994 SC 556). Crl.O.P.47/2016 3 4. He next contended that the re-allocation of Occupational Group amounted to a transfer which was declared ultra vires by this Court in the aforesaid judgments. He finally submitted that contempt proceedings should be initiated for avoiding to implement the aforesaid judgments of this Court against the officers responsible in this regard. Crl.O.P.48/2016 5. Syed Ali Zafar, learned ASC appeared in Crl.O.P 48/2016, on behalf of the Petitioner had contended that there are only three modes of appointment i.e. initial appointment, appointment by promotion and or appointment by transfer. He further contended that the appointment by way of change of Cadre or Occupational Group was not provided under the law and this Court in its judgment reported as Contempt Proceedings against Chief Secretary, Sindh (2013 SCMR 1752), had issued directives to streamline the service structure of Civil Servants in line with the principles laid down in the aforesaid judgment. 6. He contended that appointment by transfer was a consequence of the initial appointment and a person could not be allowed to travel horizontally out side his cadre to penetrate into a different cadre, service or post through an appointment by transfer. In this regard he referred to the case of Ali Azhar Khan Baloch vs. Province of Sindh (2015 SCMR 456). He next contended that the Prime Minister could not exercise his powers whimsically to change the occupational groups of civil servants and at least the same parameters which were applied to an appointment through transfer should be made applicable to such like cases and if it is a fresh or initial appointment then the criteria of fresh appointment should be followed. Crl.O.P.47/2016 4 Crl.O.P.50/2016 7. Ms. Asma Jehangir, learned ASC appearing on behalf of the Petitioner in Crl.O.P 50/2016, has adopted the arguments advanced by the learned Counsel Khawaja Haris Ahmed and in addition has contended that if the issue involved in the present matter was not covered in the afore- referred judgments, then this Court under Article 184(3) of the Constitution should examine the matter by resorting to its Suo Moto jurisdiction. 8. Mr. Zameer Hussain Ghumro, AG Sindh and Mr. Sarwar Khan, Addl. AG Sindh appeared on behalf of the Government of Sindh and stated that the issue of allocation or re-allocation of Occupational Groups was not covered by the aforesaid judgments, therefore, these Petitions merit dismissal. 9. We have heard the learned Counsels for the Petitioners as well as the learned Advocate General and Additional Advocate General, Sindh. The Learned Counsel for the Petitioners have failed to pin point any portions of the aforesaid judgments which deal with the issue of allocation and re-allocation of Occupational Groups. The aforesaid judgments deal with the issue of deputation, absorption, up-gradation, out of turn promotion, re-employment, appointment by transfer and ante-dated seniority of Civil Servants and Government Servants. The issue in regard to the change in Occupational Group was neither raised during hearing of the said proceedings nor were any findings recorded by this Court therein. We, therefore, are of the considered view that no case of contempt has been made out and these Petitions merit dismissal on that score alone. 10. Khawaja Haris Ahmed, learned Sr. ASC has attempted to argue that the term ‘transfer’ used in the Civil Servants (Appointment, Crl.O.P.47/2016 5 Promotion and Transfer) Rules, 1973, is synonymous to the term ‘re- allocation to a service or group’. He has submitted that if a Civil Servant is allocated a particular Occupational Group and subsequent thereto the Competent Authority on his representation changes the allocation, it would deem to be a transfer from one cadre to another, which this Court in the aforesaid judgments has declared to be without lawful authority. In the first place, the term ‘allocation of a group’ is distinct than the term ‘Cadre’ used in Civil Service Laws. The term ‘Cadre’ is defined in FR 9 (4) “Cadre means the strength of a service or a particular service sanctioned as a separate unit”. The term ‘Service’ and ‘Occupational Group’ is synonymous and has been defined for the first time in Occupation Groups and Services (Probation, Training and Seniority) Rules, 1990 as under : - “viii. “Occupational Group or Service” means any groups or service recruitment to which is made through the competitive examination conducted by the Commission from time to against BPS-17 posts under the Federal Government or any occupational group or service transfer to which is made from the Armed Forces by induction and includes the following: (a) Accounts Group (b) Commerce and Trade Group. (c) Customs and Excise Group (d) District Management Group (e) Foreign Service of Pakistan (f) Income Tax Group (g) Information Group (h) Military Lands and Cantonments Group (i) Office Management Group (j) Police Service of Pakistan (k) Postal Group (l) Railways (Commercial & Transportation) Group; and (m) any other service or group which may be notified by the Government as such.” 11. However, the term ‘Service’ was defined in Civil Service of Pakistan (Composition and Cadre) Rules, 1954, as “Service’ means the Civil Service of Pakistan”. Crl.O.P.47/2016 6 12 We may observe here that transfer from one service or occupational group is dealt with under Section 7(b)(ii) of the Federal Public Service Commission Ordinance, 1977, which reads as under: (b) to advise the President (i) ……….. (ii) on the principles to be followed in making initial appointments to the services and posts referred to in clause (a) and in making appointments by promotion to posts in BS-18 and above and transfer from one service or occupational group to another; and” 13. From perusal of the above provision, it is abundantly clear that the allocation and re-allocation is the sole domain of the Government and is being made under the provisions of the Ordinance of 1977 and not under the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, which have been interpreted in the judgments of Contempt Proceedings against Chief Secretary Sindh (ibid) and Ali Azhar Khan Baloch (ibid). The transfer of a civil servant from one occupational group to another, by no stretch of imagination, could be termed as a horizontal movement from one service or occupational group to another. This Court in the case of Syed Maroof Gilani vs Prime Minister of Pakistan (1996 SCMR 1353), while dealing with the issue of the nature has held as under:- “It may be mentioned that paragraph 14 of the prospectus for the examination clearly stated that the Government had the right to allocate a candidate against any Group/Service irrespective of his or her preference, in public interest, and that no appeal against the decision of the Government in this regard was entertainable. As already indicated, the Federal Public Service Commission found the appellant unsuitable for appointment to the ‘Custom and Excise Group. The decision of the Government not to appoint him to the said group was based upon the advice Crl.O.P.47/2016 7 tendered to it by the Commission which had examined him both orally and through a written test. In the circumstances, it cannot be said that the Government’s decision was arbitrary or whimsical. The appellant has not been able to show that the Federal Public Service Commission was motivated by an ulterior consideration when it declared him unsuitable for the service of his first choice. We, therefore, do not think that this is a fit case for interference by this Court. The appeal is dismissed.” 14. The learned counsel Khawaja Haris has equated the term ‘transfer’ as used in the Civil Servants Act with the term ‘re-allocation’ to a service or group. We respectfully differ with this contention, which in more or less the similar terms have also been argued by the learned counsel, Syed Ali Zafar. 15. We believe that the term ‘transfer’ has been used with posting in section 10 of the Civil Servants Act, 1973, which is reproduced as under: “10. Posting and transfer:- Every civil servant shall be liable to serve any where within or outside Pakistan, in any [equivalent or higher] post under the Federal Government, or any Provincial Government or local authority or a corporation or body set up or established by any such Government; Provided that nothing contained in this section shall apply to a civil servant recruited specifically to serve in a particular area or region; Provided further that, where a civil servant is required to serve in a post outside his service or cadre, his terms and conditions of service as to his pay shall not be less favorable than those to which he would have been entitled if he had not been required to serve.” 16. From the above, the following inference can be drawn: i. It is within the competence of the authorities to transfer a civil servant from one place or post to another to meet the exigencies of service or administration; provided his terms and conditions of service are not adversely affected; ii. A civil servant has no vested rights to claim posting or transfer to any particular place of his choice, nor has he any right to continue to hold a particular post at a particular place; iii. His transfer and posting is limited to the given tenure, or at the pleasure of the competent authorities; Crl.O.P.47/2016 8 iv. Normally, he is not required to acquire any specialized skill or professional training in order to serve at the new post or place; v. His seniority and progression of career in terms of promotion and other benefits of the service are not affected by the transfer and he remains pegged to his batch or group to which he was initially appointed after completing the required common and specialized trainings and after passing the required departmental examinations conducted by the FPSC; vi. He is posted and transferred routinely in the same grade or scale that he possesses in his service or group; unless the rule requires so or allows so. 17. As far as the ‘reallocation to service or group’ is concerned, we believe that though the term ‘reallocation’ has not been defined in the statute but its plane meaning is to “allocate again or in a different way” (Oxford Dictionary). Here the situation is somewhat as under: i. A civil servant is appointed in a new service or group by competent authority, and he loses his ties with his pervious group or service, though his previous service may be counted, if the rules permit; ii. After joining the new service or group he undergoes afresh the required departmental/specialized training, followed by the Final Passing Out Examination (FPOE) conducted by the FPSC; iii. His inter se seniority is re-fixed with the new group or service he joins, normally on the basis of his merit and results obtained in the FPOE; iv. His appointment, unlike a ‘transfer’, is thus irreversible, unless the rules allow him to retain a lien so that he may revert back to his previous service or group within the lien time; v. Normally ‘reallocation’ happens when a civil servant reappears in the CSS examination and his higher merit allows him to opt for a different occupational group form the one he belongs to; vi. There are also instances of ‘reallocation’ of civil servants from one to another group, which have been made under the existing rules by the competent authorities; but they are fundamentally different from the ‘appointment by transfer’ as the latter involves absorption of civil servant in a new department as a result of abolition of his earlier department or post or for meeting any other exigency, subject to the given rules; vii. Moreover, the nature and consequences, if not the form, of the re- allocation to another service or group are the same: a. a civil servant is reappointed to the new group or service; Crl.O.P.47/2016 9 b. his seniority is fixed with the new batch in accordance with his overall merit; c. he loses his ties with his earlier occupational except that he may claim benefits of the time of service; d. he undergoes and qualify the required specialized trainings and examinations, including the FPOE; e. he may be discharged from the service if he fails to successfully completes his probation/trainings and examination. 18. Hence, the reallocation to another occupational group is more akin to the ‘initial appointment’, as provided in Part-III of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, rather than an ‘appointment by transfer’ as contended at the bar. The appointment by transfer is an incidence a posteriori to initial appointment, that is, a civil servant is transferred to another place or post after he has been appointed on regular basis, or when he has been promoted and transferred to a post or group (e.g. from the Provincial Service to APUG in BS-19), or rarely when an occupational group is abolished and he is absorbed into a new group or to meet the exigencies of administration. 19. We may also like to add here that allocation and re-allocation of occupational group is a process, which is completed before appointing a person to a particular service or group. In other words, a person becomes a civil servant after his allocation to a particular service or group. For the aforesaid reasons, the change of group or re-allocation could not be considered at par with transfer or horizontal movement made under the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973. 20. It is also not out of context to mention here that the re- allocation of the Respondents was never challenged by any of the candidates of their batch, on the ground of being arbitrary or whimsical, for Crl.O.P.47/2016 10 more than 26 years till the filing of these proceedings. The Petitioners have failed to demonstrate their locus standi to challenge the re-allocation of the Respondents after more than 26 years. No material has been placed before us to establish that the re-allocation of group to the Respondents was made in an arbitrary manner. 21. These are the reasons for the short order of even date, which reads as under: “For reasons to be recorded later, these Petitions are dismissed alongwith Crl.M.A No.1822 of 2016.” Judge Judge Judge Islamabad, the 16th February 2017. Approved for reporting.

MAQBOOL BAQAR, J.- The above criminal original petition was filed by the petitioners alleging contempt/violation of judgement of this Court rendered in Suo Moto Case No.10 of 2005 on 31.7.2009. 2. The above proceedings were initiated with regard to environmental hazard that was apprehended as a result of the development/construction of New Murree Project in compartment Nos.21 to 38 of Patriata reserve forest, Tehsil Murree, District Rawalpindi over an area of 4111 acres. Various orders were passed, and several reports were submitted during the pendency of the above proceedings. However on 28.7.2009, this Court was informed that the New Murree Development Authority has been dissolved and the New Murree Development project has been disband. The Court thus raised the following two queries for the official representatives appearing in Court to respondent to:- (1) Why the New Murree Development Authority has been dissolved? (2) What measures the Government of the Punjab has taken to ensure that in future no project detrimental to the environment would be launched? In response to the above, the Secretary Environment appeared before the Court on 31.7.2009 and submitted that NOC for Cr.O.P.57/15 2 Environmental Impact Assessment (EIA), was never issued by the Government of Punjab because the environment department was not in favour of New Murree Development Project. He submitted a statement enumerating various measures enforced, to protect the environment in and around Murree. The following of the said measures may be found relevant for the present purpose:- “(ii) All kinds of construction and development activities are banned in these areas. (iii) Across the board application of section 12 and 16 of the Act is being ensured in these areas. The District officer (Environment) Rawalpindi has been directed to carry out effective monitoring of these areas. (iv) All kinds of development activities are banned along both sides of Murree Express Way. (v) No construction allowed within 100 meters along both sides of Murree Express way. (ix) Proponents of thirteen (13) properties i.e. M/s Moin and Jan Associates, M/s Quality Apartment Phase-II, M/s Tourism Development Corporation of Punjab, Awan Market, Abbasi Market, Gulistan market, Raja Hafeez Market, Al-Khair Market, Ajmal Market, Raftar Abbasi market, Saad market and M/s Hakas (Pvt.) Ltd are being proceeded against under section 16 of the Act ibid (Environmental Protection orders have been issued to them). (x) One proponent M/s Judicial Town (Housing Scheme) has been summoned for hearing under section 16 of the Act ibid, whereas M/s Commoner garden, M/s Cr.O.P.57/15 3 Husnain Resorts-I have been advised to restrain from carrying out any constructive/development activity and obey environmental laws.” This Court after narrating the relevant facts and incorporating the relevant portion of various reports submitted during the proceedings, and keeping in view the above reports and assessment, and particularly assessment of ecological significance prepared by WWF, whilst holding that there was no probability of the revival of the project, disposed of the above proceedings through judgment dated 31.7.2009 in the following terms:- “7. It is important to note that in view of the above reports including a comprehensive assessment of ecological significance report prepared by the WWF, there was no probability of the revival of the project. At the time when the project was started, the apprehension of the environmental experts was that nearly 4000 trees (one per cent of the total tree population of the area) would be affected by the aforesaid project, which, in turn, would adversely affect the Patriata Forests, which were responsible for boosting high average of rainfall anomaly in the country (around 1.77 millimetre) as it was situated in the catchments are of simly and rawal dams, which provides drinking water to almost half of the population of Rawalpindi and Islamabad. It is noteworthy that all over the world national parts are developed to preserve flora and fauna facing threat of extension in the wake of modern-day-life development projects Cr.O.P.57/15 4 including mushroom growth of housing projects, recreational facilities, etc. The need is to sensitize the general public to the fundamentals of sustainable development so as to achieve the goal of a healthy environment, not only for the present population, but also for the future generations.; the concerned agencies of the Government including Environmental Protection Agencies at different levels have a heavy onus to discharge in this regard. The Government of the Punjab, considering the environmental hazard posed by the New Murree Development Project, has taken a right decision in disbanding the same. Since the project has been disbanded and presently there is no threat of environmental hazard in the area on account of the project, no further action is called for in the instant proceedings. The suo motu has fructified and the same is disposed of accordingly.” 3. However, through the above petition, the petitioners, namely, Muhammad Asjad Abbasi, Muhammad Faiz and Muhammad Imran, alleged that construction is being raised in Mouzah Mengal and Khatar of Tehsil Murree in violation of the above judgment. However the later two did not pursue their petition. 4. Sardar Muhammad Aslam, learned ASC for the petitioner, in order to substantiate the petitioner’s claim that the judgment is being violated referred to paragraph 4 thereof wherein the measures said to have been enforced as contained in the statement of Secretary Environment were incorporated. Cr.O.P.57/15 5 He submitted that in view of the foregoing no construction work could have been undertaken or continued in the entire Tehsil Murree. Learned counsel emphasised that the construction work is being carried out in the land comprising in Shamalat-e-Deh, which land cannot be broken up for cultivation, or for any other purpose not envisaged by the relevant Wajabul Arz, and such land can also not be partitioned in violation of the provisions of Wajibul Arz. Learned ASC contended that the subject construction is not only permissible under the relevant Wajibul Arz, but is also violative of the provisions of Forest Act, 1927 and the Rules framed thereunder. 5. On the other hand, Mr. Aitzaz Ahsan, learned Sr.ASC appearing for the purchaser of the property in Commoners Flower Valley, and on behalf of Bahria Town respectively, submitted that in the first place the purported contempt application is not maintainable as neither is there any order banning or restricting any construction or development activity beyond 4111 acres land of patriata forest, contained in the judgment dated 31.7.2009 of this Court, nor were the proceedings in the criminal original petition No.57 of 2015 related to any land other than the above land of Patriata Cr.O.P.57/15 6 forest. Learned counsel further submitted that paragraph 4 of the judgment dated 31.7.2009, merely refers to the statement made by Secretary Environment and incorporated the measures said to have been enforced by him to save/avoid environmental degration. Mr. Ahsan further submitted that the perusal of the various measures as enumerated in the aforesaid paragraph make it quite clear that in fact the ban was enforced on carrying out construction without complying with the provisions of section 12 and 16 of the Pakistan Environmental Protection Act, 1997, and that even otherwise such measures/restriction did not form part of the judgment dated 31.7.2009 and therefore the purported contempt application was/is liable to be dismissed. The learned Sr.ASC further submitted that through the contempt petition the petitioner in their petition did not raise any issue pertaining to Shamalat-e-Deh but it was only during the course of arguments that such issue was raised on behalf of the petitioner. Mr. Ahsan further submitted that contrary to the claim of the petitioners none of the relevant Wajibul Arz placed any restriction on cultivating the land comprising Shamalat-e- Deh, and/or using the same for raising any construction thereon. He submitted that the provision of Wajibul Arz did not Cr.O.P.57/15 7 have the force of law and as defined/described by section 39 of the West Pakistan Land Revenue Act, 1967, is merely a statement of custom respecting rights and liabilities in the estate, and has also been so defined by J.M.Douie in his famous book titled “Settlement Manual” in the following words:- “The Wajib-ul-Arz, or village administration paper, should be a record of existing customs regarding rights and liabilities in the estate.” He submitted that though it has been recognized that at times Wajibul Arz may be recital of the agreements, but such status of the documents, cannot be accepted without any proof and in the present case there is absolutely no proof that the provisions contained in the relevant wajibul Arz are result of any agreement amongst the village proprietary body and the government, as alleged, and therefore the same cannot be used to place any restriction on the proprietor of the land constituting shamalat. Tthe Learned counsel referred to section 3 of the West Pakistan Land Disposal (Saving of Shamilat) Ordinance 1959, which reads as follows:- “3. Shamilat not included in disposition of land unless specifically mentioned as subject matter of the disposition.- (I) Notwithstanding any law, usage or custom to the contrary, in any disposition of land, whether testamentary or Cr.O.P.57/15 8 otherwise, effected by the maker by means of a writing or orally and whether made before or after the commencement of this Ordinance, words or phrases of a general nature, purporting to convey rights, or interests incidental, contingent or collateral, to that land, shall not be so construed as to include unless such shamilat or a portion thereof has been specifically mentioned as the subject matter of the disposition.” He submitted that the above provisions clearly recognise the right of selling of his share by the joint owner in the Shamalat- e-Deh and thus any restriction on the rights of such owner to alienate or sell his share in the shamalat would be violative of the above provision, and also of his fundamental rights, as enshrined/protected by the Constitution. Learned counsel referred to form XXXVI as prescribed under Rule 72 of the West Pakistan Land Revenue Rules, 1968. The specimen whereof shows that the same is titled as “Statement of custom (Wajibul Arz)” and the first heading/item of custom as contained therein reads as follows:- (1) Common land, its cultivation and management, and the enjoyment of the proceeds thereof” Learned counsel submitted that from the very first content of the prescribed form for Wajibul Arz, it can be seen that the common land is certainly cultivatable and there is no Cr.O.P.57/15 9 restriction on cultivating the same as wrongfully claimed. Mr. Ahsan further submitted that the contents of Wajibul Arz are not the same in respect of all the Mouzahs. He pointed out that in respect of Mouzah ‘Mengal’, there is not restriction on partitioning shamilat, and in Mouzah ‘Khattar’, there is no Shamalat-e-Deh, whereas the entire land constituting Shamalat-e-Deh in Mouzah ‘Salkhater’ has been transferred and mutated in the name of the original owners thereof according to their respective shares. Learned counsel contended that there is absolutely no basis for the claim that the rights in the shamalat-e-Deh are confined merely to grazing cattle and no more, as neither the relevant Wajibul Arz nor any law places any such restriction. As per learned counsel, by curtailing the rights and privileges of the owners of Shamalat-e-Deh and restricting its user, merely to grazing grounds, would remove the distinction between shamalat-e- deh, the land comprising wthereof is individually owned by the residents of the Mouzah proportionately and the land comprising ‘Rafah-e-Aam’. Learned Sr.ASC also submitted that no trees have been cut by his clients in violation of any law, or the contents of the Wajibul Arz and has in fact deposited Rs.20 Million with the forest department as ‘replenishment charges’ Cr.O.P.57/15 10 and has also planted more than 1.4 million trees in and around its projects. As regards Rule 4-A and 4-B as contained in the notification No.171 dated 19.3.1909, learned counsel submitted that the Rule 4-A does not pertain to Shamalat-e-Deh but is applicable to the area reserved as Chirah Gah and is thus not relevant whereas Rule 4-B only placed a condition of obtaining sanction of the provisional government before the Shamalat-e-Deh is partitioned. He submitted that such restriction has not been recognized by the subsequent relevant law, being West Pakistan Land Disposal (Saving of Shamilat) Ordinance 1959 which law contrary to placing any restriction on sale of Shamalat land, in terms of section 3 thereof, recognises the owner’s right to sell his share therein. As per learned counsel the purported restriction imposed through rule 4-B cannot even otherwise be sustained in view of the right to enjoy or use the property as enshrined in Article 8,9,23 and 24 of the Constitution and that in terms of Article 23, a citizen’s right to acquire, hold and dispose of property could only be subject to the constitution or any reasonable restriction imposed by law whereas as noted above such right can only be subject to law whereas the relevant law, being West Pakistan Land Disposal Cr.O.P.57/15 11 (Saving of Shamilat) Ordinance 1959, does not place any restriction on the right to sell Shalamat land. Reverting back to Rule 4-B ibid, Mr. Ahsan submitted that though the said rule requires government’s sanction for partition of Shamalat land however there is no rule imposing any penalty on partition without prior sanction and therefore such sanction can also be granted ex-facto. Non- compliance of the requirement prescribed through Rule 4-B does not call for confiscation or retrieval of the land. More so when partitioning or alienating the shamalat land has been a long standing practise and custom, which as noted earlier is not contrary to the relevant law. In support of his contention, the learned Sr.ASC referred to a document containing details about various projects/buildings situated in Shamalat-e-Deh in Rawalpindi and Islamabad, which contains as many as 28 different buildings, official and private, including public buildings such as public hospitals, colleges, housing societies and also the Rawalpindi Bench of the Lahore High Court, and Shifa Eye Hospital, built on such land. The document also contains a note to the affect that in mouzahs in the Potohar region, including Islamabad, 50% of the land comprises Cr.O.P.57/15 12 Shamalat-e-Deh, and all have been partitioned amongst its owners. The position that emerges from the foregoing is that the only objection raised on behalf of petition to the subject construction/development as that such is being done in Shamalat land in violation of the contents of the relevant Wajibul Arz, in as much as, the relevant Wajibul Arz provides that the land therein cannot be partitioned without sanction of the government and that the trees grown within the shamalat land shall be presumed to be owned by the government. In the first place as noted earlier, the document Wajibul Arz could either be a statement of local custom and usage, or can be a recital of agreements. Since nothing has been placed before us to show that the relevant wajibul arz have been prepared with the consent of the village proprietary body and the government, we cannot treat the same as agreement and therefore can only treat them as statement of local custom or usage. Whereas in view of Article 8 of the Constitution any custom or usage or even law, so far it is inconsistent with the fundamental rights conferred by the Constitution, shall to the extent of such inconsistency be, void. And as noted earlier, contrary to the relevant Wajibul Arz and the rules framed Cr.O.P.57/15 13 under the Forest Act which rules have been discussed hereinbefore. The relevant law, being West Pakistan Land Disposal (Saving of Shamilat) Ordinance 1959, “provides for a uniform interpretation of general expression with regard to dispossession of Shamilat” In terms of section 3, recognizes the rights of owner in Shamilat land to sell his share therein. Furthermore any restriction, either through Wajibul Arz, or any rule, which is inconsistent to or in conflict with the provisions of Article 23 and 24 of the Constitution are void. In any event rule 4-A ibid, as noted above, has no relevance, whereas Rule 4-B merely requires that the partition be made after sanction by the government, and as noted earlier the partition not being contrary to any law can always be sanctioned subsequently also. The partitioning of the Shamilat land has been in practice since long and as per the documents referred to hereinabove, almost 50% of the land in Potohar region including, Islamabad, comprises of Shamilat and the same has been partitioned amongst it owners, and a number of housing project and buildings, such as High Court building, Shifa Hospital and Fauji Foundation Hospital, are constructed on such land. As regard the cutting of the tress, as noted above, Bahria Town claims to have deposited substantial Cr.O.P.57/15 14 amount towards replishment charges and to have planted a large number of trees. Further more the question of compliance or non-compliance of the environmental laws and as to whether the subject construction/development is causing any damage to the environment and ecology are sub judice before the Environmental tribunal. In view of the foregoing it would not be just and fair to order retrieval of the subject lands but the issue requires indepth and detailed hearing so that the same be decided after thrashing out material aspects of the case and in view of the relevant law, its implications, more particularly keeping in view that substantial construction/development has already taken place and the government of Punjab has never raised objection to the utilization of the shamilat land like in the present case, and further according to the AG Punjab none from the village proprietary body raised any objection to the subject construction/development before any governmental authority and thus a large number of people have invested their life long saving and the money they raised as bank loans in buying properties therein. The petition therefore be fixed for further hearing. Judge

IN THE SUPREME COURT OF PAKISTAN (ORIGINAL JURISDICTION) PRESENT: MR. JUSTICE EJAZ AFZAL KHAN MR. JUSTICE MAQBOOL BAQAR MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL Criminal Original Petition Nos.59 of 2015, 65, 66, 67, 68, 84, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 105, 104, 112, 113, 140, 227 and 233 of 2016, 50, 89, 88, 87, 86, 68, 70, 71, 72, 73, 74, 75, 76, 77, 78 and 79 of 2017, Crl.M.A. Nos. 752, 863, 909, 910, 918, 862, 911, 912, 973, 974, 891, 892, 1003, 1004, 1021, 1112, 1028, 1044, 1179, 1360, 1424, 1627, 1263, 1717, 1995, 1300, 1303, 1783, 1784, of 2016, 44, 65, 66, 653, 620, 621, 622, 573, 574, 575. 643, 645, 661, 662, 685, 686, 687, 688, 689, 691, 698, 699 and 700 of 2017 AND C.M.Appeal No.126 of 2016 in Const.P.No.Nil of 2016, C.M.Appeal No.159 of 2016 in Const.P.No.Nil of 2016 and C.M.Appeal No.162 of 2016 in Const.P.No.Nil of 2016. (For non-compliance of the judgments of this Court dated 27.8.2013 and 21.7.2014 passed in Civil Appeal No.800-L of 2013 etc. and CP Nos.1270 of 2014 etc. respectively) Muhammad Arif Idress & others …Petitioner(s) VERSUS Sohail Aamir and others. …Respondent(s) For the petitioner(s)/: Applicants Mr. Azhar Siddique, ASC Mr. M.Ozair Chughtai, AOR (absent) (In Cr.O.P.59/16, Crl.M.A.1003, 1004, 1044, 1179, 1360, 1627 of 2016 and 645 of 2017) Sardar Muhammad Aslam, ASC Mr. Anmed Nawaz Chaudhry, AOR (In Cr.O.P.66/16 & Crl.M.A.1995 of 2016) Mr. M. Shahnawaz Sikandari, ASC Mr. Mehmood A.Sheikh, AOR (In Crl.M.A.918, 93, 1112 of 2016) Mr. Kamran Murtaza, ASC Syed Rifaqat Hussain Shah, AOR (In Cr.O.P.67 & 92 of 2016) Kazi Sheheryar Iqbal, ASC Mr. Ahmed Nawaz Chaudhry, AOR (In Cr.O.P.68, 84, 98, 100, 112 of 2016, 88, 68, 70, 71 & 78 of 2017) Mr. Nazir Ahmed Bhutta, ASC Mr. Ahmed Nawaz Chaudhry, AOR. (In Crl.M.A.863, 909, 1717 of 2016 and 689 of 2017) Mr. Abdul Wahid Ch., ASC Mian Ghulam Hussain, AOR (absent) (In Crl.M.A.974 of 2016) -: 2 :- Raja Ghazanfar Ali Khan, ASC Syed Rifaqat Hussain Shah, AOR (In Cr.O.P.97 & 99 of 2016) Raja Muqsit Nawaz Khan, ASC Ch.Akhtar Ali, AOR. (In Cr.O.P.140/16 & 86/17) Mr. M. Habibullah Khan, ASC Mr. Ahmed Nawaz Chaudhry, AOR. (In Cr.O.P.87/17) Mr. Masood Ahmad Zafar, ASC Ch.Akhtar Ali, AOR. (In Crl.M.A.643 of 2017) Mr. Ali Zafar, ASC Mr. Zahid Nawaz Cheema, ASC Syed Rifaqat Hussain Shah, AOR. (In Cr.O.P.65/16, Crl.M.A.65 and 66 of 2017) Mr. Aftab Bajwa, ASC Mr. Mehmood A.Sheikh, AOR. (In Crl.M.A.661 & 688 of 2017) Mr. Aftab Alam Yasir, ASC Syed Rifaqat Hussain Shah, AOR. (In Cr.O.P.227/16, 50, 79 of 2017, Crl.M.A.662, 685, 687, 699 & 700 of 2017) Mr. Tahir Munir Malik, ASC Ch.Akhtar Ali, AOR (In Crl.M.A.1300 of 2016) Ch. Ishtiaq Ahmed Khan, ASC Ch.Akhtar Ali, AOR. (In Crl.M.A.1424 and 1263 of 2016) Qari Abdul Rasheed, ASC Mr. Ahmed Nawaz Chaudhry, AOR. (In Crl.M.A.1303 of 2016) Mr. Muhammad Shah Khawar, ASC Mr. Mehmood A.Sheikh, AOR. (In Cr.O.P.94, 95, 96, 113, 233 of 2016 & 89 of 2017) Mr. Khan Afzal Khan, ASC Syed Rifaqat Hussain Shah, AOR (In Crl.M.A.159 of 2016) Mr. M. Habib Qureshi, ASC Mr. Ahmed Nawaz Chaudhry, AOR (In Crl.M.A.1303 of 2016) Mr. Zulfiqar Ahmed Bhutta, ASC Mr. Ahmed Nawaz Chaudhry, AOR. (In Cr.O.P.105/16, Crl.M.A.653, 72, 73, 74, 75, 76 & 77 of 2017) Raja M.Farooq, ASC Syed Rifaqat Hussain Shah, AOR. (In C.M.Appeal No.126 of 2016) -: 3 :- Mr. Abid S.Zuberi, ASC Mr. Tariq Aziz, AOR. Assisted by Barrister Ayan M.Memon, Farhan Shah, Advocates (In Crl.M.A.620, 621, 622, 573, 574 & 575 of 2017) Mr. Aleem Baig Chughtai, ASC Mr. Arshad Ali Chaudhry, AOR.(absent) (In Cr.O.P.101/16 & Crl.M.A.910 of 2016) Kanwar Iqbal Ahmed Khan, ASC (In Crl.M.A.862 & 912 of 2016) Mr. M.Bashir Khan, ASC Mr. Arshad Ali Chaudhry, AOR (absent) (In Crl.M.A.891& 892 of 2016) Mr. Waseem Majid Malik, ASC Mr. Mehmoodul Islam, AOR (absent) (In Cr.O.P.104/16 & Crl.M.A.1021 of 2016) Mian Muhammad Aslam, ASC Mr. Abdul Majeed Iftikhar Bajwa, AOR. (absent) (In Crl.M.A.691 of 2017) Syed Rifaqat Hussain Shah, AOR. (In Crl.M.A.686 of 2017) Mr. Mehmood A.Sheikh, ASC/AOR. (In Crl.M.A.1783, 1784 of 2016 & 44 of 2017) In person. (In Crl.M.A.1028 of 2016) Nemo. (In Crl.M.A.911 & 973 of 2016 and C.M.Appeal 162/16) For the respondents: Mr. Sohail Mehmood, DAG Mr.M.S.Khattak, AOR. For HGO/ HOAP Mr. Abid S. Zuberi, ASC Tariq Aziz, AOR Assisted by Barrister Ayan M. Memon Farhan Shah, Advocate Date of hearing: 21.04.2017 …………..… ORDER MAQBOOL BAQAR, J.- Through the above Criminal Original Petitions, the petitioners have prayed for initiating proceedings under Article 204 of the Constitution of Islamic Republic of Pakistan, 1973, read with Section 3 of the Contempt of Court Ordinance, 2003, against the respondents for violating this Court’s judgment dated 27.8.2013, rendered in the case of Dossani Travels -: 4 :- (Pvt.) Ltd and others v. M/s Travels Shop (Pvt.) Ltd and others (PLD 2014 SC 1), in terms whereof the respondent were, inter alia, directed to seek guidance from the following recommendations of the Competition Commission of Pakistan in framing the Hajj Policy:- "F. RECOMMENDATIONS 58. Keeping in view the background and the findings, MORA may consider the following two sets of suggestions. These suggestions, if implemented, can address the competition and transparency issues that have been raised. The first set of suggestions assumes that the MORA continues with the quota system in place. The second set of suggestions allow for the possibility of free competition within the overall quota allocated for the HGO Scheme. 59. In case MORA wants to continue with the quota allocation policy to HGO's it is recommended as follows: (a) Currently MORA is allocating Hajj quota only based on Hajj operations performed. Such criteria provide undue advantage to the HGOs who have performed maximum number of Hajj operations, whereas it places the new entrants and the HGOs who have performed lesser number of Hajj operations at a Competition disadvantage. The allocation of quota should be decided, in addition to experience, on various qualitative variables which inter alia includes:- (i) Past performance of Hajj or Umrah or Ziyarat Operations, (ii) Economy of financial packages offered, (iii) Quality of management and services provided, and (iv) The financial strength of the HGOs. Weightage should be allocated to these variables in a manner which does not give undue consideration to experience only. (b) MORA shall also allocate a specific percentage of Hajj quotas to the new entrants to encourage entry of new players in the market and such quota may be allocated based on the separate criteria. (c) …………………………………….. -: 5 :- (d) All the variables mentioned above should be evaluated by a third party, preferably a chartered accountancy firm approved by ICAP, to ensure transparency of the process. (e) MORA should consider forming a panel, whose responsibility will be to monitor all the HGOs. All the complaints against the HGOs shall also be reviewed by that panel. The recommendations and the finding of that panel shall be taken into account when allocating the quota to the HGOs. The panel shall be completely independent to ensure transparency of the process. 60. In the event that MORA would like to consider opening up the market for competition, as has been done in some other jurisdictions, here are some suggestions it should consider. (a) MORA could enlist/approve/license HGO's that meet the criteria as recommended in the previous paragraph and then allow them to offer services to first come basis to intending pilgrims. Such a system would allow the market, most importantly the intending pilgrims, to decide which HGO they prefer. The enlistment/ license could be reviewed based on the feedback received from the market. (b) …………………………… (c) …………………………… 61. The above recommendations are made in order to ensure that the competitiveness and transparency in the Hajj Sector is achieved by providing a level playing field to all the concerned undertakings.” (emphasis supplied) 2. Through the said judgment this Court also directed that the Hajj policy should be framed by a Committee headed by Secretary, Ministry of Religious Affairs, Government of Pakistan (MORA), nominee of the Competition Commission of Pakistan, nominee of Ministry of Foreign Affairs, Government of Pakistan, nominee of Ministry of Law and Justice Division and Parliamentary Affairs and a nominee of Attorney General for Pakistan. It is further -: 6 :- directed that the credential of each application/Hajj Group Organizer (HGO) should be examined and decision taken on merits. (emphasis supplied) 3. The petitioner submitted that the various directions as contained in the aforesaid judgment, including the foregoing, were, as mentioned in the judgment itself, provided so that just, fair, and confidence inspiring policy be framed with regard to the Hajj arrangements and management. 4. The petitioners further submitted that although in pursuance of the above judgment the respondent Nos.1 to 7 invited Hajj packages from all the HGOs, in response whereof the petitioners submitted their respective packages, however, no such package was submitted by the members of the Hajj Group Organizers Association of Pakistan (HOAP), but still, and in clear violation of the above directive of this Court, the respondent, instead of distributing the private sector Quota amongst all the HGOs, granted the whole of such quota to the members of the HOAP exclusively, thus depriving the petitioners of their participation in the Hajj 2017, in clear and brazen violation of the above discussed judgment. The respondents according to the petitioners are therefore liable to be dealt with in accordance with Article 204 of the Constitution and section 3 of the Contempt of Court Act. 5. On the other hand, Mr.Abid S.Zuberi, learned ASC appearing for some of the quota holders HGOs, who along with all other quota holders HGOs, are members of HOAP, submitted that contrary to the claim of the petitioners the impugned allocation has rather been made in pursuance of, and in conformity with, not only the dicta of this Court in Dossani Travels’ case (supra), but also in conformity with the later judgment in Civil Petition Nos.1270, 1308 1309 of 2014, CMA No.4094 of 2014, rendered on 21.7.2014 -: 7 :- (Muhammad Arif Idrees case). Mr. Zuberi further submitted that genesis of this matter lies in the Hajj policy for the year 2013, when on account of an overall reduction in the number of persons permitted to perform Hajj for that year, by 20%, the quota for Pakistani Hujjaj was also slashed in the same proportion. The reduction was made by the Government of Saudi Arabia on account of the ongoing expansion works of Khana Kaaba. The MORA therefore was compelled to reduce the quota for the members of the HOAP, which was to be 50% of the overall national quota, to 40%, however, in order to persuade the members of HOAP for the said reduction, the MORA agreed, and promised to provide to HOAP a quota of 12000 Hujjaj in addition to their original 50% quota, for the Hajj 2014, and thus a Memorandum of Understanding (MoU) was signed between MORA and HOAP on 04.7.2013. The MoU reads:- Subject: MEMORANDUM OF UNDERSTANDING This Memorandum of Understanding is signed between the Ministry of Religious Affairs and Hajj Organizers Association of Pakistan (HOAP) for the adjustment of Hajj Quota for Hajj 2013 on 4th July 2013 at Islamabad. Whereas both parties have mutually agreed and resolved that:- (a) The current reduced allocation of the quota of Private Hajj Group would be increased by 3000 pilgrims for Hajj 2013 (b) For Hajj 2014, the quota granted to Pakistan shall be distributed equally between the private and public sector with an additionality of 12000 pilgrims in the private sector and corresponding reduction in the public sector. (c) The restriction on the Hajj Group Organizers on change in point of departure shall be relaxed for Hajj 2013 to facilitate inter regional accommodation between the members of HOAP. The deadline in the private Hajj Group Organizers fixed earlier 20th July 2013 shall be extended to -: 8 :- 30th Ramazan, 1434 subject to concurrence by Saudi authorities. (d) The change in quota necessitated by the extraordinary circumstances shall be without prejudice to the original quota of Hajj group Organizers in 2013 before announcement of reduction or revision. (e) The distribution of additional 3000 and the subsequent 12000 next year shall be on pro-rata basis amongst all Hajj Group Organizers. (f) That HOAP would facilitate through their Hajj Group Organizers on other Provinces the Hajj Group Organizers of Karachi to fulfill their contractual liabilities for Hajj 2013, and assured to provide a quota upto 5000 with mutual arrangements. 6. The learned counsel submitted that the commitments made by the MORA through the above MoU are of a binding nature, and fully attracts the principle of promissory estoppal, as the member of HOAP have acted on the faith of the said memo, who are therefore entitled to the continued provision of their quota in terms thereof. He submitted that the allocation made to the members of the HOAP as prescribed in terms of the above MOU came under scrutiny before this Court in Dossani Travels’ case (supra) where this Court, after thoroughly examining and analyzing all the factual and legal aspects involved, set-aside the order dated 24.6.2013, whereby a learned Judge of the Lahore High Court directed MORA to allocate the quota retrieved from 19 HGOs, (on account of their poor performance during the preceding Hajj), through a bidding process. Mr. Zuberi also referred to the judgment in Muhammad Arif Idrees case (supra), in terms whereof this Court was pleased to set-aside an interim order passed by the Lahore High Court in a writ petition, restraining MORA from allocating 15000 pilgrims, out of the government scheme to the HGOs who operated during the Hajj 2013, (which allocation was -: 9 :- being made in pursuance of the above MoU), and was also pleased to set-aside a judgment of the said Court in WP No.1332/2014, whereby Hajj policy 2014, to the extent of the aforesaid grant of quota of 15000 pilgrims, was declared without lawful authority, with direction to the MORA to, in the first instance, utilize the said quota itself and in case it is unable to do so, the same be offered to all the tour operators/HGOs registered with the MORA. 7. Mr. Abid Zuberi further submitted that it was on the faith of the aforesaid MoU, and on the assurance of its adherence, that the members of HOAP were persuaded to accept the reduction in their quota of 50% to 40%, for the Hajj 2013 and that it was in pursuance of the above MoU and keeping in view the future prospects thereunder, that the members of HOAP made heavy investments to increase/maintain their capacity and resources to be able to make arrangements of the magnitude commensurate to their respective quotas in terms of the MoU, and also raised their respective paid up capital as required by MORA. Mr. Zuberi further submitted that the judgment of this Court in Dossani Travels’ case (supra) has nowhere ordered the curtailment of the quota as granted/maintained and promised to the members of the HOAP in terms of the aforesaid MoU, and that the orders of the High Courts curtailing the said quota, or for dispensing the same to others through auction, or otherwise, have been set-aside by this Court at least thrice, thus endorsing the legality, propriety and currency of the aforesaid MoU. He submitted that through yet another judgment, rendered in the case of Hajj Organizers Association of Pakistan Islamabad etc. v. Al-Qasim Hajj & Umrah Services (Pvt.) Ltd and another, (in CP No.1180, 1265 and 1297 of 2016 etc.), on 03.5.2016, (the third judgment), this Court found the proposed reduction of the quota of the members of HOAP from 50% of the national quota, to -: 10 :- 40% thereof to be violative of the aforesaid MoU, whereby the original quota in favour of the members of the HOAP has been protected. He further submitted that a vested right in the maintenance of the original quota has been created in favour of the members of HOAP, as relying upon the government representation contained in the MoU they have made substantial investments to improve their Hajj services and also increased their paid up capital as required by the government. Concluding his submissions the learned counsel submitted that it is absolutely misconceived to claim that the allocation of the entire quota for private sector to the members of the HOAP is in any way violative of any direction contained in the Dossani Travels case. On the contrary any reduction in the quota of the members of the HOAP and its allocation to the present petitioners, or to any one else would be contrary to and violative of the dictums of this Court in the afore-discussed cases and urged dismissal of the present petitions. 8. Mr. Sohail Mehmood, learned DAG submitted that the directions given by this Court in the afore-noted judgments have been complied with, to the extent possible. However, since after allocating quota to the Members of the HOAP no surplus quota is available to be allocated to the non-quota holder HGOs, but efforts are underway so that a possibility be created for granting quota to them also. Learned DAG while arguing the matter also referred to the concise statements filed on behalf of respondent No.1, relevant portions whereof have been noted in the later part of the judgment. 9. Hajj is a sacred and a mandatory religious obligation for every adult Muslim with the requisite physical and financial capacity. However, because of a limited capacity and financial resources only a limited number of pilgrims are allowed to visit Makkah Mukarramah and Madinah Munawarah and perform munasik-e-Hajj each year. In -: 11 :- the year 2011 the Kingdom of Saudi Arabia (KSA) allocated a Hajj quota of 179,210 pilgrims for Pakistan. This was in consonance with the ratio of 1000 pilgrims per one million Muslim inhabitants, as decided by the Organization of Islamic Conference in the meeting of its foreign ministers held in the year 1987. 10. The government of Pakistan in order to manage and organize the Hajj arrangements, and for providing various services like boarding, lodging, transportation and other logistic and health care for the pilgrims during the Hajj, evolved two separate schemes, one being the “Government Hajj Scheme” and the other the “Private Hajj Scheme”. The former for those Pakistanis who may want to perform Hajj under government arrangements, and the later for those who may want to make their Hajj arrangements through a private concerns duly enrolled/registered for the purpose with MORA, as a Hajj Group Organizer (HGO), in accordance with service provider agreement between MORA and HGO, and in terms of a separate agreement between the intending Haji and HGO. 11. For a concern or an entity to be recognized as a HGO, it has to meet certain prerequisite and abide by certain terms and conditions prescribed by MORA, and it is only after scrutiny of its credentials, not only by a scrutiny committee, but also by a duly appointed chartered accountant, and as per certain prescribed criteria; that the said concern/entity is enrolled with MORA as a HGO. However, there are two sets of enrolled HGOs. The first set comprises of 743 HGOs, who have been allocated Hajj quota by MORA which is to be renewed every year (the quota holders), who as noted earlier are also the members of HOAP. The second set comprising 2033 HGOs, enrolled in the year 2012, through due process. Though the credential of all these HGOs were scrutinized through six Chartered Accountant firm in the year 2013, as per the -: 12 :- criteria prescribed, to evaluate them for allocation of Hajj quota, however, due to some controversy a re-assessment was ordered, in response 1500 HGOs came forward for re-assessment, and were thus re-assessed accordingly. The entities enrolled in the year 2012 as above, were however not allocated any quota for the years 2014, 2015 and 2016, and according to the MORA, though Hajj formulation committee deliberated upon the issue of allocation of Hajj quota to the said newly enrolled companies/HGOs but could not decide the matter on account of non-availability of Hajj quota, and more so for the reason that the committee recommended that the restored quota (perhaps referring to revival/restoration of 20% quota that was reduced by KSA in the year 2012), be allocated towards the government Hajj scheme. In their comments the MORA further submitted that the Secretary MORA has proposed constitution of a committee to review/scrutinize credentials of all HGOs including those who are newly enrolled, to pave the way for new quota regime before commencement of Hajj operation 2018. 12. It was because of the above deprivation that the newly enrolled HGOs approached the High Courts through various petitions, which culminated in this Court’s afore-noted two judgments. In both the above judgments this court has dealt with peculiar circumstances arising out of a certain background, being, that in the year 2013 after the Government of Pakistan has accepted the application of the intending Hajis under the government Hajj scheme, and issued them facilitation letter, and had also made arrangements accordingly, which certainly were of a massive scale, KSA, on account of the ongoing expansion work of the Khana Kaaba reduced the overall quota for Hujjaj by 20%, which equally affected Pakistan, and thus the Government of Pakistan/MORA, in order to honour its commitment to the Hujjaj, and to utilize the arrangements -: 13 :- made accordingly, persuaded the HGOs, who on account of their past participation had been issued Hajj recognition letters for the Hajj 2013, and had also activated themselves accordingly, to agree to bear the said reduction in the quota, and promised to them that not only their share of 50% in the national quota shall be revived for Hajj 2014, but that the present shortfall shall also be then made good by allocation of an additional quota accordingly, and thus the aforesaid MoU was signed between the parties, further more it was in pursuance of the said MoU that the HGOs started booking Hujjaj for Hajj 2014, obtained their relevant documents including CNICs and passports, and accordingly arranged for their accommodation in Makkah Mukarma and Madinah Munawara by executing rent deeds with the Saudi citizens. It was at this late stage that various petitions were filed before the High Court and therefore two different Benches of this Court set-aside the orders of the High Court through their judgment containing certain directions for MORA, as discussed hereinabove. 13. As regards the judgment dated 03.5.2016 rendered in HOAP’s case (supra), and relied upon by Mr. Abid Zuberi, it may be crucial to note that the learned Judges, while rendering the said judgment, have in their wisdom found it necessary to mention in the judgment itself, that the same “may not be cited as a precedent, which would debar the government from exercising” their “exclusive powers to review/reframe the Hajj policy every year, keeping in view the latest developments and expediencies, which would be subject to the guidelines given by this Court in Dossani’s case (supra)”, and that “there would be no restriction on the government to alter or vary the Hajj policy (quota system)”, and therefore the decision as contained in the said judgment, or any observation made therein, do not stand in the way of the government in framing a just, fair and -: 14 :- lawful Hajj policy, and the same certainly does not come in the way of this Court in passing an appropriate order in the instant matter. The said judgment has in fact sanctified and reinforced the judgment in Dossani Travels’ case which required the government to frame future Hajj policy as directed therein and non-compliance, rather defiance whereof has provided a cause of action for the present petitions. (emphasis supplied) 14. As noted above, the present petitioners are duly enrolled as HGOs with the MORA. Such enrolment was effected after the petitioners applied for the same in response to an advertisement inviting applications for enrolment as HGO from MORA, and only after they fulfilled the requisite qualification and met the prescribed criteria. They also underwent a third party evaluation, and have been scrutinized by chartered accountants duly appointed by the MORA, for the purpose, at least twice. The petitioners, being free citizens of this country, who enjoy certain fundamental right, including their right to enter upon any lawful profession or occupation and to conduct any lawful trade or business, as enshrined by Article 18 of the Constitution, decided to enter into the business of Hajj Organizers/Operators, prepared themselves for conducting and carrying out the said business, and fulfilled the various terms and conditions as prescribed and required by MORA, and thus became legitimately entitled to operate as such, and to their share in the national Hajj quota in accordance with law, which is sine quo non to enable them to function/operate as HGOs. The above registration/ enrolment created a legitimate expectancy in the petitioners, and others like them, of sharing the private scheme quota with the members of the HOAP, but the government/MORA, despite recognizing their right to share the private scheme quota, and despite even having categorically undertaken before this Court as noted -: 15 :- hereunder, has been avoiding/delaying to allocate their shares to the petitioners, and other non-quota holder HGO, on the pretext of “non- availability of surplus quota”. It was in fact in pursuance to this Court’s judgment dated 21.7.2014 in Muhammad Arif Idrees’s case (supra), that MORA furnished before the Registrar of this Court, a compliance report dated 25.5.2015, with the following submissions:- “It is stated that during the policy formulation committee’s meeting held on 12.03.2015, the representative of the commission showed his concerns over blockade of entry of new HGOs in the system. However the chair informed that the Ministry of Religious Affairs has issued letters to the existing HGOs for five years i.e. till 2015 for allocation of Hajj business for their long terms planning as per clause 20(II) of Hajj Policy 2011. So the Ministry will review the quota regime before Hajj Policy 2016 and new quota allocation policy be evolved accordingly. The representative of CCP appreciated the Ministry’s point of view regarding allocation of quota on merits and as per Policy guidelines of the concerned year.” (emphasis supplied) 15. The non-quota holder HGOs are being denied quota merely on the pretext that no surplus quota is available with the government of Pakistan. The quota allocated by KSA to Pakistan is for the people of Pakistan and not for any particular group, segment or association. As noted above the quota for Pakistan is bifurcated by the government of Pakistan into two segments, one under the Government Hajj Scheme and the other for Private Hajj Scheme. There is absolutely no basis, rationale or justification to continue to grant quota only to those who have been granted such quota earlier also, as is presently being done, especially so when fresh entrants have been lured into joining the business/occupation of HGOs, through advertisement and have been enrolled as such through due process, as noted above. In terms of clause (c) of Article 18 of the Constitution, -: 16 :- it is only the Federal or Provincial Government or a corporation controlled by any such government, that can monopolize any trade, business, industry or service to the exclusion of other persons. The artificial, unjust and unfair classification created by MORA between quota holder HGO, and the non-quota holder HGO also offends Article 25 of the Constitution, which guarantees to all citizen equality before and equal protection of law, as the above discussed differentia has no rationale nexus to the avowed objective of the Hajj policy, of developing plans for efficient Hajj arrangements through provision of services and logistics like affordable lodging and boarding, transport and health care during the Hajj, it rather runs contrary thereto. Creating monopoly like in the present case is also violative of clause (c) of Article 18 of the Constitution and defeats the provisions of clause (b) of Article 18 of the Constitution which provides for regulation of trade, commerce and industry in the interest of free competition therein, and as rightly laid down in the case of Arshad Mehmood v. Government of Punjab and others (PLD 2005 SC 193), as long as the trade or business is lawful, the citizen who is eligible to conduct the same cannot be deprived from undertaking the same subject to law which regulate it, and as noted earlier, the petitioners have been duly enrolled and as such permitted to operate as HGO and no handicap or disqualification has been alleged against them. Even in its comments, MORA has submitted that there is no rule that the Hajj quota once allotted cannot be reduced and further that the Hajj quota is allocated to private sector on yearly basis. Furthermore by monopolizing the private Hajj arrangements in the hands of the members of HOAP, the government is also depriving the intending Hujjaj of a larger, or may be better choices of HGO, and is thus facilitating/encouraging their exploitation at the hands of the former. -: 17 :- 16. In fact the issues of competition or monopoly and transparency are since long being raised during the deliberations and meetings of MORA. In fact the representative of the Competition Commission of Pakistan have specifically addressed these issues through their recommendations, as discussed herein earlier and has also pointed out that by allocating Hajj quota on the basis of Hajj operations performed by the HGO, MORA is giving undue advantage to the HGO who have performed larger number of Hajj operations, and is putting the new entrants and the HGO who have performed lesser number of Hajj operations at a competitive disadvantage. This court being cognizant of the above has through its judgment in the case of Dossani Travels (supra), directed MORA that in framing the Hajj policy, it should seek guidance from the aforesaid recommendations of the Competition Commission of Pakistan, and that the credential of each applicant/HGO should be examined and decision regarding allocation of quota be made on merits. 17. In the case of Muhammad Arif Idrees (supra), this Court ordered that directions as contained in the case of Dossani Travels (supra) must be strictly adhered to in formulating Hajj policy in future. Whereas in the case of HOAP v. Al.Qasim Hajj & Umra Services (Pvt.) Ltd. (supra), this Court, whilst holding that government has the exclusive power to review or reform Hajj policy, has bridled the same with the guidelines as contained in Dossani Travels (supra). However, the official respondents in clear violation and defiance of the above dicta of this Court and their clear undertaking as discussed above, are still avoiding to grant any quota to the non-quota holder HGO, including the petitioners, and have thus, prima facie, made themselves liable to be proceeded against accordingly. We would, however, taking a lenient view, grant an opportunity to them to review their decision and reframe their policy, -: 18 :- allocate quota to the petitioners and all other like them in the light of the above judgments. 18. We may however observe here that in doing as above and while following the recommendations of the Competition Commission of Pakistan, MORA and the policy formulating committee may, devise a formula/criteria so that where a HGO achieves a certain quantitative threshold, through a third party audit/evaluation, the number of times it has performed as HGO may not remain relevant, so that any HGO may not suffer on account of being a comparatively newer/junior HGO. The policy be reviewed/reframed in accordance with the foregoing and the compliance report be accordingly submitted within thirty days of the receipt of this order. 19. The titled cases are accordingly disposed of. Foregoing are the reasons for our short order of the even date. JUDGE JUDGE JUDGE Islamabad the, 21st April 2017 APPROVED FOR REPORTING (Aamir Sh.)

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) Present: Mr. Justice Jawwad S. Khawaja Mr. Justice Khilji Arif Hussain Criminal Original Petition No. 70 of 2012. (Contempt proceedings against ‘Weekly Pulse’) For the prosecution: Mr. Shah Khawar, ASC/Prosecutor Dr. Faqir Hussain, Registrar, SCP Mr. Shahid Hussain, PRO, SCP Mr. Umar Salman, DPM, SCP (witnesses) For the alleged contemners: Dr. A. Basit, Sr. ASC Mohsin J. Baig, Editor-in-Chief (Weekly Pulse) Samar Rao, Editor Production, Pulse. Date of Hearing: 04.06.2013 ORDER Jawwad S. Khawaja, J. When this case was called, we asked Mr. Shah Khawar to proceed with the case, call the witnesses for the prosecution because the hearing today had been fixed for this purpose. Dr. A. Basit, learned Sr. ASC, however, intervened and insisted that Crl. MA 329 of 2013 be heard. When he was to proceed with the case, he refused and instead recorded the following statement:- “Having been refused to argue on the basis of Crl.MA 329/2013 which was filed consequent to decision of the Judge-in-Chambers whereby certain affidavits which have been attempted to be placed earlier were returned in original by the Office and the Judge-in-Chambers had allowed the petition to be documented whereafter the relevancy of those affidavits were to be first decided by this Court. Since my entire case is based on the premise that the email allegedly fabricated by me was in fact originated from a computer under the control of the Registrar from a previous address, I will not be in a position to effectively discharge my professional obligations unless Crl.MA No. 329/2013 is first permitted to be presented and adjudicated”. 2. Learned counsel for the respondents also subsequently filed a statement in his own hand writing which has been placed on record. 3. This case has been pending before us since 26.7.2012. The order sheet shows that the respondents were repeatedly given adjournments at their request. Such adjournment requests appear to have been made with the object of delaying the adjudication of this petition. This is evident from the contents of the order sheet which are summarized below: Crl. Org. P. 70 of 2012 2 a) On 1.8.2012 further time for submitting the reply was given to the respondent Mohsin J. Baig and the case was ordered to be re-listed thereafter. b) On 11.9.2012 at the request of Mohsin J. Baig and in the interest of justice, the case was adjourned. c) On 25.9.2012 (i.e. more than 8 months ago) the charge against the respondents was framed and the case was fixed for recording of evidence on 3.10.2012. d) On 3.10.2012 learned counsel representing the respondents made a request for adjournment on the ground that he had not been able to prepare the case and needed some time. This request though unjustified was allowed in the interest of justice and the case was adjourned. e) On 17.10.2012 we observed that both respondents will “have their right to due process and fair trial”. The respondents sought another adjournment. In order to meet the ends of justice and to ensure due process to the respondents, the case was again adjourned for recording of evidence of witnesses on both sides. We also made it clear to the respondents “that further adjournment shall not be allowed because it is in the interest of the alleged contemners and the administration of justice that this matter is brought to an early conclusion”. f) On 4.12.2012 we once again reiterated that the proceedings be concluded at an early date as this would be in the interest of respondents and the administration of justice. We also noted that on 17.10.2012, learned counsel for the respondents had sought an adjournment as he had to go for some surgical procedure and was to be available after 5 days. The case was adjourned for a period longer than that requested to ensure “that the alleged contemners are not prejudiced in any manner”. g) On 18.12.2012 yet another request for adjournment was made on behalf of the respondents. Although we noted that the request for more time was unjustified, we adjourned the case “in order to ensure that the respondents/alleged contemners are not prejudiced in any manner”. h) On 9.1.2013 we observed “we would like to emphasize that the matter has already remained pending for an inordinate period since 26.7.2012. In our order dated 18.9.2012, we had noted that it would be in the interest of the respondents and also in Crl. Org. P. 70 of 2012 3 the interest of justice that this matter is proceeded with and decided without unnecessary delay”. We also ordered that “further adjournment will not be allowed”. i) On 28.3.2013 we noted that “the charge in this case was framed more than six months ago but the trial has not commenced”. We yet again observed that “in order to ensure that the respondents are not prejudiced in their defence and have adequate opportunity of hearing in the case”, the case was adjourned. j) On 9.4.2013 we once again noted the delay in adjudication of these contempt proceedings and observed that “no progress whatsoever has been made despite lapse of more than six months”. However, at the request of the respondents once more the case was adjourned in the interest of justice and in order not to prejudice the respondents in their defence. k) On 30.4.2013 we had noted that the order sheet “gives an indication that the respondents/alleged contemners do not wish that this case should proceed”. However, in order to ensure once again that prejudice is not caused to the respondents and to further the interests of justice, the case was adjourned yet again. It was also ordered that “the case will proceed on the next date of hearing and the respondents should, therefore, ensure attendance of their learned counsel on the said date”. 4. From the above excerpts and references to the order sheet in this case, it is abundantly clear that the respondents have been making all out efforts to delay the adjudication of this case. Such delays are not conducive to the administration of justice. Today in furtherance of the same dilatory tactics, learned counsel referred to Criminal Misc. No. 329/2013, which had been filed on behalf of the respondents on 1.6.2013. This Crl. M.A. purports to be an “application under Order XXXIII Rule 5 and 6 Supreme Court Rule [sic] 1980 read with all other enabling provision [sic] to make appropriate orders to prepare the ground work for cross-examination of the prosecution witnesses in order to prevent miscarriage of justice”. It may be noted that the Crl.MA was filed on 1.6.2013 although it could have been filed much earlier if indeed an order was to be sought as prayed. No valid reason has been given for this delay. Reference made by learned counsel to Criminal Misc. Appeals No. 5 and 6 of 2013, is inapt in this matter Crl. Org. P. 70 of 2012 4 as is evident from the Order dated 5.4.2013. The said Order is reproduced, for ease of reference, as under: “Dr. A. Basit, Sr. ASC for the Appellant in both appeals. Through these appeals filed under Order V Rule 3 of the Supreme Court Rules, 1980, the appellant has questioned the orders of the Institution Officer of this Court dated 28.1.2013 & 4.2.2013 whereby the applications filed by the appellant in Crl. O. P. No. 70 of 2012 were returned being not maintainable. The objections so raised alleged that the affidavit of the appellant contains “scandalous language”, that the affidavit sworn by Mr. Shahid Iqbal and Mr. Alexander Carte were not attested by the High Commission in England and that of Mr. Sajid Bashir sent from England was not sworn before an Oath Commissioner. The authenticity, validity, admissibility of the affidavits and the relevance of their contents to the Crl. O. P. No. 70 of 2012 would be best judged by the learned Bench before which the said contempt proceedings are pending. The appeals are therefore allowed, the impugned orders are set aside and the Criminal Misc. Appeals be numbered and placed before the Hon’ble Bench hearing Criminal Original Petition No. 70 of 2012. Sd/- NASIR-UL-MULK JUDGE” 5. The contents of Crl.MA 329/2013 identify areas of evidence e.g. Report of IT Expert Alexander Carte. The probative value of such evidence will be considered if and when it is properly brought on record. 6. We have gone through the application (Crl. M.A. 329/2013). It is clear from the same that it represents an attempt, to delay the proceedings of this case. The concluding paragraph containing the prayer in the application is worth reproducing. It is as under: “In view of the above, it is prayed that prior to any substantive step is taken in the contempt proceedings, the following points may be taken up for consideration and adjudication: (i) Relevancy of the expert report as also other documents sought to be adduced on the record. (ii) Direction to the Registrar of Supreme Court to arrange for access of the same type to the aforesaid Expert as was granted to him by Copperstones Limited in U.K. Crl. Org. P. 70 of 2012 5 (iii) Any other relief suited to the peculiar facts of this Case may also be granted”. 7. It is obvious from the application and the prayer therein that the relevance of any report as also other documents is a matter to be dealt with once evidence is adduced. The respondent Mohsin J. Baig was asked if the IT expert mentioned in the Crl. M.A. No. 329/13 namely Alexander Carte was presently available for the purpose of accessing the computer in the office of the Registrar. He stated clearly that the expert was not available. The respondent was, therefore, told that the expert should be made available before the next date of hearing and then he could be provided access to such computer because the object of the Court in these proceedings was to ascertain the facts. It is clear that no request for access to the computer in question was sought at any time during the past many months, nor has the availability of the IT expert been assured either today or at any earlier occasion. The respondents were once again informed that the imperatives of fair trial and due process will be assured in this case but they could not be permitted to delay the proceedings any further. 8. Statements of Dr. Faqir Hussain, Registrar, Supreme Court (PW 1), Mr. Shahid Hussain Kamboyo, PRO (PW 2) and Mr. Omar Salman, DPM (PW 3) have been recorded. The documents produced by the witnesses have been duly exhibited. 9. Mr. Mohsin J. Baig requested that his right of cross examination be reserved. Normally such request is not allowed, however, to provide yet another opportunity to the respondents, the matter is adjourned to 10.9.2013 as requested by the respondent on which date the respondent, if he so desires, can cross examine the PWs and also produce his witnesses including the IT expert in defence. The next date has been fixed at the express request of Mr. Mohsin J. Baig who sought the specific date after ascertaining the availability of his witnesses, including the IT expert he seeks to examine as his witness. As such further adjournments will not be allowed. Judge Judge Islamabad, the 4th June, 2013. A. Rehman/* Crl. Org. P. 70 of 2012 6 Witness No. 1. (PW 1) Dr. Faqir Hussain s/o Ghulam Bahadur aged 63 years, presently posted as Registrar, Supreme Court of Pakistan, resident of House No. 3, St. No. 36, F-7/1, Islamabad. (On oath) That I produce my affidavit which bears my signatures Ex.P-1 sworn on 8.12.2012. That whatever is stated in the said affidavit, is correct. I produce downloaded copy of email Ex.P-1/1. I produce publication of news in weekly ‘Pulse’ dated 22.6.2012 which includes news item with the heading “SC Registrar oversteps jurisdiction” as Ex.P-1/2. That on my instructions Mr. Shahid Hussain Kamboyo, Public Relations Officer vide letter dated 21st July, 2012 called upon Mr. Samar Rao, Editor Production to contradict news item published in their Magazine Weekly ‘Pulse’. I produce the same as Ex.P-1/3. I produce copy of news item dated 22- 28/6/12 published in the magazine weekly ‘Pulse’ under the heading “Unanswered Questions” as Ex.P-1/4. I produce copy of news item dated 21-27/6/12 published in the magazine weekly ‘Pulse’ under the heading “When truth is at fault” as Ex.P-1/5. I produce copy of news item dated 28.9.2012 published in the magazine weekly ‘Pulse’ under the heading “The emperor has no clothes” as Ex.P-1/6. XXXXX Respondent stated that in view of the statement made by his counsel, he is not in a position to cross examine the witness and requested that his right of cross examination may be reserved. RO&AC 4.6.2013 Judge Judge Crl. Org. P. 70 of 2012 7 Witness No. 2. (PW 2) Mr. Shahid Hussain Kamboyo s/o Wali Dad aged 31 years, presently posted as Public Relations Officer in the Supreme Court of Pakistan resident of House No. 464, St. No. 17, Shahzad Town, Islamabad. (On oath) That I produce my affidavit which bears my signatures Ex.P-2 sworn on 8.12.2012. That whatever is stated in the said affidavit, is correct. Under the instructions of the Registrar of this Court, I addressed a letter dated 21st July, 2012 to Mr. Samar Rao Editor Production (respondent) through fax and email to publish contradiction of news item to set the record right on the news published in weekly ‘Pulse’ dated 22.6.2012 under the heading “SC Registrar oversteps jurisdiction”. This letter bears my signatures as Ex.P-2/1. Mr. Samar Rao, in reply sent an email on the basis of which news item was published in their magazine and I produce the same as Ex.P-2/2. XXXXX Respondent stated that in view of the statement made by his counsel, he is not in a position to cross examine the witness and requested that his right of cross examination may be reserved. RO&AC 4.6.2013 Judge Judge Crl. Org. P. 70 of 2012 8 Witness No. 3. (PW 3) Mr. Omar Salman s/o Salman Absar aged 30 years, presently posted as Data Processing Manager, in the Supreme Court of Pakistan resident of House No. 171, Lane-6, Askari 10, Rawalpindi. (On oath) That I produce my affidavit which bears my signatures Ex.P-3 sworn on 8.12.2012. That whatever is stated in the said affidavit, is correct. After I came to know about the alleged email published in weekly ‘Pulse’, I conducted an inquiry being the DPM and I produce my report as Ex.P- 3/1. I concluded that the email could not possibly have been originated from the email address i.e. registrar@supremecourtpakistan.com XXXXX Respondent stated that in view of the statement made by his counsel, he is not in a position to cross examine the witness and requested that his right of cross examination may be reserved. RO&AC 4.6.2013 Judge Judge

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: Mr. Justice Asif Saeed Khan Khosa Mr. Justice Ejaz Afzal Khan Mr. Justice Ijaz Ahmed Chaudhry Mr. Justice Gulzar Ahmed Mr. Justice Muhammad Ather Saeed CRIMINAL ORIGINAL PETITION NO. 74 OF 2012 IN SUO MOTU CASE NO. 04 OF 2010 Contempt Proceedings against Raja Pervaiz Ashraf, the Prime Minister of Pakistan in compliance with this Court’s order dated 08.08.2012. In attendance: Raja Pervaiz Ashraf, Prime Minister of Pakistan with Mr. Farooq H. Naik, Federal Minister for Law & Justice. For the Federation: Mr. Irfan Qadir, Attorney-General for Pakistan with Mr. Dil Muhammad Khan Alizai, Deputy Attorney-General for Pakistan. Date of hearing: 18.09.2012 ORDER On the last date of hearing, i.e. 27.08.2012 the Prime Minister of Pakistan Raja Pervaiz Ashraf had appeared before this Court in person alongwith the Federal Minister for Law and Justice and had sought time to understand the issue at hand in all its complexities and to make serious, sincere and earnest efforts to take steps towards implementation of the direction contained in paragraph No. 178 of the judgment handed down by this Court in the case of Dr. Mubashir Hassan and thus, the hearing of this Criminal Original Petition No. 74 of 2012 in Suo Motu Case No. 04 of 2010 2 matter had been adjourned till today. The Prime Minister of Pakistan has again appeared before the Court today and at the outset he has informed that he has already issued the necessary direction to the Federal Minister for Law and Justice to implement the relevant direction contained in paragraph No. 178 of the afore- referred judgment. During the course of his appearance he has, within the view of the Court, once again directed the Federal Minister for Law and Justice regarding implementation of this Court’s above said direction in its letter and spirit. The Prime Minister of Pakistan has gone on to submit that there are certain concerns of the Federation of Pakistan which may be attended to by this Court while finally disposing of the matter and that till such final disposition of the matter his personal appearance may be dispensed with. We appreciate the efforts made by the Prime Minister towards resolution of this long-standing issue and have apprised him that for final disposition of the matter certain steps need to be taken which include a written authorization by the Prime Minister regarding such implementation, drafting of the relevant communication, dispatch of such communication to and receipt of the same by the Swiss and other authorities and final confirmation of such receipt of the relevant communication by the concerned authorities abroad. The Prime Minister has directed the Federal Minister for Law and Justice present in the Court to cooperate with the Court regarding taking of all such steps. We understand that taking of all such steps may require some time for which a time-frame needs to be determined. In this connection the Prime Minister and the Federal Minister for Law and Justice have undertaken that on 25.09.2012 the necessary authorization shall be produced before this Court and a draft communication shall also be made available before this Court for this Court to examine as to whether the same meets the requirements of paragraph No. 178 of the judgment handed down by this Court in the case of Dr. Mubashir Hassan or not. After those stages are over a time-frame shall be fixed by the Court for taking of the remaining steps. Criminal Original Petition No. 74 of 2012 in Suo Motu Case No. 04 of 2010 3 2. Adjourned to 25.09.2012. The appearance of Raja Pervaiz Ashraf, Prime Minister of Pakistan / Chief Executive of the Federation in Court in person in the present proceedings is exempted till further orders. Judge Judge Judge Judge Judge Islamabad 18.09.2012 Arif

IN THE SUPREME COURT OF PAKISTAN (ORIGINAL JURISDICTION) PRESENT: MR. JUSTICE TASSADUQ HUSSAIN JILLANI MR. JUSTICE ASIF SAEED KHAN KHOSA MR. JUSTICE AMIR HANI MUSLIM CRL. ORIGINAL PETITION NO.89/2011, CMA.309-K/2012, CMA.310-K/2012, Crl.M.As. 42-K/2012, 80-K/2012, 87-K/2012, 13-K/2013, CMA.2453/13, Crl. MA.29- K/2013, CMA.131-K/2013, Crl.M.As.185-K/2012, 225/2013, 226/2013, 227/2013, CMAs.244-K TO 247-K/2013, 257-K & 258-K/2013, Crl.M.A, 263/2013, Crl.MA. 282 IN CRL. ORIGINAL PETITION NO.89/2011. CONSTITUTION PETITION NO.71/2011, CMAs. 5547/2013, 2560/2013, 2561- 2565/2013, 2112-2113/2013, 2706-2707/2013, IN CONST. PETITION NO.71/2011. CONSTITUTION PETITIONS NO.21/2013, 23/2003 & 24/2013. CIVIL PETITION NO.6-K/2011 & CMA. NO.278-K/2011, CIVIL APPEALS NO.98-K/2010, 100-K/2010, 12-K/2012 A/W CRL. M.As. 51-K TO 53-K/2012, CMA. 2014/2013, CIVIL APPEAL NO.131-K/2010 A/W 241-K/2012. & CIVIL APPEAL NOS. 183-K TO 185-K/2011. CRL.M.A. 252/2013 IN CRL.M.A.98/2012 IN CRL.M.A. 339/2012. H.R.C. NO. 12995-S/2011 AND H.R.C NO. 2103-G/2011 (On appeal against the judgments in CA.183-K/11 = dt. 17.02.2011, SST, Kcy. in SA.39/2008, CA.12-K/12 = dt. 14.04.2011, SHC, Kcy in Const.P.D-932/09, CA.98/2010 = dt. 23.02.2010, SST, Kcy. in SA.No.1/2009, CA.100-K/10 = dt. 22.03.2010, SST, Kcy. in SA No.65/09, CA.131-K/10 = dt. 31.03.2010, SST, Kcy. in SA No.94/09 and CP.6-K/2011 = dt. 29.10.2010, SST,Kcy. in SA No.66/09) Crl. O.P. 89/2011 : Contempt proceedings against Chief Secretary, Sindh CMA 309-K/2012 : Application by the Prosecutors of Sindh for taking notice against deputation in Civil Service, Sindh CMA 310-K/2012 : Application by Mehdi Hassan Solangi former, TMP against Secretary, Local Government for illegal deputation. Crl.M.A. 42-K/2012 : Maqsood Ahmed Vs. Government of Sindh and others Crl. M.A. 80-K/2012 : Application for striking out name of Agha Maqsood Abbas, DG Lyari Development Authority. Crl. M.A. 87-K/2012 : Application for repatriation of Abdul Wahab Sheikh, Director IB. Crl.Org.P.No.89/11 etc. 2 Crl. M.A. 3-K/2013 & CMA 2453/2013 : Application by Syed Mehmood Akhtar Naqvi Crl. M.A. 29-K/2013 : Application by Mst. Rehmat Abbasi. CMA 131-K/2013 : Application by Syed Mehboob Ali Shah CMA.185-K/2013 : Application by Altaf Bijrani and others Crl.M.A. 225/2013 : Application challenging the “Standing Order No.269/2012 regarding seniority. Crl.M.A. 226/2013 : Application against one Mirza Aamir Baig, Supdt. (Deputee) Crl.M.A.227/2013 : Application by Shah Nawaz, Dy. Supdt. Prison. CMA.244-K/2013 : Application by Dr. Azeem-ur-Rehman Meo, Addl. Secy. CMA.245-K/2013 : Application by Sarwar Khan, Inspector. CMA.246-K/2013 : Application by Imran Atta Sommro and Abida Lodhi, Addl. Secy. Home. CMA.247-K/2013 : Application by Bahar-ud-Din, Inspector. CMA.257-K/2013 : Application by Welfare Organization Officers for repatriation of Certain Officers. CMA.258-K/2013 : Application against excess nominations in PCS cadre. Crl.M.A.263/2013 : Application by Abdul Majeed Siddqui, DIG(Prisons). Crl.M.A.282/2013 : Application by Aghar Masood, Controller of Building, KBCA. Constitution Petition No. 71/2011 : Farooq Azam Memon etc Vs. Province of Sindh through Chief Secretary and others CMA.5547/2012 : Application for impleadment by Dr. Muhammad Ali. CMAs.2560-2565, 2112 2113, 2706 & 2707/2013 : Applications a/w information regarding illegalities committed in appointments in Sindh Civil Services in various departments. Const. Petition No.21/2013 : Ghulam Akbar & others Vs. Province of Sindh and others Crl.Org.P.No.89/11 etc. 3 Const. Petition No.23/2013 : Altaf Bijrani & others Vs. Province of Sindh and others Const. Petition No.24/2013 : Syed Mehmood Akhtar Naqvi Vs. Govt. of Sindh and others Civil Petition 6-K/2011 : Inayatullah Marwat Vs. Government of Sindh through Chief Secretary etc. Civil Appeal 98-K/2010 : Government of Sindh through Chief Secretary and others Vs. Rafique Ahmed Abbbasi Civil Appeal 100-K/2010 : Government of Sindh through Chief Secretary and others Vs. Mumtaz Ahmed Soomro Civil Appeal 131-K/2010 : Government of Sindh through Chief Secretary and others Vs. Aslam Pervez Bhatti CMA.241-K/2012 in CA.131- K/2010 : Application for Impleadment of Moharram Ali Chandio & others Civil Appeal 183-K/2011 : Zubair Pervez Ahmed Vs. Government of Sindh and others Civil Appeal 184-K/2011 : Azim ur Rehman Khan MEO Vs. Province of Sindh through Chief Secretary and others Civil Appeal 185-K/2011 : Asif Jehangir Vs. Province of Sindh through Chief Secretary etc CA 12-K/2012 : Dr. Nasim ul Ghani Sahito and others Vs. Province of Sindh through Chief Secretary CMA 2014/2013 in CA.12- K/2012 : Application for impleadment of Muhammad Rizwan Soomro. Crl.M.A.51-K to 53-K of 2012 in CA 12-K/2012 : Applications for impleadment a/w concise statements of Sheraz Asghar, Shahid Hussain & Zamir Ahmed. HRC 12995-S/2011 : Application by Imdad Ali, ASI and others Crl.Org.P.No.89/11 etc. 4 Attendance. Mr. Abdul Fateh Malik, AG(Sindh) Mr. M. Sarwar Khan, Addl. AG (Sindh) Mr. Adnan Karim, Addl. AG (Sindh) Mr. Irfan A. Memon, Adv. Mr. Naseer Jamali, Secy. (Services), Sindh. Mr. Sohail Qureshi, Addl. Secy. (Services), Sindh. Syed Asif Haider Shah, Secy. (Services), Sindh Mr. Mudasir Iqbal, Sp. Secy. (Home), Sindh. Mr. Ali Sher Jakhrani, AIG Legal (in all cases) Ch. Afrasiab Khan, Sr. ASC (For petitioner in Const.P.71/11, 21/13, for appellant in CA.12-K/12) Mr. M. S. Khattak, AOR (For petitioner in Const.P.21/13 also for Respdt. No.10&12 in Const.P.71/11, for respdt. Nos.10 & 11 in CA.12-K/12) Ch. Akhtar Ali, AOR (For petitioner in Const.P.71/2011, for appellant in CA.12-K/12) Dr. Farough Naseem, ASC (For Respdt. No.3 in Const.P.71/11, for interveners in HRC.12995-S/11) Mr. Mehmood A. Sheikh, AOR (For Respdt. No.3 & 6 in Const.P.71/11) Mr. Abrar Hassan, ASC (For Respdt. No.5 in Const.P.71/11, for respdt. Nos.4&6 in CA.12-K/12) Mr. Anwar Mansoor Khan, Sr. ASC (for Sheraz Asghar in CA.12-K/12, for applicant in Crl.M.A.52-K/12) Miangul Hassan Aurangzeb, ASC (For Respdt. No.6 in Const.P.71/11) Mr. Abbad-ul-Hasnain, ASC. (For Respdt. No.8 in Const.P.71/11, for respdt. No.9 in CA.12-K/12) Mr. Shabbir Ahmed Awan, ASC (For petitioner in CP.6-K/11, also for Respd. No.9 in Const.P.71/11, for Respdt. No.3 in 183 to 185-K/11, for applicant in CMA.80-K/12, Crl.M.A.263/13) Mr. Hashmat Ali Habib, ASC. (For Respdt. No.10 & 12 in Const.P.71/11, for respdt. Nos.10&11 in CA.12-K/12) Mr. M. Aqil Awan, Sr. ASC. (For Respdt. No.11&14 in Const.P.71/11, also for Appellant in CA.183-K to 185-K/11, Respt. in 100-K/10, for Lal Khan in CA.12-K/12) Mr. Muharram G. Baloch, ASC (For applicants in CMA.241-K/12, 185-K/13 & 248-K/13) Raja Muhammad Asghar, ASC (for respdt. No.3 in CA.12-K/12) Mr. Khalid Javed, ASC (for respdt. No.12, and for Shahid Hussain & Zamir Ahmed in CA.12-K/12, for applicant in Crl.MA.51-K/12, for Dr. Sarwat in CMA.309-K/12) Crl.Org.P.No.89/11 etc. 5 Mr. Yawar Farooqui, ASC (for applicant in CMA.80-K/12) Raja Abdul Ghafoor, AOR/ASC (for applicant in CMA.87-K/12 Syed Mehmood Akhtar Naqvi (In person) (Const.P.24/2013) Dr. Azeem-ur-Rehman Meo (In person) (Petition No.10 in Const.P.23/2013, appellant in CA.184-K/11, applicant in 244-K/13) Syed Mehboob Ali Shah (In person) (applicant in CMA.131-K/13) Sarwar Khan, Inspector (in person) (applicant in CMA.245-K/13) Bahar-ud-Din Babar, Inspector (in person) (applicant in CMA.247-K/13) Mr. Khaleeq Ahmed, ASC Mr. Rasool Bux Samejo, Inspector Mr. Pervez Ahmed Sehar (In person) Syed Attaullah Shah, Addl. Dy. Commissioner. Mr. Ghulam Shabbir Jiskani, Hyderabad. Date of hearing : 16th to 19th, 29th & 30th April, 2013 7th, 8th & 9th May, 2013 .-.-.-.-.-.-.-.-.-.- JUDGMENT AMIR HANI MUSLIM, J.- Through these proceedings, the appellants/petitioners/applicants and intervenors have challenged the vires of the following legislative instruments:- 1. The Sindh Civil Servants (Regularization of Absorption) Ordinance, 2011. 2. The Sindh Civil Servants (Regularization of Absorption) Act, 2011. 3. The Sindh Civil Servants (Amendment) Ordinance, 2012. 4. The Sindh Civil Servants (Second Amendment) Ordinance, 2012. Crl.Org.P.No.89/11 etc. 6 5. The Sindh Civil Servants (Amendment) Act, 2013. 6. The Sindh Civil Servants (Second Amendment) Act, 2013. 2. In order to appreciate the issues raised in these proceedings, it is necessary to depict the material facts giving rise to the promulgation of these legislative instruments. The Governor of Sindh on 22.01.2002 amended the Sindh Civil Servants Act, 1973, (hereinafter referred to as the “Act of 1973”) by Sindh Civil Servants (Amendment) Ordinance, 2002. It provided that after section 9, following new section 9-A shall be inserted:- “9-A Notwithstanding anything contained in this Act or any other law for the time being in force or any judgment of any court, a civil servant who provenly exhibits the act of gallantry while performing his duties or very exceptional performance beyond the call of duty, may be granted out of turn promotion or award or reward in such manner as may be prescribed.” The Governor of Sindh on 26.02.2008 amended Act of 1973 through the Ordinance III of 2008, omitting Section 9-A. This Ordinance III of 2008 was not placed before the Provincial Assembly within the period of three months, as such the Ordinance III of 2008 lapsed by operation of law and the original section 9-A which was protected by the 17th Amendment made in the Constitution under Article 270-AA, stood revived. 3. Before 22.1.2002, there was no provision in the Sindh Civil Servants Act relating to out of turn promotions. It was only section 8-A in the Punjab Civil Servants Act (VIII of 1974) which empowered the Punjab government to grant out of turn promotions. The cases of out of turn promotions in the Sindh Police emerged in the Constitution Petitions No.1595 of 2002 along with Constitution Petitions No.434, 954, 987, 1081, Crl.Org.P.No.89/11 etc. 7 1095, 1153, 1536, 2341 and 2342 of 2008 before the Sindh High Court when a learned Division Bench of the Sindh High Court, vide its judgment dated 31.3.2009, allowed the Government of Sindh to revive Rule 8-B of the Sindh Civil Servants (Appointment, Transfer and Promotion) Rules, 1974 (hereinafter referred to as the “Rules of 1974”), with the direction that the cases of out of turn promotions be examined by a committee to be constituted under Rule 8-B and any person aggrieved by the decision of the committee, may approach the appropriate forum for redressal of his grievance. 4. This judgment of the Sindh High Court, was challenged by the aggrieved police officers before this Court, however, the petitions were withdrawn by them on the ground that they will seek review of the said judgment from the Sindh High Court. The Petitioners filed review applications which were disposed of on 21.4.2011 by the Sindh High Court in the terms contained in the judgment dated 31.3.2009. The Sindh Government in compliance with the directions in the aforesaid judgment revived Rule 8-B of the Rules of 1974, but the committee did not scrutinize the cases of out of turn promotions. In order to appreciate the controversy between the parties, the Sindh High Court in the said judgment held as follows by:- 3. At the outset, learned Addl. A.G. Sindh has extended a proposal for the just, fair and equitable redress of the grievances of all the petitioners in these petitions. According to him, these petitions can be disposed of in the terms that the Government of Sindh may be directed to immediately revive the earlier Rule 8-B in the Rules of 1974 introduced by notification dated 10.02.2005 and thereafter to examine individually all the cases of the police officers, who have been awarded promotions after introduction of Crl.Org.P.No.89/11 etc. 8 Section 9-A in the Act of 1973, without following the guidelines and the procedure laid down in the said rule, which facilitated some of the respondents to get out of turn promotions due to their influence and contacts and in the same manner also to examine the case of the other petitioners, who were denied such right on the premises that after 11.05.2005, Rule 8-B was no more in force, therefore, promotion in terms of Section 9-A was not warranted. 4. Mr. Khalid Jawed Khan supporting the proposal of the learned Addl. A.G., contends that in case such proposal gets approval of this Court, the petitioners will not be pressing the relief of declaration that Section 9-A of the Act of 1973 is ultra vires to the provisions of the Constitution of Islamic Republic of Pakistan, 1973, though otherwise, releasing its weak legal position, even the Government of Sindh had issued Ordinance III of 2008, to omit Section 9-A (ibid). He further clarifies that since this ordinance was not placed before the Provincial Assembly for approval, thus it stood expired after 90 days from the date of its issue. 5. The other counsel present in Court representing petitioners and respondents, are in agreement with the proposal of the learned Addl. A.G. as well as the submission of Mr. Khalid Jawed Khan, except Mr. Arshad Tanoli, advocate, who submits that following the principle of locus poenitantiae, his clients, who have already earned the promotion, are protected, therefore, there is no need of reopening of their cases after lapse of considerable time. 6. After careful consideration of his submission, we are of the opinion that a person/litigant, who has availed benefit for promotion under Section 9-A without application of the criteria laid down under Rule 8-B by way of underhand means or by any mode other than merit, cannot get protection of such benefit on the principle of locus poenitantiae, unless he could show that the benefit availed by him was in accordance with law; in good faith and without any ulterior motive or malafide. In this regard, we seek guidance from a recent judgment of the Hon’ble Supreme Court of Pakistan in the case of FARHAT ABBAS VS. I.G. AND OTHERS 92009 S.C.M.R. 245), which also relates to the out of turn promotion in the Police Department, and lays down as under : - “7. The order was recalled by the authority assigning valid reasons to differentiate and to follow the parameters of reward on Crl.Org.P.No.89/11 etc. 9 account of bravery and gallantry as well as appreciation for performance of duty diligently but with due regard to the extent of such appreciation to commensurate with the degree of merit involved. Undoubtedly performance of duty with due diligence and efficiently deserves due appreciation but it cannot be over appreciated out of proportion so as to make out case a grievance to the other employees in service of the department. It a case of glaring favouritism is made out resulting in a mala fide action as in the instant matter, it has to be rectified in accordance with law to avoid any injustice. Such a valid order cannot be set aside merely on conjectures or surmises as such practice would encourage a person to obtain any order using underhand means or otherwise and then claim immunity for such acts which would, therefore, result in rewarding the person using such means by allowing him to continue to enjoy fruits of such ill-gotten gains and thus, perpetuate injustice.” To add force to this view and disapprove the contention of Mr. Tanoli about the applicability of principle of locus poenitantiae to the case of petitioners falling under the second category of petitions, cases of NAZIR AHMED PANHWAR VS. GOVERNMENT OF SINDH THROUGH CHIEF SECRETARY, SINDH AND OTHERS (2005 S.C.M.R 1814) and ABDUL HAQUE INDHAR AND OTHERS VS. PROVINCE OF SINDH THROUGH SECRETARY FOREST, FISHERIES AND LIVESTOCK DEPARTMENT, KARACHI AND 3 OTHERS (2000 S.C.M.R. 907) may also be referred here with advantage. 7. After careful consideration of the proposal extended by Mr. Abdul Fateh Malik, learned Addl. A.G. which is consented by other counsel, except Mr. Arshad Tanoli, we find it just, equitable, fair and practical to redress the grievance of all the petitioners, who are agitating against the out of turn promotions awarded to some other officers in the Police Department, without meeting the requirement and following the procedure prescribed under Rule 8- B of the Rules of 1974. 8. This being the position, we are inclined to accept such proposal and dispose of these petitions in the terms that the Government of Sindh shall take immediate steps for the revival of Rules 8-B, which is even otherwise requirement of law in view of Crl.Org.P.No.89/11 etc. 10 the clear language of Section 9-A (ibid) r/w Section 2(g) of the Act of 1973, in the same lines as already available in the notification dated 10.02.2005. It is painful to observe here that the scheme of working of Section 9-A of the Act of 1973 set out under Rule 8-B (ibid) was disturbed and upset by the then Chief Minister, Government of Sindh at his whims by its illegal cancellation within three months of its introduction, which is evident from his order dated 24.04.2005. 9. We expect that such exercise will be completed by the Government of Sindh within 60 days from the date of this order, whereafter the cases of all the police officials, who are petitioners/respondents in these petitions and have been promoted or deprived promotion after the insertion of Section 9-A, will be re- examined by the committee duly constituted under Rule 8-B, strictly in the light of such rule on merits. Till such exercise is completed by the committee, as an interim arrangement the promotions already granted to some of the Police Officials, will not be disturbed.” 5. The Government of Sindh vide its Notification dated 07.01.2010, repatriated certain deputationists to their parent departments, who were working in the Sindh Government. These deputationists impugned the notification of repatriation in C.Ps.No.D-57 etc before the Sindh High Court at Karachi. On the other hand, the civil servants of the Sindh Government also preferred C.Ps.No.678 of 2009 etc, inter alia, on the ground that the deputationists appointed by the Sindh Government, lacked the requisite qualifications and experience for the posts against which they were working, resulting in infringement of their valuable rights guaranteed under the law. The learned Sindh High Court, by its judgment dated 06.05.2010, dismissed the writ petitions of the deputationists and allowed the writ petitions of the civil servants of the Sindh Government holding therein that deputationists have no vested right to stay in the Sindh Crl.Org.P.No.89/11 etc. 11 Government besides their induction in different departments in the said Government infringes the right of promotion of civil servants of the Sindh Government. 6. Another Constitutional Petition No.1491 of 2010 was filed by Syed Imtiaz Ali Shah and others against the Sihdh Government before a Division Bench of the Sindh High Court at Hyderabad, challenging the appointment of Abdul Hameed Abro, EDO, (Finance, Planning & IT), Tando Muhammad Khan, who was an officer of the Income Tax Group and was transferred and posted as E.D.O (Finance, Planning and I.T) on deputation in the Sindh Government. It was pleaded in the writ petition that the appointment of Abdul Hameed Abro, was in violation of judgments of the learned Sindh High Court as well as of this Court. During the hearing of the writ petition, Secretary Services, Government of Sindh appeared in Court and placed a list of 152 non-cadre officers, who were working in the Sindh Government on cadre posts or field assignments either on deputation or through transfer basis. The Secretary, Services conceded that the deputationists were not qualified to hold the posts against which they were working. By judgment dated 14.12.2010, the learned Division Bench accepted the writ petition and directed the Sindh Government to repatriate all the deputationists to their parent departments and transfer the officers to their own cadres, within 15 days of the communication of the judgment. It was further directed in the judgment that the Sindh Government shall refrain from issuing posting orders of any non-cadre officer to a cadre post by transfer under section 10 of the Civil Servants Act nor shall it depute by transfer any officer from occupational group of the Federal Government or Crl.Org.P.No.89/11 etc. 12 from autonomous body in the Sindh Government except in exigency unless the deputationist meets the criteria of matching qualifications, eligibility and experience to the proposed post. 7. The aforesaid judgment of the Division Bench of the Sindh High Court was challenged before this Court in Civil Petitions No.802-K of 2010 and 4-K of 2011 by some of the deputationists namely Javed Ahmed and others. On 10.1.2011, this Court refused leave to the petitioners, affirming the findings of the learned Sindh High Court in C.P.No.1491-D of 2010. It is pertinent to mention here that the Sindh Government did not challenge the judgment of the Sindh High Court. 8. In the year 2009, Dr. Nasimul Ghani Sahito and others filed Constitution Petition No.D-932 of 2009 before the Sindh High Court challenging the absorption of 12 officers in the Sindh Government. On 2.4.2011, the writ petition was allowed and all the officers except two were ordered to be repatriated to their parent departments. The respondents/absorbees challenged the said judgment of the Division Bench before this Court whereas one of the petitioners Dr. Nasimul Ghani Sahito also challenged the absorption of one of the absorbees namely S.M. Kaleem Makki. This Court granted leave in all these petitions and the appeals were numbered as 404-K, 405 to 413-K and C.A No.12 of 2012. 9. During the pendency of the aforesaid appeals before this Court, the Governor Sindh on 4.5.2011, promulgated the impugned Sindh Civil Servants (Regularization of Absorption) Ordinance, 2011, through which the employees of Federal Government, Corporation, Council, statutory body or Crl.Org.P.No.89/11 etc. 13 any authority absorbed in the Sindh Government as civil servants on or before commencement of the said Ordinance, were validated granting them backdated seniority from the date of their absorptions. On 15.6.2011, as a corollary to this Ordinance, the Sindh Provincial Assembly promulgated the impugned Sindh Civil Servants (Regularization of Absorption) Act, 2011, through which it granted validation to all the employees absorbed at times, granting them backdated seniority from the date of their absorption. 10. On 16.6.2011, Farooq Azam Memon and others filed Constitution Petition No.71 of 2011, in this Court challenging the vires of the Sindh Civil Servants (Regularization of Absorption) Ordinance, 2011, and Sindh Civil Servants (Regularization of Absorption) Sindh Act, 2011. Some of the appellants, who have challenged the judgment of the Division Bench in Constitution Petition No.D-932 of 2009 sought withdrawal of their appeals with the option of revival, after decision of Constitution Petition No.71 of 2011 and Civil Appeal No.12 of 2012, in which the vires of afore- referred instruments were challenged. This Court disposed of the appeals of the appellants allowing them such option. This Court fixed the Constitution Petition No.71 of 2011, by its order dated 2.5.2012. All these matters are listed for hearing before this Bench. 11. On 14.03.2012, while hearing Suo Moto Case No.08 of 2011 at Karachi, the Bench of this Court noticed that Mr. Agha Abid Hussain an employee of Pakistan Telecommunication Corporation was transferred on deputation and posted as Regional Director Sindh Building Control Authority, Sukkur in defiance of this Court’s judgment passed in Civil Petition No.802-K of 2010 and 4-K of 2011. The Additional Advocate Crl.Org.P.No.89/11 etc. 14 General appearing in the matter was directed to file statement justifying his deputation. The Bench further directed the Chief Secretary and the Secretary Services, Sindh Government to appear in Court with the list of all those officers, who were working on deputation in different departments in the Sindh Government. The matter was adjourned to 15.03.2012. 12. On 15.03.2012, in the aforesaid Suo Moto case No.08 of 2011, a report in regard to deputationists working with the Government of Sindh was placed. The Advocate General conceded that some officers were not repatriated to their parent departments and he undertook that such orders will be complied with by the next date of hearing. 13. On 16.03.2012, the Advocate General placed before the Bench of this Court at Karachi, the list of 109 officers who were posted on deputation in the Sindh Government. The Advocate General also made a statement which was incorporated in the Order that the Chief Minister of Sindh did not accord approval to the summary of any of these officers. It was noticed by the Bench that the Sindh Government has willfully withheld the names of many officers, who were working on deputation and an incomplete list was placed before the Sindh High Court hearing C.P.No.D- 1491 of 2010. After the judgment in the aforesaid Petition and in the intervening period, instead of complying with the directives contained in the judgment, the Government of Sindh has further inducted/deputed employees from different departments/organizations in defiance of the Courts orders. The Notification of 15th March 2012 was placed before the Bench of this Court reflected that the officers who were ordered to be repatriated to their parent departments and or working in the non-cadre posts were absorbed Crl.Org.P.No.89/11 etc. 15 against cadre posts without lawful justification. As a result, the office was directed by the Bench to place a separate note before the Honourable Chief Justice of Pakistan with the relevant record for appropriate orders in the matter. This being the important order is reproduced for convenience:- “Today the learned Advocate General has filed a Notification dated 15-3-2012 in regard to repatriation of 81 officers/officials, who after the Judgment of this Court dated 10-1-2011 passed in Civil Petitions No.802-K of 2010 and No.4-K of 2011 titled as Javed Ahmed and others VS. Government of Sindh, had been posted out of cadre, from Government of Sindh to their parent departments. 2. In these proceedings, on 14-3-2012 we queried the learned Additional AG, Mr. Miran Muhammad Shah, as to how Mr. Agha Abid Hussain, Additional Director, SBCA, Sukkur, who was present in Court and was previously employed in the Pakistan Telecommunication Corporation was posted on deputation as Regional Director, SBCA, Sukkur in clear violation of the aforementioned Judgment of this Court whereby Judgment of the learned Sindh High Court (Circuit Bench Hyderabad) passed in CP No.D-1491 of 2010 on 14-12-2010 on the issue, was affirmed. The learned Additional AG sought time and matter was adjourned for 15-3-2012, when the Chief Secretary and the Secretary Service (SGA&CD), Government of Sindh alongwith learned Advocate General have appeared and a formal report of deputationists working in Government of Sindh was placed before us. However, the matter was adjourned to 16-3-2012 with direction to submit a comprehensive report/list of all those officers who are working in Government of Sindh on deputation/inducted from other departments/organizations after the Judgment of this Court referred to herein-above. 3. The report submitted by the Advocate General today depicts that all Government of Sindh in defiance of the aforementioned Judgment of this Court has inducted and or posted on deputation as many 109 officers/employees for which no explanation of any nature has been given by the Secretary (Services). The learned Advocate General, Sindh, however, has made a statement that the Chief Minister, Sindh, did not accord approval to any summary in this regard. 4. Earlier, the Secretary (Services) had furnished a list of such officers/employees, before the Sindh High Court in Crl.Org.P.No.89/11 etc. 16 CP No.D-1491 of 2010, which was reproduced by the learned High Court in its Judgment dated 14-12-2010. Out of the said list many officers were not relieved/repatriated by the Government of Sindh in defiance of the directives of the High Court and this Court, inter alia, on the ground that some of them were absorbed under Sindh Civil Servants (Regulation of Absorption) Act, 2011. In all there were ten police officers who are claimed to have been absorbed in the Sindh Government after the Judgment. It was further stated in the report that three Police Offices were absorbed under the directives of the Sindh High Court passed in CP No.D-500 of 2010 and No.D-420 of 2009. 5. We do not want to further dilate upon the acts of the Sindh Government on this issue. In fact the Law Officers appearing different proceedings filed by the Officers before the Sindh High Court have conceded to the absorption, in contradiction to the plea taken by the Sindh Government before the High Court during hearing in CP No.D-1491 of 2010. There were many other officers who on account of their influence in the Government were not mentioned in the first list provided by the Secretary (Services). In the intervening period, instead of complying with the aforementioned Judgment of this Court, the Government of Sindh has further inducted/deputed officers from other departments/organizations, which act ex-facie is contemptuous and derogatory. We still believe that a number of officers/employees whose names do not appear in the list provided by the Secretary (SGA&CD) have been inducted in the same manner from different departments and or organizations bypassing the service rules and procedures as the Secretary (Services) might not have been provided correct information from all the departments, particularly, Home, Police, Law, Local Government, etc. Even the list submitted was otherwise incomplete. 6. If such actions of the Government of Sindh are allowed to be perpetuated it would destroy the institutions and paralyze the system. This would do away with the fundamental right of promotion of incumbents who have been working in the Sindh Government for years together. The scheme of Service Law provides such protection. Additionally after the Judgment of this Court the Sindh Government was directed to repatriate the deputationists but instead they have inducted deputationists and in some cases absorbed them permanently in order to frustrate the Judgment of this Court. Crl.Org.P.No.89/11 etc. 17 7. Under these circumstances, we feel that actions on the part of Sindh Government warrant interference by initiating contempt proceedings against those who are guilty of willful defiance of the directions of this Court as mentioned hereinabove. The Notification dated 15-3- 2012 placed before us today by which Sindh Government has ordered repatriation of 81 out of cadre officers/officials will not, prima facie, absolved them from facing the contempt proceedings as the Judgment of this Court and Judgment of the Sindh High Court, referred to above, have not been complied with in letter and spirit. 8. Consequently, office is directed to place this order before the Honourable Chief Justice in a separate file, alongwith the orders passed by us on 14-3-2012, 15-3- 2012, copies of the Judgments of this Court in CP No.802-K of 2010 and 4-K of 2011 and of Sindh High Court (Hyderabad Circuit Bench) passed in CP No.D- 1491 of 2010, reports submitted by the Secretary (Services) SGA&CD through Advocate General, Sindh on 16-3-2012 beside other notification dated 15-3-2012 for passing appropriate orders in the matter. For lack of time, main case is adjourned to next sessions.” 14. The Hononurable Chief Justice of Pakistan after perusal of the aforesaid order of the Bench passed in S.M.C.No.8 of 2011 approved initiation of contempt proceedings against the Chief Secretary, Home Secretary and I.G.P Sindh, inclusive of two officers namely Shahid Hussain Mahesar and Shiraz Asghar Sheikh. 15. Pursuant to the aforesaid orders of the Honourable Chief Justice of Pakistan, the office converted the note in Criminal Original and numbered it as Criminal Original No.89/2011. On 2.5.2012, the matter was fixed before a Bench of this Court at Karachi Registry. The Secretary Services put in appearance and informed the Court that as many as 205 officers are working on deputation in the Sindh Government, out of whom the Sindh Crl.Org.P.No.89/11 etc. 18 Government intends to retain 12 officers and rest would be repatriated to their parent departments. The Bench inquired from the Secretary Services to justify their transfer on deputation after the judgment of this Court and as to whether the officers, who were transferred on deputation fulfilled the required criteria laid down in the judgments. He could not offer any plausible explanation. The Secretary Services, has placed before the Court three lists of the officers which included the names of the officers, who continued on deputation after the directives of this Court, and other two lists reflected the names of the officers subsequently transferred on deputation in the Sindh Government. This Court directed that all the officers mentioned in the lists shall stand relieved to join their parent departments except those who were absorbed by the Sindh Government under the Act XVII of 2011, vires of which enactment were challenged in Constitution Petition No.71 of 2011 and Civil Petition No.926 of 2011, before this Court, in which leave to appeal was granted. The officers who claimed to have been absorbed were directed to join the aforesaid proceedings through the said order, however, 8 officers were allowed to be retained by the Sindh Government till the completion of the different projects on which they were working. The Accountant General and Finance Department, Government of Sindh, were directed to stop the salaries and perks of all the officers named in the aforesaid three lists, with the exception of those, who were ordered to be retained and or absorbed by the Sindh Government under the afore-referred enactment. A show cause notice was issued to the Chief Secretary in terms of section 17(3) of the Contempt of Court Ordinance 2003, to appear and explain as to why contempt proceedings should not be initiated against him for willful defiance of the Court’s order. Crl.Org.P.No.89/11 etc. 19 16. On 03.05.2012, the Chief Secretary appeared and tendered an unconditional apology, which was accepted by this Court. A statement was made on his behalf that the officers named in the lists had been relieved in compliance with the orders of this Court passed on 02.05.2012. The Chief Secretary was directed to ensure that the committee constituted under Rule 8-B complete the scrutiny of the out of turn promotions granted to various officers in the Government of Sindh and submit a compliance report. 17. On 04.05.2012, some of the deputationists who were ordered to be repatriated made applications to this Court, inter alia, on the ground that they were also absorbed by the Sindh Government. 18. On 24.05.2012, the Secretary Services appeared in Court and submitted a list of 235 officers working on deputation and were repatriated to their parent departments. Again on 30.08.2012, this Court was informed that some of the deputationists ordered to be repatriated have obtained restraining orders from the Sindh High Court against the Notifications issued by the Sindh Government, pursuant to the directives of this Court. The R & Ps of such cases were called from the Sindh High Court and ultimately, the deputationists who obtained interim orders withdrew their petitions from the High Court and relinquished their charge. 19. On 04.09.2012, the Government of Sindh promulgated Sindh Civil Servants (Amendment) Ordinance, 2012, by which powers were conferred on the Chief Minister to order deputation, absorption, re- employment, appointment on contract and out of turn promotions in the Sindh Government. This Ordinance was followed by another Ordinance Crl.Org.P.No.89/11 etc. 20 called Sindh Civil Servants (Second Amendment) Ordinance, 2012, whereby exclusive powers were conferred on the Chief Minister Sindh, to grant out of turn promotions in the Sindh Police. These Ordinances were challenged before this Court by the civil servants through different petitions/applications agitating their grievance to be joined as party to the proceedings. 20. On 06.09.2012, this Court while hearing Criminal Original Petition No.89 of 2011 and other connected cases, passed the following order:- “In view of the two Ordinances issued by the Governor Sindh in the last two/three days, learned Advocate General, Sindh and other learned ASCs for the parties appearing in these matters request for time to study these Ordinances and their effect on the pending litigation. Adjourned. Personal appearance of the Chief Secretary, Inspector General Police Sindh, Home Secretary and Secretary Services is dispensed with till further orders C.M.A.No.324-K of 2012 Learned ASC for the applicants/interveners in C.M.A.No.324-K of 2012, in view of the Amending Ordinances issued by the Governor Sindh yesterday, providing room for regularization of all out of turn promotions under section 9-A of the Sindh Civil Servants Act 1973 before commencement of this Ordinance, seeks permission to withdraw this application for the time being to pursue their case before the Provincial Government. Such request is acceded to and this C.M.A is dismissed as withdrawn.” 21. Again on 26.02.2013, a Bench of this Court at Karachi while hearing the Criminal Original Petition No.89 of 2011 and other connected matters passed the following order:- “Today, when this petition and other connected petitions have been taken up for hearing Mr. Abdul Fateh Malik, learned Advocate General, Sindh has placed on record a copy of “The Crl.Org.P.No.89/11 etc. 21 Sindh Act No.I of 2013 promulgated by the Provincial Assembly of Sindh, Gazetted on 21st February 2013. 2. Keeping in view the grievances of the petitioners qua the import of such legislation made by Sindh Government, we deem it fit, rather necessary to examine the vires of this amending enactment (Sindh Act No.01 of 2013), inter alia, on the touchstone of Articles 3, 4, 8, 9 and 25 of the Constitution. In order to enable learned Advocate General to make his submissions in this regard, hearing of these cases is now adjourned for the next session of this Court at Karachi Registry, M/s Abdul Hafeez Pirzada and Munir A. Malik, Sr. ASC’s are nominated as Amicus Curaie to assist the Court to the extent of the above posed question of law.” 22. During the hearing of the Criminal Original Petition No.89 of 2011, the Court was informed that the Provincial Assembly has promulgated another Act XXIV of 2013 by which further employees from different departments/ organizations were absorbed and regularized in the Sindh Government. The said enactment was also placed on record. Finally, on 09.04.2013, the Secretary Services was directed to submit before this Court, the following information:- (i) The names of the deputationists, who were absorbed by the Government after order of this Court relieving them to join their parent departments with their dates of absorption. (ii) The names and the details of the officers with their dates of absorption, who were absorbed by the Government from non- cadre to cadre postings mentioning dates of their absorption and the office they were holding prior to their absorption. (iii) The names of all the officers, who were absorbed by the Government from 2008 till 16th March 2013 with the details of their previous office and the dates with the details of the office in which they were absorbed. (iv) the names of officers, who were granted out of turn promotions from 31.3.2009 after the judgment of full Bench of the Sindh High Court in C.P.No.D-1595 till 16th March 2013. Crl.Org.P.No.89/11 etc. 22 (v) The names of the officers who were transferred and posted from 15th February 2013 till 16th March 2013 to different office mentioning their previous postings with the dates of their transfer. (vi) The details of the officers, who are working in OPS mentioning their actual grades and also mentioning the grades to which they are posted against. (vii) The names of the persons who were appointed by the Government from Ist January 2013 till 16th March 2013 and the mode and manner in which the appointments were made. 23. On 13.04.2013, the Secretary Services filed his report containing details sought by the Bench. The Court incorporated the details in its order, relevant portion of which is reproduced here-under:- “The Secretary Services states that in all there were 567 officers, who were placed on deputation by the Sindh Government. Out of these officers, many of them were relieved at times and on 2.5.2012 there remained 235 officers, who were on the deputation. Out of the aforesaid 235 officers, 43 were retained on deputation after they were ordered to be relieved by this Court on 2.5.2012 and subsequently were absorbed pursuant to the Ordinance issued on 4th September 2012 and the enactment dated 16th March 2013. He further submits that this Ordinance and the Act, which were passed on the dates mentioned hereinabove, absorbed the officers other than Mr. Ayub Sanjrani, Abdul Hameed Alvani, Saifullah Billo and Abdul Wahab Shaikh. According to him, these four officers, who are included in the absorption list were absorbed subsequent to the enactment and are not covered by the aforesaid instruments. He submits that this was done by the former Chief Minister. He next contended that in all 66 officers who were absorbed by the Provincial Government, which includes 43 officers and their names have been shown in Annexure “IV” of C.M.A.No.264-K of 2013 (Part-1). According to him, this list also includes the names of the officers who were absorbed from non-cadre posts to cadre posts. According to him as far as the list containing the names of officers from January 2008 till 16th March 2013 is concerned, according to him, there are in all 179 officers, who were absorbed Crl.Org.P.No.89/11 etc. 23 from January 2008 to March 2013, this number includes 66 officers, who have been mentioned in Annexure “V”. He further submits a list of 179 officers, shown as Annexure “VI” to the aforesaid CMA, does not only includes the names of officers, but also subordinate staff, which was absorbed after closure of the Departments. These non-gazetted officers were placed in the surplus pool of the S&GAD and were absorbed in different Departments.” 24. On 16.04.2013, these proceedings were fixed in Court at Islamabad. We informed the parties that we will be examining the vires of all the instruments referred to in Para-1 of this judgment inclusive of the 2nd Amendment Act 2013 passed on 16.03.2013. The Advocate General/Additional Advocate General, Sindh, present in Court were put to notice. The impugned legislative instruments were already placed on record by the government through the Advocate General besides the private parties. Before calling upon counsel representing private parties, we first called upon Mr. Sarwar Khan, the learned Additional Advocate General Sindh, to submit his contentions in support of the impugned enactments. He contended that Articles 101 to 128 empowers Provincial Assembly to promulgate law. 25. He next contended that the impugned instruments were promulgated for the benefit of the general public keeping in view the public interest of the civil servants. He further contended that the instruments were required to be promulgated to remove the anomaly which occurred due to various judgments of this Court and of the Sindh High Court. He further contended that the absorption of the employees under the impugned instruments was ordered with the object to condone illegalities and irregularities to bring home unrest amongst the civil servants. He submitted that the legislative competence of the Assemblies cannot be examined by Crl.Org.P.No.89/11 etc. 24 this Court nor mala fide can be attributed to the legislature. In support of his contentions, he has relied upon the cases of Messrs Elahi Cotton Mills Ltd. Vs. Federation of Pakistan (PLD 1997 SC 582), Haji Ghulam Rasul vs. Government of the Punjab (2003 SCMR 1815), Fauji Foundation vs. Shamimur Rehman (PLD 1983 SC 457). 26. Mr. Sarwar Khan next contended that the first impugned Ordinance/Act promulgated in 2011 validates absorptions of the different employees from 1994 to 15.6.2011 and cannot be construed either discriminative in terms of Article 25 and/ or violative of the Article 8(2) of the Constitution. When confronted as to explain reasons for promulgating six instruments from 15.06.2011 to 21.03.2013, on the common issues already decided by the Sindh High Court and this Court, he could not offer any explanation except submitting that the Provincial Assembly/Governor was competent under the Constitution to promulgate the impugned instruments. 27. Ch. Afrasiab Khan, learned counsel for the petitioners in C.P.No.71 of 2011, C.A.No.12 of 2012 and C.P.No.21/2003 has contended that the impugned Act/Ordinance of 2011 ex-facie are ultra-vires of the fundamental rights guaranteed under Articles, 2-A, 4, 8, 14, 25, 175, 240, and 242 of the Constitution. He submitted that the issue of illegal absorptions which started since 1994 was first challenged by the aggrieved employees in Constitution Petition No.960 of 1996 and by order dated 28.03.1997, the Sindh High Court disposed of the petition in the light of the summary floated by the department to the Chief Minister on 22.03.1995, the relevant portion of the summary is reproduced herein-below:- Crl.Org.P.No.89/11 etc. 25 “4. In fact absorption of above named officers is not covered by the rules, even Section 24 of the Sindh Civil Servants Act would not be of any avail in the case of absorption of these officers who were not civil servants. The Law Department has also confirmed this point of view (F/‘B’). The High Court of Sindh in Constitution Petition No.D-385 of 1991 (Mr. Liaquat Ali Baloch v/s Government of Sindh and others) has observed that no doubt Section 24 of Sindh Civil Servants Act gives a blank cheque to the Government to deal with a civil servant in such a manner as may appear to it to be just and equitable, there must be some rational for it and discretion so conferred upon the Government may only be used judicially and not arbitrarily. Moreover, the appointments made without observing formalities and proper procedure have been held violative of Fundamental Human Rights by the Supreme Court of Pakistan. 5. Though the appointment/absorption of above officers is not covered under the rules as pointed out by the petitioner, their right has accrued to hold the posts. Therefore we cannot at this stage, terminate their service or withdraw the subject notifications. However, it is advisable to refrain from such appointments in future. 6. The position is submitted to the Chief Minister, Sindh for his kind perusal and further orders.” 28. The learned High Court in its concluding Para, reproduced hereunder, has observed as under:- “In these circumstances, we would direct that within a month’s time in case no decision has been taken on the petitioner’s referred appeal, such would be taken and communicated to the petitioner. Alternatively, if decision has been taken but has not been communicated, due communication to the petitioner would follow within the same period. That being done and the matter pertaining to the terms and conditions of the service of the petitioner, which apparently seem to have been adversely affected, the petitioner would be free to go to the Sindh Service Tribunal in accordance with the relevant provisions. Meanwhile, as indicated in para 5 of the aforesaid Summary, no absorptions, clearly accepted to be illegal, would be made.” 29. The learned High Court disposed of the aforesaid Petition restraining the Government that no further absorption would be made in terms, as indicated in Para-5 of the Summary reproduced hereinabove. The learned counsel submitted that since 1994 the affectees have not challenged the absorptions of the employees made by the Sindh Government. According to him, the act of absorption of the Sindh Government was challenged by the affectees and inspite of the restraining orders, the Sindh Government kept on absorbing their blue-eyed in defiance of the Civil Servants Act and the Crl.Org.P.No.89/11 etc. 26 Recruitment Rules. He contended that the provisions of section 24 of the Act of 1973 cannot be resorted to, to cure the inherent defects surfacing absorption. While advancing his arguments, he has contended that a Division Bench of Sindh High Court in C.P.No.D- 932 of 2009 while interpreting section 24 of the Civil Servants Act has held that the powers of the competent authority were very limited and unless the conditions/precedents provided under section 24 are fulfilled the absorption made, would be illegal. He contended that the provisions of section 24 of the Act of 1973 required two pre-conditions to allow the Competent Authority to exercise powers of absorption. In the first place, the powers have to be exercised by the Government through a committee and not by the Chief Minister as an individual. Secondly, person in whose favour such residuary powers are exercised must be a civil servant as defined under the Sindh Civil Servants Act or rules framed there-under. Additionally, such powers have to be exercised in a manner as it appears to be just and equitable. According to him, the act of absorption in the absence of the aforesaid conditions, as contemplated under section 24 of the Act of 1973, would be construed to be colourable exercise of power. 30. He next contended that the impugned Ordinance 2011 which was subsequently converted into the impugned Act XVII of 2011 by the Sindh Assembly violates the scheme of service law guaranteed by the Constitution in terms of Article 240 and 242 of the Constitution. According to him, any law passed by an Assembly and /or Parliament can be examined by this Court, in case if such law is violative of the fundamental rights. He has contended that in the case in hand, neither the impugned Ordinance nor Crl.Org.P.No.89/11 etc. 27 the impugned Act provides the definition of the term “absorption” nor the basis on which the employees, who were not even Civil Servants, were ordered to be absorbed. The impugned legislation has validated absorption of all the employees, without providing protection to it. The learned counsel submitted that the absorption of the employees by the Sindh Government was in conflict with the Act of 1973 and the rules framed there-under. 31. The learned counsel Chaudhry Afrasayab has further contended that the concept of absorption is foreign to the Act of 1973 and the rules framed thereunder. It is only in exceptional cases, where the departments are closed and /or the civil servants in the said department becomes surplus, a surplus pool is created from where these surplus employees can be transferred and posted to other departments subject to their matching qualifications, eligibility and experience, as provided under Rule 9-A of the Rules of 1974. 32. According to the learned counsel, the impugned Ordinance/Act which validates the absorptions is against the basic structure of the Civil Service laws. He submits that Article 240(b) of the Constitution provides the mechanism for appointment to the Service of Province and the posts in connection with the affairs of a Province, whereas Article 242(1B) provides the appointment of the Chairman of Public Service Commission constituted in relation to the affairs of a Province to be appointed by the Governor on advice of the Chief Minister. The Article 242 (2) provides constitution of Public Service Commission entrusted with the powers prescribed by the rules. According to him, pursuant to the mandate of the Constitution, Public Service Commission has been constituted, which is entrusted with the Crl.Org.P.No.89/11 etc. 28 powers to recommend recruitment of the civil servants under the prescribed rules. These recruitment rules are Bible of the civil service structure and no other method parallel to the recruitment rules can be adopted to extend favours to some of the employees by allowing them to be absorbed in the provincial service without recourse to the competitive process through Public Service Commission. He submits that the competence of the legislature, to legislate law is not un-restricted. The learned counsel has referred to the Act of 1973 which defines the selection authority in terms of section 2(3)(i). Section 5 of the said Act prescribes the manner in which the appointments are to be made and section 6 speaks of initial appointment. He submits that the Sindh Government has bypassed the required procedure and without amending the Act of 1973 and /or rules framed there-under has promulgated the impugned Act 2011, which has impaired the fundamental rights of the civil servants. 33. According to the learned counsel the illegal absorptions of the employees could not be given blanket cover by the impugned validation instruments, particularly when such absorbees did not have the matching qualifications, eligibility and competence to be absorbed against the posts, which otherwise could only be secured under the recruitment rules through the competitive process. 34. His next contention was that these impugned legislative instruments were promulgated to defeat and nullify the judgments of this Court and the Sindh High Court on the issue of absorption. He submitted that those who have been absorbed, many of them were deputationists, non- civil servants and were ordered to be repatriated to their parent departments Crl.Org.P.No.89/11 etc. 29 by the Courts. He submitted that the impugned legislative instruments contain non-obstante clause which by itself is violative of the scheme of trichotomy of power provided by the Constitution. In support of his arguments, he has relied upon the cases of Dr. Mobashir Hassan vs. Federation of Pakistan (PLD 2010 SC 265(372)), The Province of Punjab vs. National Industrial Co-operative Credit Corporation (2000 SCMR 567 (597)), Raj Narain vs. Smt. Indira Nehru Gandhi (AIR 1975 SC 2299(2346), Capt. ® Abdul Qayyum vs. Muhammad Iqbal Engineer (PLD 1992 SC 184) and Muhammad Nadeem Arif vs. Inspector General of Police, Punjab Lahore (PLC 2010 CS 924). 35. Dr. Farogh Naseem, learned counsel for Ali Haider, the Respondent No.3 in Constitution Petition No.71 of 2012 in reply to the arguments of Ch. Afrasiab Khan has contended that the judgment in the case of Dr. Mobashir Hassan does not apply to the controversy raised in these proceedings. He contended that the Act XVII of 2011 was promulgated on 15.03.2011 with the sole object to remove the defect in the judgment passed on 02.04.2011 in Writ Petition No.932 of 2009. He further contended that in the Constitution Petition No.71 of 2011, vires of the Act XVII of 2011 were challenged, has become infractuous, as on 21.03.2013, the Act XXIV of 2013 was promulgated which has not been challenged by the petitioner. 36. On query from the Court that if the petitioners have not challenged the subsequent legislation promulgated during the pendency of the proceedings on the same subject, whether this Court in exercise of its suo motu jurisdiction can examine subsequent legislation. Dr. Farogh Naseem fairly conceded that this Court has the power to examine the vires of such Crl.Org.P.No.89/11 etc. 30 legislation. He contended that the Constitution Petition No.71 of 2012 was not maintainable under Article 184(3) of the Constitution, which has a limited scope. According to him the petitioners have raised individual grievances in the petition which falls outside the parameters of Article 184(3) of the Constitution. 37. While elaborating his arguments on the issue of effect of the judgments of the Courts on the impugned legislative instrumetns, the learned counsel has taken us through the different portions of the judgment in the case of Dr. Mobashir Hassan reported in (PLD 2010 SC 265) to persuade us that the judgment in the said case would extend and apply to the criminal cases and not to a statute governing the rights of civil servants. He next contended that once the legislature has validated the absorption of the employees by promulgating the impugned Act, the Respondents, in law, are entitled to its benefit. He however, submitted that section 3(2) of the impugned Act XVII of 2011 which grants backdated seniority to the absorbees under the impugned Act is liable to be struck down. According to him, seniority of an absorbee in the department, to which he is absorbed, has to be kept at the bottom. The previous seniority of such an absorbee cannot be counted in service as it would be discriminatory and against the rights of the employees entered in the encadrement prior in time to the absorbee. 38. He was required by us to formulate his contentions in a manner that all the legislative instruments challenged and/ or examined in these proceedings are covered and all the learned counsel appearing for the parties could advance their arguments on such formulation. He has submitted the following formulations:- Crl.Org.P.No.89/11 etc. 31 1. Whether the Acts (Act XVII of 2011 and Act XXIV of 2013) legislatively annul the judgment dated 14.4.2011 of the Sindh High Court passed in C.P.No.932 of 2011? 2. Whether any of these statutes is violative of any provisions of the Constitution? 3. Whether any of these statutes can be annulled for being in conflict with the service law and rules operating prior to the said statute? 4. Whether a statute can be struck down on the ground of mala fide of facts? If so. 5. Whether these statutes actually suffer from mala fides of facts? 6. Scope of principle of stare decisis and its application before the Supreme Court? 7. Whether the deputation, absorption, regularization, out of turn promotions, re-employment, contractual/ adhoc employment which are the subject matter of these proceedings can be validated through the impugned statutes? 8. Whether the petitioners having in essence raised their personal grievances through these proceedings can be entertained by this Court under Article 184(3) of the Constitution? 9. Whether the issue of vires of the impugned legislation affect the fundamental rights of the petitioners/civil servants? 39. The learned counsel has advanced his arguments on the issue of absorption only. According to him, the provisions of Article 240(b) do not restrict the provinces from multiple legislation. He contended that Article 142 of the Provincial Legislature grants residuary powers to the Provincial Assemblies whereas Article 242 (1B) and (2) speak of constitution of Public Crl.Org.P.No.89/11 etc. 32 Service Commission, appointment of its Chairman and the functions which the Commission will undertake, as prescribed by the law. According to him, pursuant to this scheme, Sindh Public Service Commission Act, 1989, was promulgated and its Section 7(i) relates to the conduct of test and examination for initial appointments whereas Section 7(ii) provides qualifications and method of recruitment. 40. He further contended that section 5 of the Act of 1973, speaks of appointments prescribed by Section 2(g) of the Act which refers to the Rules called the Sindh Civil Servants (Appointment, promotion and Transfer) Rules, 1974. He submitted that the impugned Act XVII of 2011 as well as impugned Act XXIV of 2013 are parallel statutes to the Act of 1973, having non-obstante clauses, effect of which has been interpreted by this Court in the case of Province of Sindh through Chief Secretary vs. Prosecutor General Sindh (2012 SCMR 307). He contended that introduction of such a non-obstante clause will nullify the effect of Act of 1973, and it can safely be construed that such legislation, in no way, is violative of the fundamental rights guaranteed by the Constitution. 41. Mr. M.M. Aqil Awan learned counsel for the private Respondents namely Dr. Muhammad Ali, Dr. Aftab Mallah, Ghani Jokhio, Ahmed Hussain Solangi, (Respondents in C.P.No.71/2011) has filed his written arguments in terms of order of this Court dated 30.04.2013, which was numbered as C.M.A.No.2697 of 2013. Additionally, he has requested the Court to allow him to make oral submissions, which request was acceded to. He contended that the Respondents, whom he represents, were absorbed by the Sindh Government in exercise of powers under section 24 of the Act Crl.Org.P.No.89/11 etc. 33 of 1973. According to him, Constitution Petition No.71 of 2011 filed by the petitioners, by which the vires of impugned Ordinance III of 2011 dated 04.05.2011 and the impugned Act XVII of 2011 have been challenged, is not maintainable. According to him, through the aforesaid petition seniority, eligibility and promotion of the Respondents have been challenged by the petitioners, which falls within the domain of the Sindh Service Tribunal. According to him, direct petition to this Court would not lie for the redressal of individual grievance of a party. He submitted that the petitioners have challenged the promotion, seniority and eligibility of the Respondents, which fall within the terms and conditions of service, therefore, the petition is not maintainable under Article 184(3) and the petitioners should approach the appropriate forum for redressal of their grievances. 42. His next contention was that there are 30 petitioners in Constitution Petition No.71 of 2011, who belong to the Provincial Secretariat Service. The question raised in the petition by employees of one cadre would not attract the necessary ingredient, which is the condition precedent to invoke the jurisdiction of Article 184(3) of the Constitution, as the employees of one cadre cannot enlarge the meaning of public interest by directly approaching this Court. In support of his contentions, he has relied upon the cases of Syed Zulfiqar Mehadi vs. P.I.A (1998 SCMR 793 (799)). According to him, in order to exercise jurisdiction under Article 184 (3) of the Constitution by this Court, the issues raised in the petition must pertain to infringement of fundamental rights. According to him, the seniority and the promotion are not vested rights of the petitioners to approach this Court in a constitution petition. Crl.Org.P.No.89/11 etc. 34 43. He next contended that malafide cannot be attributed to the legislature nor nullifying a judgment of the Court can be made a ground to strike down the impugned legislative instruments. He submitted that by impugned instruments the absorption of different employees in the Sindh Government has been validated. The petitioners through these proceedings cannot challenge the ‘absorption’ of such employees nor the benefit extended to them can be withdrawn. In support of the contention, he has relied upon the cases of Mazhar Ali vs. Federation of Pakistan (1992 SCMR 435) (440), Province of Punjab vs. Ibrar Younis (2003 PLC (CS) 1357 (1361)), Hussain Badshah vs. Akhter Zaman (2007 CLC 157 (163)), Chairman Minimum Wages Board vs. Fayyaz Hussain (1999 SCMR 104) (106)) and Ghulam Rasool Vs. Secretary, Government of Pakistan Ministry of Defence and others (2011 SCMR 994 (998). 44. Mr. Abrar Hassan, ASC, has filed his written arguments by way of C.M.A.No.2698/2013 on behalf of Respondent No.5 in C.P.No.71 of 2011 and he has submitted that he adopts the arguments of Dr. Farough Naseem, learned ASC, appearing for the Respondents. 45. Mr. M. M. Aqil Awan, learned counsel representing the Respondents in Civil Appeal No.183-K of 2011 has challenged the vires of the impugned legislation. He has filed his written synopsis by way of C.M.A.No.2715/2013 and C.M.A.No.2732/2013. He has requested for oral arguments as well, which request was acceded to. He submitted that he will make his submissions on the issues of deputation, absorption and out of turn promotions. According to him, the Sindh Civil Servants Act does not permit Crl.Org.P.No.89/11 etc. 35 any non-civil servant to be transferred and posted on deputation to any government department in Sindh. According to him, the word ‘deputation’ has neither been defined in the Act of 1973 nor in the rules framed there- under. He contended that the word ‘deputation’ has been borrowed from the Esta Code, which has two parts. The first part deals with the instruments and the other deals with the office memoranda, issued by the Establishment Division from time to time. According to him, entry under Esta Code Edition 2009 Chapter-II at page 425 deals with transfer, posting/deputation. According to him it is only a government servant, who could be transferred on deputation. Such transfer is subject to the process of selection to a post in a department of service, which is altogether different from the one to which he permanently belongs, and the third ingredient for the deputation is that such an officer is entitled to lien as long he holds the new post in an officiating capacity or temporary capacity, but such lien stands terminated either on confirmation in the new post or on reversion to his substantive post. He contended that the definition of ”deputation” as provided by the Esta Code was adopted by this Court in the case of Islamic Republic of Pakistan vs. Israr-ul-Haq (PLD 1982 SC 531 (542). He submitted that this definition was further defined in the case of Muhammad Arshad Sultan vs. Prime Minister of Pakistan (PLD 1996 SC 771 (777-B)), which reads “Deputationist is defined to be a government servant, who is appointed or transferred through the process of selection to a post in a department or service altogether different from the one to which he permanently belongs. He continues to be a deputationist unless confirmed in the new post or reverted to his substantive post”, following the case of Israr-ul-Haq. In the case of Muhammad Ramzan vs. Government of Pakistan (1999 PLC (CS) Crl.Org.P.No.89/11 etc. 36 1149 (1153-A)) the aforesaid definition in the case of Muhammad Arshad Sultan was followed. The learned counsel while referring to the aforesaid judgments of this Court has contended that this Court has held that no non- civil servant can be transferred and appointed by way of deputation, in any government department to any cadre and or non-cadre post. 46. He next contended that the Act of 1973 does not define the word ‘deputationist’. He however, submits that section 2 (1) (b) of the Act of 1973 reads:- “2 (1) (b) “civil servant” means a person who is a member of a civil service of the Province or holds a civil post in connection with the affairs of the Province, but does not include-- (i) a person who is on deputation to the Province from the Federation or any other Province or authority; or According to the learned counsel, the term ‘Authority’ used in clause (a) hereinabove is used as a tool by the Sindh Government to cover up the illegal transfer on deputation of non-civil servants in Sindh Government. According to him the aforesaid sub-section deals with the person, who is on deputation to the Province from the Federation or any other Province or Authority. He submits that the term ‘person’ used in sub clause (b) (i) of section 2 (1) means a civil servant and does not include an employee of an authority. He has relied upon the judgment in the case of Lal Khan vs. Employees Old Age Benefits Institution (2010 PLC (CS) 1377 (1382)). He submits that in the said judgment, the identical issue was raised and the Advocate General Sindh Mr. Abdul Fatah Malik has made the statement in aforesaid case that there is no mechanism provided under the Rules to regulate the services of the deputationists who are non-civil servants. The Crl.Org.P.No.89/11 etc. 37 learned Division Bench after hearing the Advocate General Sindh has held that a non-civil servant cannot be transferred and posted to the Sind Government by way of deputation. 47. He further submitted that to cater the above deficiency, on 4.9.2012 Ordinance No.VI of 2012, impugned in these proceedings, called as Sindh Civil Servants (Amendment) Ordinance, 2012 was promulgated. In the said Ordinance, section 2 (bb) was inserted which defines the word ‘deputation’ means the posting of a person in accordance with sub-section 1 of section 10-A. The Ordinance further introduces section 10-A and its clause (1) reads:- “10-A. (1) Notwithstanding anything contained in this Act, or any other law enforced, or any judgment of any Court, Government (C.M) shall have and shall be deemed to always have had the powers to appoint any person on deputation basis, who is civil servant, as defined in this Act, or the Federal Civil Servant Act, 1973, in the service of Government or Federal Government or autonomous, Semi- autonomous Body Corporation or any organization setup, established, owned, controlled or managed by Government or as the case may, the Federal Government against any post in any cadre, in the Civil Service of the Province or in connection with the affairs of the Province”. The aforesaid Ordinance lapsed after 90 days and was never placed before the Provincial Assembly. He next contended that in the case of Safdar Ali Sahito vs. Province of Sindh (2011 PLC (CS) 972 (976-e-d)), a learned Division Bench of the Sindh High Court while interpreting ‘deputation’ has held as under:- “by posting outsiders on the basis of Deputation in various Departments of provincial Government, the changing Crl.Org.P.No.89/11 etc. 38 cadres and inducting/absorbing them in various departments of provincial governments, created unrest and sense of deprivation amongst employees already working there. Authorities were directed to repatriated them. Government in case of exigencies could appoint any person on OPS basis, as a stopgap arrangement or current charge or acting charge or additional charge basis but cannot continue the OPS or Additional Charge for unlimited period of time.” 48. According to the learned counsel, the impugned Ordinance contained the conditions that powers of the competent authority were subject to the proviso a, b and c of section 4 of the Act of 1973. Proviso ‘a’ speaks of minimum qualifications as may be laid down for a person to be appointed to the post. The learned counsel submits that till date the Sindh Government has not framed rules which could define the proposed minimum qualifications of a deputationist mentioned in the Ordinance. He submitted that if any statute is conditional, it cannot be made operative unless the conditions laid down are fulfilled. According to him, Ordinance VI of 2012 for the aforesaid reason is violative of the Act of 1973 and the rules framed there-under, and does not authorize the competent authority and /or the Chief Minister to order transfer of a non-civil servant in the Sindh Government on deputation. 49. He next contended that the word ‘absorption’ used in the said Ordinance is also a misnomer. Neither the Sindh Civil Servants Act nor the rules framed there-under has given any definition to the term ‘absorption’. Under Ordinance VI of 2012, an amendment was brought in the section 2 sub-section (i) (a) wherein the term ‘Absorption’ was defined which means appointment of a person by way of absorption in accordance with sub- Crl.Org.P.No.89/11 etc. 39 section 2 of section 10-A. He next contended that the Sindh Civil Servants Act provides three modes of appointment, which are given in the Rules of 1974. These are:- 1. Recruitment by initial appointment. 2. Appointment by promotion. 3. Appointment by transfer These appointments are regulated by the Act of 1973. In the case of Iqbal Ahmed vs. Province of Sindh (1996 PLC (CS) 955), a learned Division Bench has defined the word ‘Absorption’, which reads as under:- “Absorption was nothing but appointment by transfer and same could only be made under Rule 9(1) of Sindh Civil Servant (Appointment, Promotion and Transfer) Rules, 1974. 50. He next contended that the issue of absorption was dealt with in a judgment of the learned Division Bench in the case of Deedar Hussain Jakhrani vs. Federation of Pakistan (2011 PLC (CS) 203 R). This Court in the case of Dr. Anwar Ali Sahito vs. Federation of Pakistan (PLD 2002 SC 101 rel. (158-P) has held that “reinstatement and absorption for intents and purposes are synonymous expression”. This view was, however, revisited by this Court in the case of M.D Sui Southern Gas Company Ltd. Karachi vs. Ghulam Abbas (2003 PLC (CS) 796 (833-N)). It was contended that absorption would simply mean appointment by way of transfer. He submitted that appointment by way of transfer have two categories. He submitted that under Rule 9-A of the Rules of 1974, an employee who is rendered surplus on account of abolition of his post or on permanently taking over the administration of the autonomous body by the Government, can be absorbed on transfer to any other department provided that such Crl.Org.P.No.89/11 etc. 40 person possesses such qualifications laid down under the rules of appointment besides the other three conditions referred to therein. He contended that even an employee of an autonomous body can be absorbed under Rule 9-A of the Rules of 1974, if his post is abolished or the autonomous body in which he was serving is taken over by the Sindh Government. In absence of these two pre-conditions, Rule 9-A could not be invoked to absorb an employee of an autonomous body in the Sindh Government. He next contended that absorption in such like matters is to be regulated by regular appointment and in support of his contention has relied on an unreported judgment of this Court in the case of Agha Altaf Nabi vs. Govt. of Sindh in C.P.L.A No.147-K/1999 decided on 22.07.99. 51. He next contended that seniority of a civil servant is granted on his regular appointment in all the three modes of appointment under the Sindh Civil Servants (Probation, Confirmation & Seniority) Rules, 1973. In support of his contention, he has relied on the case of Nazir Ahmed Panwar vs. Government of Sindh (2005 SCMR 1814). He next contended that Rule 9(1) further provided appointment by transfer only to those persons holding appointment on regular basis in the same grade in which post to be filled exists. According to the learned counsel the impugned Ordinance provides exception by introducing the term “Absorption”. Under Rule 9-A of the Rules of 1974, appointment of a person on transfer basis could be made subject to the condition that the civil servant must be holding appointment on regular basis in the same basic scale. Learned counsel submits that this Rule 9-A is to be read with Rule 7(2) and (3) of the Rules 1974, which relates to civil servants. According to him, sub-Rule (3) of Rule 7 provides Crl.Org.P.No.89/11 etc. 41 that unless Provincial Selection Board recommends, appointment by promotion or transfer to a post in Basic Scale 18 cannot be made on regular basis. He in support of his arguments has relied upon the case of Government of Punjab vs Mrs. Kishwer Alam (PLD 1997 SC 578 A & B). While concluding his arguments on the issue of absorption, he submitted that Rule 17 of the Schedule 6 read with Article 5 and 6 of the Rules of Business, 1986, procedure is provided for floating the summary. According to him, the Rules do not permit any official of the Sindh Government to float a Summary of a non-civil servant. 52. Mr. M.M Aqil Awan, learned Sr.ASC, has filed his written synopsis on the issue of ‘out of turn promotions’ and has also made his oral submissions. According to him, the Act of 1973, does not provide any mechanism under the impugned instruments for granting out of turn promotions. He submitted that promotions are of two kinds: one by the government under Section 9 of the Act of 1973 and the other is out of turn promotion which is granted under Section 9-A of the Act of 1973. He submitted that in the year 2002, Section 9-A was introduced by amending the Act of 1973 and was given protection by XVII Amendment under the Constitution. The said amended section 9-A remained on the statute book till it was omitted by an Ordinance on 27.02.2008. According to him, the said Ordinance was not placed before the Provincial Assembly, therefore, in terms of Article 264 of the Constitution, on lapse of the Ordinance, Section 9-A stood revived. He submitted that the effect of the lapse/repeal of the Ordinance has been decided by this Court in the case of Pir Sabir Shah vs. Shah Muhammad Khan (PLD 1995 SC 66 (205-ggg)) and Federation of Pakistan vs. M. Nawaz Khokhar (PLD 2000 SC 26 (45-g)). Crl.Org.P.No.89/11 etc. 42 53. According to him, section 9-A of the Act of 1973 provided that “out of turn promotions” would be granted in such manner as may be prescribed. The word ‘prescribed’ has been defined under section 2 of the Act of 1973. In this background, the Provincial Government framed and added Rule 8-B in the Rules of 1974. The rules were framed in exercise of powers conferred under section 26 of the Act of 1973. The said Rule 8-B amended through Notification dated 10.02.2005 was omitted by a second Notification dated 11.05.2005. Thereafter, the Sindh High Court on 31.03.2009, in its judgment passed in C.P.No.1595/2005 directed the Sindh Government to revive Rule 8-B of the Rules of 1974 and examine the case of each police officer, who was granted out of turn promotion. This judgment of the High Court was never implemented by the Sindh Government and on 04.09.2012 impugned Ordinance No.VI of 2012 was promulgated by which section 9-A sub-section (3) was again amended which reads:- “9-A. Notwithstanding anything contained in this Act or any other Law for the time being in force or any judgment of any court, a civil servant who provenly exhibits the act of gallantry while performing his duties or very exceptional performance, beyond the call of duty, may be granted out of turn promotion or award or reward by Government (CM)”. 54. According to Mr. M.M. Aqil Awan by this impugned Ordinance, the legislature has omitted the term ‘prescribed’ in section 9-A as a result whereof Rule 8-B of the Rules of 1974 stood omitted. According to him, now it is the Chief Minister alone who has the powers to grant out of turn promotions as requirement of the committee under Rule 8-B was done away. He next contended that the term ‘out of turn promotion’ was not Crl.Org.P.No.89/11 etc. 43 defined under the impugned Ordinance nor does it provide any legal cover or validity to the past promotions granted on out of turn basis and remained the subject-matter of litigation in cases mentioned hereinabove. The impugned Ordinance VI of 2012 did not debar the Government of Sindh from complying with the judgment of the Sindh High Court passed in earlier litigation on 31.03.2009. The Government realizing the aforesaid mistakes immediately issued another impugned Ordinance No.VII of 2012 on 05.09.2012 wherein sub-section 2 of section 9-A was introduced, which reads:- “All the out of turn promotions made under Section 9-A before the commencement of this Ordinance, shall be deemed to have been made under this section on regular basis.” The impugned Ordinance VII of 2012, did not have a non-obstante clause as section 9-A was amended by Sindh Ordinance VI of 2012 and previously it was amended by Sindh Ordinance IV of 2002 dated 22.1.2002. The impugned Ordinance VII of 2012 did not mention the date from which, out of turn promotions made to different police officers or civil servants would be treated on regular basis under its deeming clause. However, both these impugned Ordinances lapsed in terms of Article 128 of the Constitution. After the lapse of the impugned Ordinances, Act No.1 of 2013 was promulgated under which after Section 23, new sub-section 23-A was inserted by way of amendment with three sub-clauses, which reads:- 23-A. Regularization of out of turn promotions. (1) Notwithstanding anything contained in any law, or order or judgment of any Court, all out of turn promotions made immediately before the commencement of the Sindh Civil Servants (Amendment) Act, 2013, under section 9-A by Government or competent authority or otherwise by the Crl.Org.P.No.89/11 etc. 44 police department shall stand regularized from the dates of such promotions. *(2) All promotions regularized under sub-section (1) above and all notifications, proceedings, instructions or orders issued in pursuance of such promotions are hereby affirmed and shall be deemed always to have been validly made. (3) A person aggrieved by any promotion regularized under sub-section (1) may file an appeal in the Sindh Service Tribunal, within thirty days of the commencement of the Sindh Civil Servants (Amendment) Act, 2013”. Act 1 of 2013 only regularized out of turn promotion in the police department. Realizing this mistake, another Act XXIV of 2013 was promulgated on 15.03.2013, wherein after section 23(A), by way of amendment, another section 23(B) consisting of three sub-sections was inserted, which reads:- “23-B (1) Notwithstanding anything contained in this Act or rules made there-under, or in any decree, order or judgment of a Court, an employee absorbed, or as the case may be, promoted under section 9-A as a civil servant against a post in connection with the affairs of the Province and holding such post immediately before the date of commencement of the Sindh Civil Servants (Second Amendment) Act, 2013, shall be deemed to have been validly absorbed, or as the case may be, promoted to that post on regular basis with effect from the date of his absorption, as the case may be, promotion.” (2) A person aggrieved by any absorption, or as the case may be, promotion regularized under sub-section 91) may file any appeal in the Sindh Service Tribunal, within thirty days of the commencement of the Sindh Civil Servants (Second Amendment) Act, 2013”. 55. Mr. M.M. Aqil Awan submitted that the difference between the two impugned Acts is that the former speaks of only out of turn promotions Crl.Org.P.No.89/11 etc. 45 in the police department whereas the later impugned Act validates not only absorption of the employees but also out of turn promotions under section 9- A of the Act of 1973 from the date of their absorption or promotion. 56. Mr. Yawar Farooqi, learned ASC, representing Agha Masood Abbas, has filed his written synopsis by way of C.M.A.No.2695 of 2013, and has also made oral submissions. He contended that by the impugned Act XVII of 2011, 1085 employees were absorbed and is not person specific. According to him, the impugned Act was promulgated to validate the absorptions of the employees made from time to time since 1994. He further submitted that impugned Ordinance VI of 2012 has amended section 10-A of the Act of 1973, which empowers the Chief Minister to absorb permanently any employee in the Sindh Government. He contended that absorption is a legal concept and all provinces in the country appoint the employees by absorption. He submitted that the impugned Act of 2013 regularized the absorptions made in the Sindh Government, which was within the competence of Assembly. 57. He next submitted that the concept of deputation is a legal one. According to him, the Sindh Government while ordering transfer by deputation is only required to establish that exigency existed. In this regard, he has relied upon the case of Fauji Foundation & another vs. Shamimur Rehman (PLD 1983 SC 457) and Mehr Zulfiqar Ali Babu vs. Government of the Punjab (PLD 1997 SC 11). He submitted that in the case of Elahi Cotton Mills, this Court has held that the Parliament can nullify the effect of a judgment of the Court in exercise of its legislative powers. He submitted that Crl.Org.P.No.89/11 etc. 46 his client was validly absorbed and conceded that there may be cases where few of the employees were wrongly absorbed, but that would not empower this Court to strike down the impugned legislative instruments. 58. He further contended that Article 240 of the Constitution is not directly hit by the impugned instruments and has referred to Articles 14 and 16 of the Indian Constitution under which the rights of the Civil servants were independently guaranteed whereas according to him under our Constitution, civil servants have not been provided such protection. He submitted that the issues arising out of the impugned legislation be remanded to a Committee to examine the cases of out of turn promotion under Rule 8-B or to the Provincial Assembly to review the law. 59. Mr. Anwar Mansoor Khan representing Respondent Sheraz Asghar Sheikh has contended that the appointment of his client was validated under the impugned Act XVII of 2011 and Act XXIV of 2013. According to him the impugned legislative instruments are valid piece of legislation and fall within the competence of the legislature. He submitted that the impugned instruments were promulgated to remove the deficiencies and illegalities committed by the Sindh Government. According to him, this Court in the case of Fauji Foundation vs Shamimur Rehman (PLD 1983 SC 457) has held that mala fide cannot be attributed to the legislature. He submitted that in order to strike down the legislative instruments, it is necessary that the Court has to be satisfied that it impinges upon fundamental rights of the citizens under Articles 8 and /or under Article 240 of the Constitution. According to him, the issue raised in these proceedings Crl.Org.P.No.89/11 etc. 47 is confined to individual grievance which could be redressed by approaching the appropriate forum. 60. He next contended that the definition of deputation provided under the Act of 1973 includes the person employed in an Authority, who can be transferred and posted in the Sindh Government. He has relied upon the case of C.Munni Appa Nido vs. State of Karnataka (1976 (4) SCC 543 (797)), which deals with the absorption while the case of (2002 (9) SCC 485) deals with the deputation. Mr. Anwar Mansoor Khan has already filed his written arguments by way of C.M.A.No.2696 of 2013, which he adopts. He, however, in his oral arguments contends that the principles of statutory and Constitutional interpretation have been propounded by this Court in the case of Chief Justice of Pakistan Iftikhar Muhammad Chaudhry vs. President of Pakistan through Secretary and others (PLD 2010 SC 61). He further contended that the Constitution must be read as an organic instrument and is to be interpreted in the light of changes in society. In support of his contention he has relied upon the cases of Munir Hussain Bhatti Advocate and others vs. Federation of Pakistan and another (PLD 2011 SC 407), Qazi Hussain Ahmed, Ameer Jamaat-e-Islami Pakistan and others vs. General Pervez Musharraf Chief Executive and others (PLD 2002 SC 853), Mst. Attiyya Bibi Khan and others vs. Federation of Pakistan and others (2001 SCMR 1161) and Dr. M.Aslam Khaki vs. Syed Muhammad Hashim and 2 others (PLD 2000 SC 225). 61. He next contended that Constitution is a living document to be interpreted in the widest manner and judicial approach has to be dynamic, progressive and liberal. In support of his contention, he has relied upon the Crl.Org.P.No.89/11 etc. 48 cases of Pakistan Tobacco Company Ltd. & others Vs Government of N.W.F.P through Secretary Law and others (PLD 2002 SC 460), Messrs Elahi Cotton Mills Ltd. & others Vs. Federation of Pakistan through Secretary M/o Finance, Islamabad and 6 others (1997 PTD 1555), Al-Jehad Trust Vs. Federation of Pakistan and others (PLD 1996 SC 324), Pir Sabir Shah Vs. Shad Muhammad Khan Member Provincial Assembly NWFP and another (PLD 1995 SC 66), Pakistan Industrial Development Corporation vs. Pakistan (1992 SCMR 891). As regards the Articles relating to fundamental rights he submitted that they be construed liberally to provide maximum possible relief and has relied upon the cases of Pakistan Tobacco Company Ltd. and another vs. Federation of Pakistan and others (1999 SCMR 382), Mohtarma Benazir Bhutto and another Vs. President of Pakistan and others (PLD 1998 SC 388), Wukala Mahaz Barai Tahafaz Dastoor and another Vs. Federation of Pakistan and others (PLD 1998 SC 1263), Mushtaq Ahmed Mohal and others vs. The Honourable Lahore High Court Lahore and others (1997 SCMR 1043) and Mian Muhammad Nawaz Sharif Vs. President of Pakistan and others (PLD 1993 SC 473). 62. The next contention of Mr. Anwar Mansoor Khan is that in case of conflict between two provisions, the Courts have to harmonize conflicting provisions and declare which one is to be preferred if conflict cannot be resolved. Provision conferring lesser rights must yield in favour of provision conferring higher rights and in support of his such contentions he has relied upon the cases reported as Accountant General Sindh and others Vs. Ahmed Ali U. Qureshi and others (PLD 2008 SC 522), Wukala Mahaz Barai Tahafaz Dastoor and another vs. Federation of Pakistan and others (PLD Crl.Org.P.No.89/11 etc. 49 1998 SC 1263), Shahid Nabi Malik and another vs. Chief Election Commissioner, Islamabad and 7 others (PLD 1997 SC 32), Mahmood Khan Achakzai and others vs. Federation of Pakistan and others (PLD 1997 SC 426), Al-Jehad Trust and others vs. Federation of Pakistan and others (PLD 1996 SC 324) and Pir Sabir Shah vs. Shad Muhammad Khan Member Provincial Assembly NWFP and another (PLD 1995 SC 66), however, in the cases of Wukala Mahaz Barai Tahafaz Dastoor and another vs. Federation of Pakistan and others (PLD 1998 SC 1263) and Al-Jehad Trust and others vs. Federation of Pakistan and others (PLD 1996 SC 324), it is held that conflict between two provisions/constructions corresponding closely to and giving effect to dominant intent will be preferred to ensure harmonious working. 63. He next contended that Courts can make use of the legislative history for the purpose of construction, interpreting provisions in light of circumstances that produced them. In support of his contention he has relied upon the cases of Messrs Gadoon Textile Mills and 814 others vs. WAPDA and others (1997 SCMR 641) and Miss Benazir Bhutto Vs. Federation of Pakistan and another (PLD 1988 SC 416). 64. Mr. Anwar Mansoor Khan submitted that powers of legislature have been propounded by this Court in various judgments and has relied upon the following judgments:- i. Fauji Foundation vs. Shamimur Rehman (PLD 1983 SC 457). ii. Independent Newspaper Corporation Vs. Chairman Fourth Wage Board (1993 SCMR 1533). Crl.Org.P.No.89/11 etc. 50 iii. Executive District Officer (Revenue) Vs. Ijaz Hussain (2012 PLC (C.S) 917). iv. Lila Dhar Vs. State of Rajasthan & others (AIR 1981 SC 1777). v. Dr. Mobashir Hassan and others Vs. Federation of Pakistan (PLD 2010 SC 265). vi. Elahi Cotton Mills Ltd. & others Vs. Federation of Pakistan and others (PLD 1997 SC 582). vii. Mahmood Khan Achakzai & others Vs. Federation of Pakistan and others (PLD 1997 SC 426). viii. The Punjab Province Vs. Malik Khizar Hayat Khan Tiwana (PLD 1956 FC 200). ix. Haider Automobile Ltd. Vs. Pakistan (PLD 1969 SC 623). x. Mehr Zulfiqar Ali Babu and others Vs. Government of Punjab and others (PLD 1997 SC 11). xi. The State Vs. Zia-ur-Rehman and others (PLD 1973 SC 49). xii. Mamukanjan Cotton Factory Vs. The Punjab Province and others (PLD 1975 SC 50). 65. Mr. Mehmood Ahmed Sheikh, learned AOR, representing the respondent No.6 has adopted the arguments of Dr. Farogh Naseem. Mr. Abul Hassan learned ASC, representing respondent No.8 has adopted the arguments of Mr. M.M. Aqil Awan. 66. Mehmood Akhter Naqvi, Applicant in person in C.M.As.No.278-K of 2013, 86-K of 2013, 255-K of 2013 and 275-K of 2013, has submitted that the impugned instruments have been introduced to give favours to the blue-eyed of the politicians. He submitted that this Court Crl.Org.P.No.89/11 etc. 51 in the case of Muhammad Nadeem Arif vs. Inspector General of Police, Punjab, Lahore (2010 PLC (CS) 924 Relevant (934)), has held that out of turn promotion is violative of Article 9 of the Constitution and has also declared it as un-Islamic. According to him, after the judgment of this Court, holding out of turn promotions violative of Article 9 and 2-A of the Constitution, the Provincial Assembly cannot legislate a law empowering Chief Minister to grant out of turn promotions. He submitted that the Chief Minister Sindh, on the strength of the impugned legislation, has absorbed employees (non-civil servants). According to him, the manner in which the blue-eyed employees were extended favours through these impugned instruments is unprecedented which has direct bearing on the valuable rights of the civil servants of the Sindh Government which run in hundreds of thousands. According to him, the impugned instruments should be declared void and ultra vires of the Constitution. 67. Inspector Sarwar Khan has filed C.M.A.No.245 of 2013 and Inspector Baharuddin Babar has filed C.M.A.No.247 of 2013, in which they state that seven DSPs were appointed directly by the Chief Minister without following the procedure provided in the recruitment rules in the recent past. According to them, one Waseem Khawaja, who has been appointed DSP, was ordered to be repatriated to Excise Department by this Court and after his repatriation, under the garb of the impugned legislation, Waseem Khawaja was directly appointed as DSP. He further submitted that the two persons namely Rizwan Soomro and Riaz Soomro, brothers of the then Law Minister of Sindh, were initially brought on deputation in Sindh Police and appointed and absorbed as D.S.Ps in police, whereafter they were given Crl.Org.P.No.89/11 etc. 52 backdated seniority of the previous departments and were also granted out of turn promotions under the impugned legislation. Like-wise many other persons/employees who were closely related and /or friends of the Members of Sindh Provincial Assembly were extended favours by transferring them on deputation and absorbing them in the Sindh Government with accelerated promotions with backdated seniority in colourable exercise of powers conferred under the impugned legislation. 68. During the hearing of the matter, Constitution Petition No.21 of 2013 was filed by Choudhry Afrasayab in which vires of all the impugned legislations were challenged. We had issued notice to the Advocate General for today. Ch. Afrasiab Khan, learned ASC, while adopting the arguments of Mr. M.M. Aqil Awan has submitted that in the case of Elahi Cotton Mills, this Court has declined to strike down the legislative instrument observing at pages 655- 679 that the issue involved has direct bearing on the economy of the country and, therefore, the legislative instruments were not being interfered with. He submitted that the case in hand stands on different footing and the principle laid down in the said case would not be extended to cover the present proceedings. He submitted that all the instruments challenged in these proceedings are liable to be struck down being violative of Articles 4, 8, 9, 25, 240 and 242 of the Constitution. 69. On the other hand, Mr. Sarwar Khan, learned Additional Advocate General submits that the Advocate General Sindh has already filed written synopsis by way of C.M.A.No.280/2013 and has adopted his earlier arguments made in addition to the written synopsis. Crl.Org.P.No.89/11 etc. 53 70. Additionally there are number of applications sent by the different civil servants/police officers, challenging the actions of the Executive/Government claiming that they were directly affected by impugned instruments. Maqsood Ahmed D.S.P in his CMA No.42-K of 2012 states that he is in the police service since 1973 and was promoted as Sub Inspector on 01.04.1980 and Inspector on 25.03.1990 and DSP in March 1998. He in his application claims that his juniors were promoted to the Rank of SSP on account of out of turn promotions. He claims that under Rule 8-B out of turn promotion can only be given one time in the entire service, but many police officers were granted four times out of turn promotions in violation of the Rule 8-B. Even otherwise, accelerated promotion negates Articles 4, 9, 18 and 25 of the Constitution which guarantee equal protection to every citizen. He further claims that many employees who came on deputation, in deviation of the law were absorbed in Police Department and granted out of turn promotions with backdated seniority. According to him this act of the Government has affected the working of the police. He has further stated in his application that out of turn promotions in public Department generates frustration amongst the ranks of the police. Along with his application, he has annexed different orders of the Sindh Government by which the out of turn promotions were granted to different police officers/civil servants. We have had the occasion to see the copy of one of the Summary, which he has filed along with the application. It mentions a request from one Dost Ali Baloch for grant of Selection Grade promotion from BS-18 to BS-19 in Sindh Police. In order to show the working of the Sindh Government, we were provided copy of summary of Dosti Ali Baloach which is placed/pasted here-under:- Crl.Org.P.No.89/11 etc. 54 71. The applicant has also mentioned 15 police officers, who were absorbed in police service from different autonomous bodies/organizations and Departments challenging their absorption/appointments, inter alia, on the ground that they were absorbed in the Sindh Government for political considerations and are now holding key positions in Sindh Police after Crl.Org.P.No.89/11 etc. 55 getting out of turn promotions and backdated seniority. Amongst the officers, he mentioned the name of Dost Ali Baloch, who was from the Intelligence Bureau and came on deputation in 1994, permanently absorbed in Sindh Police in 1998 and was given backdated seniority and presently he is in Grade-20. The Sindh Government in its comments has stated that in 1994, Dost Ali Baloach was transferred on deputation in Sindh Police. In the year 1995 he was promoted as Deputy Director (BS-18). He was absorbed in Sindh Police as SP on 14.10.1998. He was allowed backdated seniority w.e.f. 26.09.1995. In the year 2011, he was unprecedently promoted to BS- 20 by the Sindh Government after his encadrement in Police Service of Pakistan in the Federal Government. He was appointed as Consultant or Director (Finance) and posted in the rank of DIGP. The Sindh Government has wilfully concealed in their comments, the out of turn promotion of Dost Ali Baloach from BS-18 to BS-19. What really has disturbed us is that in order to promote an officer from B.S-19 to B.S-20, the law requires the officer to serve in the department for a certain term but in his case, this restriction has been done away. Additionally after B.S-19, Dost Ali Baloach could only have been promoted to B.S-20 by a Board constituted by the Federal Government and the Sindh Government had no business to promote him. We, however, refrain from commenting upon the working of Sindh Government. There may be many more cases of such like favours. 72. The applicant Maqsood Ahmed has further placed before us the material pertaining to service record of Mohammad Malik, Director in the FIA, who was deputed in Sindh Government in 2007 and promoted as SSP. According to him, Mohammad Malik was absorbed in Sindh Government in Crl.Org.P.No.89/11 etc. 56 BS-19 and was given backdated seniority w.e.f 11.09.2006 and thereafter was promoted to BS-20 along with Dost Ali Baloch on 28.09.2011. In his case, the Sindh Government in its para-wise comments has stated that this officer was transferred on deputation in 2007. He was absorbed as SSP (BS- 19) on 31.10.2007. He was assigned seniority w.e.f 11.09.2006 and was promoted as Director General (BS-20). At present he is working as DIGP w.e.f 01.10.2011. His case is identical to the one which we have already taken note of in the earlier para. The Government of Sindh in their comments has not stated a single word as to whether both of these officers after their absorption in Sindh Police were sent for police training as provided under recruitment rules. We believe that without such training in Police Academy, a police officer cannot put on uniform. 73. The applicant D.S.P Maqsood further mentioned in his application that Mohammad Riaz Soomro, who came on deputation from ANF and in February 2008 was absorbed and appointed in BS-17 as DSP. Thereafter he was assigned backdated seniority in the rank of D.S.P w.e.f 24.08.1989 and was promoted as S.P and is serving in O.P.S as SSP Mirpurkhas. The Sindh Government in their comments has stated that the officer was permanently absorbed on 26.02.2008 and his seniority was fixed under the orders dated 20.05.2008 of the Sindh High Court passed in C.P.No.D-456/2008 w.e.f 24.08.1989. On 23.07.2008 Riaz Soomro, on the recommendations of Departmental Selection Board was promoted as SP in BS-18. On 23.11.2010 he was promoted to BS-19 against future vacancy. The comments of Sindh Government reflect how favours were extended to him. The comments do not show that the Sindh High Court decided his case Crl.Org.P.No.89/11 etc. 57 on merits nor it mention that the out of turn promotion was granted to him on recommendations of the Committee notified under Rule 8-B. 74. Mohammad Rizwan Soomro, the other brother of former Law Minister Sindh, was on deputation, absorbed with backdated seniority and then granted out of turn promotion. The High Court did not pass orders on merits nor his case of promotion was recommended by the Committee under Rule 8-B. 75. The applicant mentions the case of Mohammad Ali Baloch, brother of Dost Ali Baloch, who was an Assistant Director Computer in the I.T. Department. His services were regularized in regular police and he was appointed as DSP by way of transfer with all backdated service benefits since 2003. In 2007 he was promoted to the rank of S.P (BS-18) against future vacancy and is presently serving as S.P Tando Mohammad Khan. The Sindh Government while justifying his out of turn promotion, has stated in its comments that while posted as Taluka Police officer, Tando Jam, District Hyderabad he displayed matchless gallantry act in busting the network of hardcore terrorists. He conducted raids and arrested five members belonging to the gang of Sindh Liberation Army. 76. Abdul Hadi Bullo an officer of OMG was transferred on deputation in Sindh police in 2003 and was absorbed in Police Department with backdated seniority in BS-18 and was encadred in PSP in 2011. In his case Sindh Government has mentioned that on the recommendations of the Prime Minister of Pakistan, he was transfer and appointed in Police Department on Shaheed Quota against the Shahadat of his brother Abdul Crl.Org.P.No.89/11 etc. 58 Aziz Bullo PSP/DIGP on 23.6.2003. Thereafter on 19.12.2007, he was assigned backdated seniority in BS-18 w.e.f. 23.02.1998. He was encadred in police service of Pakistan on 25.10.2011 and is presently posted as SSP/Principal PTC Shahdadpur. 77. Shahid Hussain Mahessar, who came on deputation from I.B in 2009. In 2011 though he was repatriated under the orders of the Court to I.B. In his case the Sindh Government has furnished comments stating therein that in the year 2009 his services were placed at the disposal of Sindh Government and he was posted as ADIGP/Special Branch Sindh, Karachi. He was recommended for absorption by Addl. AIG/ Special Branch Sindh. In the year 2011 vide Notification dated 04.01.2011 his deputation was cancelled/withdrawn. He filed a Constitutional Petition in the High Court of Sindh and obtained status quo order. Thereafter the said officer was appointed and transferred as SP (BS-18) in Sindh Police on 11.10.2011. There is no mention as to how he was granted BS-18. 78. Zameer Ahmed Abbasi Assistant Director NAB came on deputation in police Department in 2008. He was sent on training and after completion of training he was posted as SPO/Darakshan Clifton, Karachi in 2010. In his case Sindh Government has stated that his services were placed at the disposal of Sindh Police on deputation in the year 2008. After training he was assigned regular posting as DSP in Sindh Police. In the year 2010 his deputation was cancelled/withdrawn. He filed Constitutional Petition in Sindh High Court and in the said petition his order of repatriation was suspended. Recently Sindh High Court has ordered to issue a formal Notification of his absorption extending him benefit of the impugned Crl.Org.P.No.89/11 etc. 59 legislation. Vide letter dated 21.11.2011, his matter is referred to the Secretary Services Government of Sindh for filing leave to appeal against the judgment of the Sindh High Court. The issue of his absorption was not decided on merits by the High Court, nor order of this Court for his repatriation to the parent department was challenged. 79. Shiraz Asghar Shaikh came from PEMRA in Sindh Police on deputation in the year 2008 on the desire of Chief Minister Sindh. He was appointed as DSP. However, in the year 2011 he was recommended for absorption in police Department. In his case, the Sindh Government in its comments has stated that at the desire of Chief Minister his services were placed at the disposal of Sindh Government in 2008 for a period of three years. Thereafter he was posted in Sindh Police. His case was placed before a Committee for absorption in Sindh Police. His Notification of absorption was cancelled/withdrawn. However, he filed Constitutional petition before Sindh High Court wherein his order of repatriation was suspended and he was allowed to continue in Sindh Police till further orders. The Sindh High Court ordered for issuance of his formal Notification of absorption. The Home Department has absorbed him on 11.06.2012 in pursuance of the Court’s order extending him the benefit of the impugned legislation without examining the effect of orders of this Court for his repatriation to the parent department. 80. One Mohammad Yaqub Almani filed an application wherein he has stated that initially he was appointed as DSP in 1991 in Sindh Police. In 1997 he was promoted as S.P. He further submitted that on 02.05.2012 this Court ordered for repatriation of all the deputationists to their parent Crl.Org.P.No.89/11 etc. 60 departments. The Sindh Government, however, was allowed to retain eight officers on deputation till the completion of projects, on which the deputationists were working. The Sindh Government from time to time extended the period of deputation of some of the officers. The Sindh Government sought services of Abdul Wahab Shaikh Director Intelligence Bureau (BS-19) and posted him in Sindh Police on deputation. He therefore, prayed for repatriation of Abdul Wahab Shaikh to his parent department. 81. One Syed Mehboob Ali Shah Deputy Director (MI&E) Criminal Prosecution has also filed an application under Order XXXIII Rule 6 of the Supreme Court Rules 1980, wherein it is mentioned that 150 prosecutors were posted by judgment dated 01.04.2009 of the High Court and leave sought by Province of Sindh was refused. However, it is stated that high ups in Law Department were not providing facilities to them and instead creating hindrances in their work. He pleaded that on 02.05.2012 in the instant matter this Court ordered for repatriation of the deputationist but the high-ups in the Law Department did not comply with the orders which amounts to contempt of the authority of this Court. It is further pleaded that Prosecution/Law Department is being run by deputationists, employees on detailment and non-cadre officers, who do not have matching qualifications. It is further claimed that postings of Mr. Ahmed Nawaz Jagirani Special Secretary (BS-20) and Dr. Sarwat Faheem Director Monitoring, Implementation and Evaluation (BS-19) in Criminal Prosecution Service is in defiance of the order dated 03.09.2012 passed by this Court. It is further pleaded that Dr. Sarwat Faheem Director Monitoring, Implementation and Evaluation is still holding the post and was relieved only on papers. It is Crl.Org.P.No.89/11 etc. 61 further alleged that extension of Prosecutor General Sindh Criminal Prosecution Service for further three years is also against the judgment of this Court passed on 10.03.2011 in the case of Shahid Orakzai and Ch. Nisar Ali Khan. Lastly he prayed for impleading him as party to the present proceedings. We have noticed that in the lists mentioning the names of the ‘deputationists’ provided by the Secretary Services, did not contain name of any deputationist from the Law Department or Prosecution Branch for which Secretary Law and Secretary Prosecution (Wing) are responsible who wilfully have withheld list of the deputationists working in their Departments with the object to extend favour to them. 82. One Azhar Aslam, who was Instructor in BS-16 Vocational Training Center, Latifabad, Hyderabad, STEVTA Sindh was transferred and his services were placed at the disposal of Enquiries and Anti Corruption Establishment, SGA&CD, Government of Sindh on deputation basis for a period of two years on 18.12.2012. The order is reproduced herein-under:- Crl.Org.P.No.89/11 etc. 62 83. One Shiraz Ahmed Zaidi, Assistant Director (BS-17) Lyari Development Authority, was transferred and his services were placed at the disposal of Chairman, Enquiries & Anti-Corruption Establishment Sindh, on deputation basis on 15.11.2012. The order is reproduced herein under:- 84. One Fakhruddin Ahmed Babar Abro brother of former MPA, who was initially in the Board of Education was absorbed and appointed as Deputy Director Anti Corruption on 26.11.2012. The Notification is reproduced herein under:- Crl.Org.P.No.89/11 etc. 63 85. An application of Attaullah son of Khuda Bux Phulpoto, brother of Saifullah Phulpoto of Khairpur addressed to the Chief Minister Sindh with a request for absorption/appointment of his brother by transfer as Inspector Anti-Corruption Establishment Sindh of Saifuallah Phulpoto, is reproduced herein below:- Crl.Org.P.No.89/11 etc. 64 Crl.Org.P.No.89/11 etc. 65 The Chief Minister marked the aforesaid application to the C.S with a note to examine and put up. Crl.Org.P.No.89/11 etc. 66 86. Saifullah Phulpoto pursuant to the application of his brother was appointed and transferred as Inspector in Anti-Corruption Establishment Sindh on 04th July 2012. For appointment as Inspector in ACE, a candidate must have a Masters Degree in IInd Division, a Law Degree and 2 years experience under the rules. The Chief Minister Sindh overlooked the mandatory qualifications and appointed him as Inspector by issuing following Notification:- 87. Mr. Saifullah Phulpoto was again promoted as an Assistant Director in Anti-Corruption Establishment on 20.09.2012 bypassing the mandatory requirement of 5 years experience for promotion from Inspector Crl.Org.P.No.89/11 etc. 67 to Assistant Director. The Notification of 20th September 2012 issued by the Sindh Government is reproduced herein below:- Crl.Org.P.No.89/11 etc. 68 88. Saifullah Phulpoto was again promoted as Deputy Director Anti-Corruption on 19.03.2013 without completion of five years in B.S-17. The Notification of 19th March 2013 is reproduced herein below:- Crl.Org.P.No.89/11 etc. 69 89. One Nisar Ahmed Brohi was initially appointed as an ASI. He came on deputation in Anti-Corruption police and was granted out of turn promotion as DSP in 2011. He was absorbed in Anti-Corruption Establishment on 13.12.2011 and on 22.10.2012 he was appointed as S.P/Deputy Director. Nisar Brohi became S.P within one year after his absorption as Inspector. The relevant Notification of 22nd October 2012 is reproduced herein under:- Crl.Org.P.No.89/11 etc. 70 90. One Dhani Bux was Motor Vehicle Inspector. He came on deputation to Anti Corruption Establishment in 2008 and was absorbed. On 27.04.2012 he was promoted as DSP and presently he is working as PSO. His case is processed for appointment as S.P in Anti-Corruption. Notification of 27th March 2008 is reproduced herein under:- Crl.Org.P.No.89/11 etc. 71 91. One Kamran Ali Baloch Inspector in BS-16 in Police was inducted in Anti-Corruption Establishment and absorbed therein. The order dated 8th October 2012 is reproduced herein under:- Crl.Org.P.No.89/11 etc. 72 92. One Ghulam Muhammad Zardari was granted out of turn promotion on 07.12.2012 as DSP and his file has also been processed for promotion as S.P. The Notification dated 7th December 2012 is reproduced herein below:- Crl.Org.P.No.89/11 etc. 73 93. One Mohammad Ali Shah an officer of Ex-PCS (BS-17) Assistant Commissioner (Revenue) came on deputation on 3rd December 2012 in Anti Corruption Establishment and presently he is working as DSP in Anti Corruption Establishment. Notification dated 3rd December 2012 is reproduced herein under:- Crl.Org.P.No.89/11 etc. 74 94. One Ali Muzaffar Baloch, who was ASI, was granted out of turn promotion and was promoted as DSP. He came on deputation on 17.08.2012 in the Anti Corruption Establishment and was absorbed. On 27th November 2012 he was promoted as Deputy Director/S.P. Notification dated 27th November 2012 is reproduced herein under:- Crl.Org.P.No.89/11 etc. 75 95. One Zahid Hussain Shah Bukhari Inspector was appointed by way of transfer as Inspector in the Anti-Corruption Establishment by the Chairman on 15th November 2012. Notification dated 15th November 2012 is reproduced herein under:- Crl.Org.P.No.89/11 etc. 76 96. One Munir Ahmed Phulpoto DSP was granted out of turn promotion to the rank of S.P on regular basis by the Chief Minister Sindh vide Notification dated 13th March 2013. The Notification of 13th March 2013 is reproduced herein under:- Crl.Org.P.No.89/11 etc. 77 97. One Ghulam Shabir Talpur DSP was granted out of turn promotion to the rank of S.P on 13.03.2013. The Notification of 13.03.2013 is reproduced herein under:- Crl.Org.P.No.89/11 etc. 78 98. One Mohammad Muzaffar Iqbal DSP was granted out of turn promotion to the rank of SP on 12th March 2013. Notification dated 12.03.2013 is reproduced herein below:- Crl.Org.P.No.89/11 etc. 79 99. The Services of Syed Ali Asghar Shah as SP were regularized w.e.f 25.01.2011 vide Notification dated 08.10.2012. The Notification dated 08.10.2012 is reproduced as under:- Crl.Org.P.No.89/11 etc. 80 100. Inspectors Imran Ahmed Siddiqui and Aijaz Hussain were granted out of turn promotions on the ground that “they were performing their duties as Pilots with the VIPs as well as VVIPs for the last 15/20 years. They have rendered meritorious services with high sense of responsibility and dedications” and they were recommended for out of turn promotion as under:- Crl.Org.P.No.89/11 etc. 81 101. The Promotion Committee was formed which endorsed the recommendations made by the S.S.P (Traffic) and both were promoted to the post of DSP in Police. 102. Another application was received by this office on the subject of illegal appointments in the S&GAD. In the application it was alleged that in violation of the orders of this Court, the Chief Minister Sindh and Additional Secretary Services namely Suhail Ahmed Qureshi had appointed the following persons as Assistant Commissioners in violation of the Rules. 103. Muhammad Hassan was appointed on 14th March 2013. He was Sub-Registrar in Board of Revenue in BS-11 and was appointed as Assistant Commissioner in (BS-17) Ex-PCS cadre without undertaking competitive exams and the training prescribed for such appointment. Notification of his appointment is reproduced herein under:- Crl.Org.P.No.89/11 etc. 82 104. Affan Aftab was appointed as Assistant Commissioner in BS- 17 in Ex-PCS Cadre and his services were placed at the disposal of Commissioner Hyderabad Division, Hyderabad for further attachment with Deputy Commissioner Shaheed Benazirabad for the field training till further orders vide Notification dated 6th March 2013. Notification dated 6.03.2013 is reproduced herein under:- 105. Aamir Khan Jamali was appointed as Assistant Commissioner in BS-17 in Ex-PCS Cadre and his services were placed at the disposal of Crl.Org.P.No.89/11 etc. 83 Commissioner Hyderabad Division, Hyderabad. He was attached with the Deputy Commissioner Hyderabad for the field training till further orders vide Notification dated 21st March 2013. Notification dated 21.03.2013 is reproduced herein under:- 106. Mir Najeeb-ur-Rehman Jakhrani was appointed as Assistant Commissioner in BS-17 in Ex-PCS Cadre and his services were placed at Crl.Org.P.No.89/11 etc. 84 the disposal of Commissioner Hyderabad Division, Hyderabad for further attachment with Deputy Commissioner Thatta for the field training till further orders vide Notification dated 3rd April 2013. Notification dated 03.04.2013 is reproduced herein under:- 107. We have been informed that Chief Minister in excess of the quota under the rules nominated the following persons as Assistant Commissioner. According to the information provided to us there are 265 Crl.Org.P.No.89/11 etc. 85 sanctioned posts of Assistant Commissioners (BS-17) in Ex-PCS Cadre. 25% (66 posts) are reserved for posting of PAC (former DMG) Officers, leaving behind 75% (199 posts) which are to be filled by:- i. Initial appointment 50% (99 posts). ii. By promotion from amongst Mukhtiarkars 43.75% (88 posts). iii. By nomination 6.25% (12 posts)  Following officers have been working in excess of prescribed quota of appointment by transfer/nomination:- S.No. Name of officer Date of appointment 01. Mr.Abu Bakar Mangrio 19.02.2007 02. Syed Altaf Ali 23.11.2007 03. Mr. Nazar Hussain Shahani 19.07.2011 04. Mr. Yar Muhammad Bozdar 30.09.2011 05. Mr. Sajjad Hussain Mehar 13.11.2012 06. Mr. Danish Khan 07.12.2012 07. Mr. Nadeem-ul-Haq 07.12.2012 08. Syed Umaid Ali 18.01.2013 09. Mr. Affan Aftab 18.01.2013 10. Mr. Ammaduddin Qayyum Chachar 13.03.2013 11. Syed Mohammad Omer 13.03.2013 12. Mr. Mohammad Hassan 14.03.2013 13. Mr. Imran Ahmed Shaikh 14.03.2013 14. Mir Najeeb ur Rehman Jakhrani 18.03.2013 15. Mr. Aamir Khan Jamali 20.03.2013 108. According to Rule 5(4)(b) of the West Pakistan Civil Service (Executive Branch) Rules, 1964, 12½ percent posts of such vacancies shall be filled from amongst persons, who hold posts of Assistants, Superintendents working in Secretariat attached departments, Private Secretaries, Public Relations Officers to the Governor, Chief Minister and Ministers and Chief Secretary having done their Graduation, will be considered fit for appointment by transfer to the post of Assistant Crl.Org.P.No.89/11 etc. 86 Commissioner (BS-17) in Ex-PCS Cadre by way of nomination. Selection List “B” and “C” is maintained in accordance with clause (b) quota and clause (c) of Sub Rule (5) of this Rule. 109. Against the share/quota of 12 posts, the Chief Minister has nominated by transfer 15 persons, after exhausting the prescribed quota. The complaints made by the applicants also mention the names of such persons reproduced hereinabove. S.No. Name of officer Date of appointment 01. Mr. Karamuddin Panhyar 13.08.1997 02. Mr. Attaullah 14.02.2006 03. Mr. Nazir Ahmed Soomro 14.02.2006 04. Mr. Arshad Waris 13.03.2006 05. Mr. Waseemuddin 21.03.2006 06. Mr. Maqsood Hussain Ghummro 21.03.2006 07. Mr. Shujat Hussain 21.03.2006 08. Mr. Muhammad Khan Rind 12.05.2006 09. Mr. Shaikh Mohammad Rafique 20.05.2006 10. Dr. Muhammad Rafique Sahito 30.05.2006 11. Mr. Abdul Fahim Khan 12.09.2006 12. Dr. Ali Nawaz Bhoot 14.09.2006 110. We may observe that nominations of Assistant Commissioners by the Chief Minister after exhausting his quota shall affect the seniority of the incumbents who will pass the P.C.S exams on merits and appointed as Assistant Commissioners till 2017. Therefore, all the aforesaid officers inducted in excess of the quota shall relegate to their original positions. In future, the Sindh Government shall formulate mechanism for nomination of such appointments by transfer to the post of Assistant Commissioner (BS- 17) in Ex.PCS cadre. 111. The applicants in the aforesaid applications have raised individual grievances, inter alia, on the ground that powers conferred on the Crl.Org.P.No.89/11 etc. 87 Chief Minister/ Sindh Government by virtue of the impugned legislative instruments had affected their rights under the service law and the Constitution. We refrain from commenting upon the complaints made by the applicants and the material placed before us. We will also not like to comment on the exercise of powers of the Chief Minister in the individual cases. 112. We have heard learned counsel as well as learned Advocate General Sindh/ Additional Advocate General Sindh and have perused their written arguments. Before addressing the issue of ‘absorption’, ‘deputation’, ‘out of turn promotion’, ‘re-employment’ and ‘appointments on contracts’ in the Sindh Government, we would like to first answer the objections raised by the learned Advocate General Sindh, Dr. Farough Naseem, Mr. Anwar Mansoor Khan, Mr. Yawar Farooqui and Mr. M.M. Aqil Awan (Respondent No.5 in C.P. No.71/2011) on the maintainability of C.P. No.71/2011 and CP No.21 of 2013 by which vires of the impugned legislative instruments have been challenged. MAINTAINABILITY OF PETITIONS. 113. The learned counsel named hereinabove, appearing on behalf of the different Respondents in the aforesaid Constitution Petitions have commonly objected to the maintainability of the aforesaid Petitions under Article 184(3) of the Constitution inter alia, on the ground that in the aforesaid petitions, the Petitioners have raised individual grievances in regard to their seniority and promotion, which under the service laws are not construed as ‘vested right’ of a Civil Servant. Their next argument was that Crl.Org.P.No.89/11 etc. 88 if at all, any right of the Petitioners is impaired, they can approach the appropriate forum for redressal of their grievance. 114. We have considered the arguments of the learned counsel for the Respondents and found them without force for more than one reason. In the first place, if this Court is of the view that impugned enactment is violative of fundamental rights guaranteed under the Constitution, it can examine the vires of such an enactment either on its own or on an application/petition filed by any party. The Petitioners have challenged the vires of the impugned enactments which raise questions of public importance relating to the rights of the Civil Servants in Sindh. This Court in the case of Watan Party and others vs. Federation of Pakistan and others (PLD 2012 S.C 292) has held that term “public importance” is one of the components to attract the jurisdiction of Supreme Court under Article 184(3) of the Constitution coupled with the facts that three elements i.e. question of public importance; question of enforcement of fundamental rights and fundamental rights sought to be enforced as conferred by Chapter-I, Part-II of the Constitution are required to be satisfied. In the case in hand the issues raised in the Petition cover parameters, which attract the jurisdiction of this Court under Article 184(3) of the Constitution. Moreover, this Court in the case of Tariq Aziz-ud-Din reported in (2010 SCMR 1301) while interpreting Article 184 (3) of the Constitution has held that it can examine the exercise of discretion of competent authority whereby it has upset the settled principle of service law adversely affecting upon the structure of civil servants. For the aforesaid reasons, we hold that these Petitions are maintainable under Article 184(3) of the Constitution. Crl.Org.P.No.89/11 etc. 89 ABSORPTION 115. To appreciate the contentions of the parties, we intend to take up different issues arising out of impugned enactments one by one. We will first take up the issue of “absorption” of different employees regularized by the Sindh Government in exercise of the powers conferred upon them under the impugned legislations:- i. The Sindh Civil Servants (Regularization of Absorption) Ordinance, 2011 (Ordinance III of 2011). ii. The Sindh Civil Servants (Regularization of Absorption) Act, 2011 (Act XVII of 2011). iii. The Sindh Civil Servants (Amendment) Ordinance, 2012. iv. The Sindh Civil Servants (Second Amendment) Ordinance, 2012. v. The Sindh Civil Servants (Amendment) Act, 2013. vi. The Sindh Civil Servants (Second Amendment) Act, 2013. 116. From the contentions of the learned Additional Advocate General Sindh and the learned counsel for the parties, we can safely conclude that the term “absorption” has neither been defined by the Act of 1973 nor by the Rules framed thereunder. The impugned legislative instruments have also failed to give any meaningful definition to the said term. In the impugned instruments, the Provincial Assembly has given unbridled powers to the Chief Minister to appoint by transfer (absorb) any person from any organization. The Act of 1973 is promulgated pursuant to Articles 240 and 242 of the Constitution, which provides mode of appointment in terms of Section 5. Section 26 of the Act of 1973 empowers Government to make Rules in order to carry out the purposes of the Act. In exercise of such powers the Sindh Government has framed Rules which are Crl.Org.P.No.89/11 etc. 90 called Sindh Civil Servants (Appointment, Promotion and Transfer) Rules 1974. These Rules provide the procedure for appointment of Civil Servants by three modes (i) Recruitment by initial appointment, (ii) Appointment by promotion and (iii) Appointment by transfer. ‘Absorption’ itself is an appointment by transfer and could only be made under Rule 9A of the Rules of 1974. Under Rule 9A, if a person, who has been rendered surplus on account of abolition of his post in any office or Department of the government or autonomous body and or on account of permanently taking over of the administration of such autonomous body wholly or partially by the Government, can be appointed by transfer to any post in a Department or office in the Government subject to (i) he possesses such qualifications as laid down under Rule 3(2) for appointment to such post, (ii) he shall be appointed to a post of equivalent or comparable scale and in case, if such post is not available then to a post of lower scale and (iii) his seniority shall be reckoned from the date of appointment in that cadre with a further rider that his previous service, if not pensionable, shall not be counted for pension and gratuity. By present impugned legislations, no mechanism has been provided for absorption of an employee, who is appointed by transfer (absorbed) from different organizations in Sindh Government. In fact those who did not have matching qualifications, experience and expertise were transferred on deputation, and absorbed against the language of parent statute and the Rules framed thereunder. Such absorption in absence of mechanism under the newly added section, on the face of it, is violative of the provisions of the Constitution. We during the hearing, required the Secretary Services to provide us the list of the Civil Servants, who are Crl.Org.P.No.89/11 etc. 91 employed in the Sindh Government. He has provided copy of such list, which is reproduced herein under:- 117. According to the list, there are in all 582,746 civil servants in the Sindh Government. The present impugned legislation is likely to affect the civil servants, who are presently working in BS-11 to BS-22, which comes to 153745 in number. The Civil Servants under the mandate of the Constitution have been guaranteed the fundamental rights being citizens. Article 4(1) provides that all citizens are entitled to enjoy equal protection of law and have inalienable right to be treated in accordance with law. In this respect the Act of 1973 framed under the command of Articles 240 and 242 of the Constitution provides protection to all the Civil servants by assuring them that the law promulgated by the Parliament and/or Provincial Crl.Org.P.No.89/11 etc. 92 Assemblies will be subject to the Constitution. The phrase “subject to the Constitution” has been used as prefex to Article 240 which imports that Assemblies cannot legislate law against service structure provided in Part XII of Chapter 1 of the Constitution. 118. Article 9 of the Constitution provides protection to every citizen of life and liberty. The term “life and liberty”, used in this Article is very significant as it covers all facets of human existence. The term “life” has not been defined in the Constitution, but it does not mean nor it can be restricted only to the vegetative or animal life or mere existence from conception to death. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The term “life” includes ‘reputation’ ‘status’ and all other ancillary privileges which the law confers on the citizen. A civil servant is fully protected under Article 9 and cannot be deprived of his right of reputation and status. Under the impugned instruments a person, who without competing through the recruitment process is conferred status of a civil servant. The impugned legislation has amended service laws in a manner to deprive the civil servants from their rights to status and reputation under Article 9 of the Constitution. 119. A civil servant, who after passing the competitive exam in terms of the recruitment rules, is appointed on merits, looses his right to be considered for promotion, when an employee from any other organization is absorbed under the impugned legislative instruments, without competing or undertaking competitive process with the backdated seniority and is conferred the status of a civil servant in complete disregard of recruitment rules. Under the impugned enactments, it is the sole discretion of the Chief Crl.Org.P.No.89/11 etc. 93 Minister to absorb any employee serving in any other organization in Pakistan to any cadre in the Sindh Government. The discretion of the Chief Minister to absorb any employee from any part of Pakistan to any cadre with backdated seniority directly affects the fundamental rights of all the civil servants in Sindh being violative of the Article 4 which provides equal protection of law to every citizen to be treated in accordance with law, which is inalienable right of a citizen. The impugned legislative instruments have been promulgated to extend undue favour to few individuals for political consideration and are against the mandate of the Civil Servant Act and recruitment rules framed thereunder. The impugned instruments are discriminatory and pre-judicial to public interest as such enactments would be instrumental in affecting the Civil servants’ tenurial limitations and their legitimate expectancy of future advancement. The provision of absorption on the plain reading reveals that this provision has been promulgated to circumvent and obviate the very framework of the Provincial civil structure, as envisaged by the Constitution and law. By such impugned instruments, a parallel system based on discrimination and favoritism has been imposed to supersede the existing law, Rules and Regulations governing the important matters of civil servants like ‘absorption’, therefore, it can be safely held that the impugned instruments being discriminatory are violative of Article 25 of the Constitution, as it is not based on intelligible differentia not relatable to the lawful object. 120. The impugned Ordinance and Act of 2011 validating absorption by the Sindh Government are ultra vires of Articles 240 and 242 of the Constitution, as these instruments, in the first place, have been promulgated Crl.Org.P.No.89/11 etc. 94 without amending the Act of 1973, and the rules framed there-under. Moreover, the impugned validation instruments are multiple legislation and do not provide mechanism by which absorption of different employees took place in complete disregard of the parent statute and the rules framed there- under. By these impugned validating instruments restriction placed by Articles 240 and 242 of the Constitution has been done away. The validating instruments allowed absorption of a non Civil Servant conferring on him status of a Civil Servant and likewise absorption of a Civil Servant from non cadre post to cadre post without undertaking the competitive process under the recruitment rules. We may further observe that the Provincial Assembly can promulgate law relating to service matters pursuant to the parameters defined under Articles 240 and 242 of the Constitution read with Act of 1973 but, in no way, the Provincial Assembly can introduce any validation Act in the nature of multiple or parallel legislation on the subject of service law. 121. By the impugned legislations ‘absorption’ of an employee in ex-cadre group would deprive the seniority and progression of career of meritorious civil servants. A substantial number of unfit and unmeritorious officers and beneficiaries have been absorbed in the important groups, services, positions with the help of authorities and such legislations allow this to continue. The absorption, by way of impugned instruments, would practically cause removal of constitutional and legal differentiations that exist between various cadres, posts and services. Moreover, the culture of patronage will intensify the activity of bringing more politicization, inefficiency and corruption in the provincial services. The Civil Servants Act Crl.Org.P.No.89/11 etc. 95 and Rules framed provide transparency in appointments, which would disappear and the employees who could not get in service through competitive process may also be obliged to look for a political mentor instead of relying on merits in order to protect their careers. We may also observe here that the absorption under the aforesaid impugned instruments is not only confined to non-civil servants to civil servants but through these impugned instruments non-civil servants, who were serving on non-cadre posts, have been transferred and absorbed to cadre posts, the pre-requisite of which is competitive process through Public Service Commission or by other mode provided in the relevant recruitment rules. Law of such nature which is violative of the recruitment rules will encourage corruption and bad governance and the public at large will loose confidence in the officials who are being absorbed under the garb of the aforesaid impugned instruments. 122. In the case of Syed Mahmood Akhtar Naqvi and others vs. Federation of Pakistan and others (PLD 2013 S.C 195), this Court while interpreting the guarantees extended to civil servants, has observed in Para- 10 as under:- “10. It is worth noting that the Constitution of 1956 and 1962 contained chapters outlining certain safeguards for the civil services. In the 1973 Constitution, the framers omitted a similar chapter from the Constitution and shifted the onus to ordinary legislation. The Law Minister at the time, who was steering the Constitution Bill informed the Constituent Assembly that in the past, constitutional protection for civil servants had been granted “because those who served came from outside and they needed these protections in respect of service”. However, since now “this country [was] being run by the leaders of the people” such protections were no more deemed necessary. The purpose of this change therefore, was to “[break] away from the past colonial traditions” and to emphasize the point that civil servants were not entitled to “any superior or higher status” compared to other citizens. Another reason the Law Minister gave was that the “Constitution is the basic document Crl.Org.P.No.89/11 etc. 96 providing the fundamentals and this matter was not so fundamental as to be provided in the Constitution.” (Parliamentary Debates, 31st December, 1972 and 19th February, 1973). It was therefore decided that, as stated in Articles 240, 241 and 242 of the Constitution, the matter would be dealt with through statutes. Such statutes were subsequently passed and include the Civil Servants Act, 1973. It may be emphasized that whatever else the intent behind these changes may have been, it could not have been meant to subjugate of civil servants to constantly changing political imperatives. The intent of the Constitution cannot but be a fuller realization of the goal set out in the speech of the country’s founding father quoted earlier : “ fearlessly, maintaining [the] high reputation, prestige, honour and the integrity of [the civil] service.” 123. Though the Court interpreted the provisions of Federal Civil Servants Act of 1973 in the aforesaid judgment but the law and the rules prescribed therein are identical to the language of the Act of 1973 with minor exceptions. We therefore, can safely hold that the impugned instruments empowering validation to the absorbees and appointment by transfer (absorption) of non-civil servant to a cadre post in Sindh Government are contrary to the parameters guaranteed by the Constitution under Articles 240 and 242 and absorptions in such manner to extend favours to unmeritorious employees by the Sindh Government. Such absorption has led to the burnt of increasing lawlessness and violence on one hand and on the other hand meritorious officers despite discharging their duties with utmost dedication and professional excellence are affected with a griping sense of insecurity in respect of their future prospects in careers. 124. We have also noticed the absorption of employees from different departments/organizations in the Sindh Police through the impugned legislation and the material placed before us reflects that almost all of them have been absorbed for political considerations. The senior Crl.Org.P.No.89/11 etc. 97 police officers in the rank of D.I.G, SSP, SP, DSP etc., without undergoing the mandatory police training, are posted in field particularly in Karachi, which has resulted in deteriorating law and order situation in Sindh specially in Karachi owing to their lack of competence. This Court in the case of Watan Party and another vs. Federation of Pakistan and others (PLD 2011 S.C 997) popularly known as “Karachi Law & Order case”, has noticed this situation and observed as under:- “31. It seems that the police primarily being responsible to enforce law and order has no intention to deliver. Either they are scared or they are dishonest or absolutely lack the requisite skills. It could be that in the year 1992 operation clean up was launched against MQM wherein statedly, the police had played an active role, but subsequently, 92 police officers/officials disappeared and up till now there is no clue of their whereabouts nor is it known that by whom, and under whose patronage, such persons were abducted and/or killed. Another reason appears to be that police force has been highly politicized, recruitments have been made in political consideration. It came to light during hearing of the case that in police force many police officers have been recruited on political considerations who have managed to occupy such posts for extraneous considerations and senior officers in the rank of SSP, SP and DSP etc. have been inducted into the force from other organizations without following any rules and even they have not undergone training for the purpose of policing. To highlight this aspect, following information has been obtained from the Advocate General, Sindh: - 1. Mr. Dost Ali Baloch from Intelligence Bureau, absorbed in Sindh Police with effect from 14-10-1998, presently working as Director General Finance, CPO Sindh Karachi (BS-20). 2. Mr. Muhammad Malik from FIA, absorbed in Sindh Police with effect from 31-10-2007, presently working as Director General Traffic, Planning & Regulation, Sindh Karachi (BS-20). 3. Mr. Muhammad Riaz Soomro from Anti-Narcotic Force, absorbed in Sindh Police with effect from 26-02-2008, presently working as SSP, District Mirpurkhas (BS-19). 4. Mr. Muhammad Ali Baloch appointed as Assistant Director (Computer) in Sindh Police on 6-4-1999, presently working as SSP, District Tando Muhammad Khan (BS-19). Crl.Org.P.No.89/11 etc. 98 5. Mr. Abdul Hadi Bullo from OMG, absorbed in Sindh Police with effect from 16-7-2003, presently working as SSP District Matiari (BS-19). 6. Mr. Attaullah K. Chandio, from Solicitor Department, absorbed in Sindh Police with effect from 1-6-1995, presently working as SP, Special Branch, Mirpurkhas (BS-18). 7. Mr. Shahid Hussain Mahesar on deputation from Intelligence Bureau with effect from 26-7-2009, presently working as SSP Political (SB) Karachi (BS-18). 8. Mr. Zameer Ahmed Abbasi on deputation from National Accountability Bureau with effect from 31-12-2008, presently working as SDPO/Frere, District South, Karachi Range (BS-17). 9. Mr. Shiraz Asghar Shaikh, on deputation from PEMRA with effect from 23-8-2008, presently working as SDPO/Darakhshan, District South, Karachi Range (BS-17). 10. Mr. Faisal Mukhtar Vakaasi on deputation from National Accountability Bureau with effect from 31-3-2009, presently working as Principal, Training & Recruitment, Karachi Range (BS-17). 11. Mr. I.D. Mangi, on deputation from ACE, Sindh with effect from 10-4-2009, presently working as DSP/ACLC, Karachi Range (BS- 17). 12. Major (R) Khurram Gulzar, re-employed on contract basis as DIGP (BS-20) for a period of one year with effect from 27-12-2010. 13. Col. (R) M.A. Wahid Khan, re-employed as Principal, S.B.B. EPT Razzakabad, Karachi (BS-19) for a period of one year with effect from 1-9-2008. Extension granted for two years with effect from 1-9-2009. 14. Major Col. (R) Muhammad Ahsan Umar, re-employed as SSP, District East, Karachi Range (BS-19) for a period of two years with effect from 24-9-2010. 125. The impugned legislation on absorption is persons/class specific as it extends favours to specific persons infringing the rights guaranteed to all the civil servants under the service structure provided under Articles 240 and 242 of the Constitution. This Court in the case of Baz Muhammad Kakar and others vs. Federation of Pakistan and others (PLD Crl.Org.P.No.89/11 etc. 99 2012 S.C 870) has held that the legislature cannot promulgate laws which are person/class specific as such legislation instead of promoting the administration of justice caused injustice in the society amongst the citizens, who were being governed under the Constitution. In the case in hand the impugned legislation, prima facie, has been made to protect, promote and select specific persons who are close to centre of power, and has altered the terms and conditions of service of the civil servants to their disadvantage in violation of Article 25 of the Constitution. 126. From the above discussion, the aforesaid legislative instruments on the issue of absorption are liable to be struck down being violative of Constitutional provisions referred to hereinabove, therefore, we hold as under:- (i) That the Sindh Government can only appoint a person by absorption by resorting to Rule 9A of the Rules of 1974. (ii) Sindh Government cannot order absorption of an employee who is a non-civil servant, however, an employee of an autonomous body can be absorbed in Sindh Government subject to conditions laid down under Rule 9-A of the Rules of 1974. (iii) Sindh Government cannot absorb a civil servant of non-cadre post to any cadre which is meant for the officers who are recruited through competitive process. (iv) Any backdated seniority cannot be granted to any absorbee and his inter-se seniority, on absorption in the cadre shall be maintained at the bottom as provided under the Rules regulating the seniority. (v) No civil servant of a non-cadre post can be transferred out of cadre to be absorbed to a cadre post which is meant for recruitment through competitive process. A civil servant can be transferred out of cadre to any other department of the government subject to the restrictions contained under Rule 9 (1) of the Rules of 1974. Crl.Org.P.No.89/11 etc. 100 (vi) The legislature cannot enlarge the definition of “civil servant” by appointing a non-civil servant through transfer on the basis of absorption conferring him status of civil servant pursuant to the impugned legislation which is violative of the scheme of civil service law as provided under Articles 240 and 242 of the Constitution. DEPUTATION 127. The issue of ‘deputation’ has created lot of unrest amongst the Civil Servants. From the arguments of the learned counsel and the material produced before us, we are of the considered view that the term “deputation” has not been provided under any civil service law and this term has been borrowed from Esta Code 2009 Edition Chapter-III at page 385. Part-II at Page 426 of the Esta Code which deals with the issue of deputation and serial No.29, which defines “deputation”, is reproduced herein below:- “Hither-to the term ‘deputation’ has not been formally defined. However, according to the practice in vogue a Government servant begins to be regarded as a “deputationist” when he is appointed or transferred, through the process of selection, to a post in a department or service altogether different from the one to which he permanently belongs, he continues to be placed in this category so long as he holds the new post in an officiating or a temporary capacity but ceases to be regarded as such either on confirmation in the new post or on reversion to his substantive post.” 128. In the case of Muhammad Arshad Sultan and another vs. Prime Minister of Pakistan, Islamabad and others (PLD 1996 SC 771) at page 777, this Court has defined “deputation” in the following terms:- “Deputationist’ to be a Government servant who is appointed or transferred through the process of selection to a post in a department or service altogether different from the one to which he permanently belongs. Such a Government servant continues to enjoy this status so long as he holds the new post Crl.Org.P.No.89/11 etc. 101 in an officiating or a temporary capacity but ceases to be regarded as such either on confirmation in the new post or on reversion to his substantive post. The departmental interpretation referred to by the said Tribunal as having the effect of statutory rule has still being retained, as is evident from the ESTACODE (1983 Edition) in Chapter III, Part II at page 217. This Court has also accepted the aforesaid definition of the term ‘deputation’ in Islamic Republic of Pakistan v. Israrul Haq and others PLD 1981 SC 531. 129. From the aforesaid definition, we can safely hold that no non- civil servant can be transferred and appointed in the Sindh Government by way of deputation to any cadre. The procedure provided under the Esta Code reproduced hereinabove has been approved by this Court in the case of Mohammad Arshad Sultan. The Act of 1973 or the rules framed thereunder does not provide mechanism to regulate appointment by transfer on deputation and therefore in the case of Lal Khan vs. Employee Old Age Benefit Institution (2010 PLC (CS) 1377), a Division Bench of Sindh High Court has held as under:- “This brings us to the conclusion that there is no legislation in violation of Article 240(b) of the Constitution in Sindh, to regulate the transfer by way of Deputation, therefore, at provincial Level, same view can be adopted to the effect that neither law permits, nor there is any provision, which can authorize, the transfer of non-civil servant, by way of Deputation.” 130. This Court while affirming the aforesaid judgment has refused the leave. The Sindh Government in exercise of powers under Section 10 read with Section 24 started appointing by transfer on deputation the employees of different Organizations in Sindh government, who were not civil servants. This act of Sindh Government has created unrest amongst the civil servants and as a result, a Petition was filed in the High Court of Sindh Crl.Org.P.No.89/11 etc. 102 at Hyderabad by Syed Imtiaz Ali Shah, which was allowed in the following terms:- “6. We feel that approach of the Sindh Government is not complying with the directives contained in the judgment was ex- facie contemptuous. At the request of Secretary Services we found it appropriate to decide this issue of transfer of the civil servants by the government authority in detail under section 10 of the Civil Servants Act 1973 besides the power of the competent authority to appoint them on deputation in the province. In the first place the aforesaid judgment of this Court fully covers this issue but in order to remove wrong impression if any of the Sindh Government. The postings of the officers in the different departments of Sindh, list of which has been reproduced hereinabove would hamper the good governance on one side damage the department on the other hand. If such actions which are ex-facie outside the civil servant laws and rules are un-checked it would paralyze the system besides it would cause anger dissatisfaction and heart burning to those who are entitled to promotions and are otherwise eligible to hold the office, which is occupied by the strangers under the garb of deputation and or out cadre transfer and or posting non-cadre officers against the cadre posts. In the first place there is no provision either under the Sindh Civil Servant Act or the rules framed there under authorizing the competent authority to order deputation of an officer. A detailed discussion has been made in the judgment referred to hereinabove on this issue. We have examined the list of the officers of the federal government who were posted in different departments in the Sindh Government on deputation under the garb of exigency of services. None of them had the eligibility and or competence to be posted against such officer cadre post and when confronted the Secretary Services has conceded before us that the officers of the Federal Government in occupational group who are posted in the Sindh Government in different departments against cadre posts neither qualify nor had the eligibility to hold such post. Posting of such officers on deputation in Sindh would never improve the system within the department, as the deputationists on expiry of his deputation period would join his parent department. Such officer even otherwise is not accountable and the department in which he is appointed would ultimately suffer. Additionally those who are eligible and are likely to be promoted in the department are deprived of their lawful right to promotions which is a permanent cause of heart burning to the cadre officers. A civil servant who is on deputation even looses the status of civil servant during the period of deputation as has been held by Honourable Supreme Court in the case of Mazhar Ali v. Federation of Pakistan reported in 1992 SCMR 435 which by itself is sufficient ground to discourage the posting of the Crl.Org.P.No.89/11 etc. 103 nature. Additionally Article 240 of the Constitution provides that appointments to and the conditions of services of a person could be determined by Act of the Parliament and or of the Provincial Assembly. In other words the terms and conditions of a civil servant cannot be deviated from by an Administrative/ Executive order which in the case in hand has been done by the competent authority under the garb of exigency. Such orders have no sanction of law. 7. Section 10 of the Sindh Civil Servants Act also restricts out of cadre transfer of a civil servant. The posting and transfer under section 10 of the civil Servants Act authorizes the competent authority the transfer within the cadre and not out of cadre as the provisions of section 10 of the Act has to be read with a rider that the terms and conditions of service shall not be changed by such an order. The Honourable Supreme Court in the case of Muhammad Karim v. director Health Services reported 1987 SCMR 295 and Masood Ahmed v. Taj Muhammad Baloch reported in 1999 SCMR 755 has held that Section 10 does not authorize the competent authority to transfer a civil servant out of cadre. 8. What we have noticed from the list of the officers who are either performing their duties as deputationists or have been posted by way of transfer to a cadre post do not have the required qualification nor the eligibility to hold such office. In law a civil servant can only be appointed against the cadre post if he has passed the competitive examination or his appointment was made through competitive process which means either he is a PCS Officer or PSS Officer or he is officer from APUG (All Pakistan Unified Grade) group. The Secretary services has frankly conceded that the officers from the federal government who are serving in the Sindh Government are neither qualified for the post for which they are posted on deputation in the Sindh government nor have expertise and or knowledge of such office. We have noticed that under the garb of exigencies non cadre officers have been posted out of cadre in different administrative departments in Sindh on deputation basis irrespective of their qualification and or eligibility having no relevance between their experience and past service with their current places of postings. The Secretary services on our inquiry has stated before us that there are sufficient number of cadre officers available for posting and if the out of cadre officers are retransferred and posted to their in cadre department there will be no vacuum at all. 9. To improve the working of the departments we are of the considered view that postings of the nature should be discouraged and respect should be given to the law and the rules in order to minimize the unrest amongst the officers of the department who suffer and or being deprived of their lawful Crl.Org.P.No.89/11 etc. 104 right to promotion or otherwise. The postings of officers mentioned in the lists reproduced hereinabove are not inconformity of the findings of this Court given in the cases of Lal Khan Jatoi which findings were affirmed by the Honourable Supreme Court in its order referred to hereinabove. 10. We for the aforesaid reasons direct the respondents to immediately take steps to withdraw all the officers (mentioned in the list) posted either on the basis of deputation and or on transfer out of their cadre and posted to different cadre posts in different departments of Sindh, be repatriated to their parent departments in the Federal Government and or to be transferred and posted to their own cadre and department in Sindh within 15 days from the date of communication of this order. In future the Sindh government/competent authority is restrained from issuing order of posting of any non-cadre officer against cadre posting by transfer under section 10 of the Civil Servant Act nor they would depute any officer from Occupational Group of the Federal Government or from autonomous except in exigency unless he meets the criteria of matching qualification, eligibility and experience to the proposed post. 11. We are informed that some petitions have been filed by deputationists before the Principal seat. Neither the petitions nor its number nor any order of the Court has been placed before us. We have been informed that amongst them one petitioner has filed a petition before this court which was dismissed and on appeal before the Honourable Supreme Court, leave was refused. Pendency of such petitions in no way restricts this Bench from seeking implementation of the order of Honourable Supreme Court referred to hereinabove. 12.………………………………………………………………………. 13………………………………………………………………………. 14. This petition is allowed in the above terms with the aforesaid directions with the listed application. 131. The Petition for leave to appeal was filed by some of the deputationists, in which leave was refused with the following observations affirming the judgment of the Sindh High Court:- “4. We have heard learned counsel for the petitioners in CP No.802-K of 2010 and we have examined the material made available before us. The petitioners appear to have grievance against directions in para No.10 of impugned judgment so far Crl.Org.P.No.89/11 etc. 105 as it relates to their repatriation or relieving them from their deputation. The main contention raised by their learned counsel was that the unexpired period of deputation could not be cancelled/withdrawn and the petitioners were ordered to be relieved and repatriated to their departments without providing them an opportunity of hearing. When confronted whether the petitioners enjoy any vested right as deputationist or otherwise to hold any particular post for all times to come, he admitted that no such right inhered in the petitioners. He, however, contended that in the impugned judgment there were some observations to the detriment of the petitioners which need to be deleted particularly, when the same have been made without providing an opportunity of hearing to them. 5. It is well settled that a deputationist does not have any vested right to remain on the post as deputationists for ever or for a stipulated period. He can be repatriated to the parent department at any time. In this reference may be made to the case of Shafiur Rehman Afridi v. CDA (2010 SCMR 378). As regards the question of contention of the petitioners that they were not provided an opportunity of hearing before passing the impugned judgment, it may be stated that there is no cavil with the proposition that the principle of audi alteram partem (hear the other side; hear both sides; no man to be condemned unheard) has always been considered to be embedded in the statute even if there is no specific or express provision because no adverse action can be taken against any one yet, at the same time this principle could not be treated to be of universal nature because before invoking/applying this principle one has to specify that as against action contemplated, prima-facie, he has a vested right to defend the action. Equally, in cases where the claimant has no entitlement in his favour he would not be entitled to the principle of natural justice. In this reference may be made to the case of Justice Khurshid Anwar Bhindar v. Federation of Pakistan (PLD 2010 SC 483). In the instant case, as noted hereinabove, learned counsel for petitioners could bring nothing to our notice that the petitioners have any vested right to remain on a post as a deputationist or otherwise and that they cannot be repatriated/relieved at any time. Thus, the petitioners cannot claim the protection of the cited principle. Besides repatriation of the petitioners, if any, shall, in this case, be as a fall out of the judgment impugned herein which cannot be questioned individually. Be that as it may, learned Judges of Division Bench have taken note of unrest of officers of concerned departments who are deprived of their lawful rights to promotion on account of such kind of postings causing heart burning to the cadre officers besides the over all effect on the system within departments etc. and in this they have pertinently observed: Crl.Org.P.No.89/11 etc. 106 “To improve the working of the departments we are of the considered view that postings of the nature should be discouraged and respect should be given to the law and the rules in order to minimize the unrest amongst the officers of the department who suffer and or being deprived of their lawful right to promotion or otherwise. The postings of officers mentioned in the lists reproduced hereinabove are not inconformity of the findings of this Court given in the cases of Lal Khan Jatoi which findings were affirmed by the Honourable Supreme Court in its order referred to hereinabove.” As regards contention of learned counsel for petitioners, to the effect that some observations to the detriment against the employees/petitioners have been made, it may be stated that no adverse remarks seem to have been made specifically against the petitioners some of whom even do not appear in the list of officers reproduced in the impugned judgment so as the same be kept in their service record in their respective departments. 6. Considering the case of the petitioners in the above petition, in the above perspective, we find no merit in the petition which is dismissed accordingly. Leave refused. C.P.No.4-K of 2011 Through C.M.A.No.82 of 2011 Mr. K.A.Wahab, AOR for the petitioner has sought permission to withdraw this petition. Order accordingly. CPLA No.4-K of 2011 is dismissed as withdrawn.” 132. The procedure provided under the Esta Code requires that a person who is transferred and appointed on deputation must be a government servant and such transfer should be made through the process of selection. The borrowing Government has to establish the exigency in the first place and then the person who is being transferred/placed on deputation in Government must have matching qualifications, expertise in the field with required experience. In absence of these conditions, the Government cannot appoint anyone by transfer on deputation. The Sindh Government has conceded before this Court that the deputationists did not have the matching qualifications to the cadre in which they were working on deputation and Crl.Org.P.No.89/11 etc. 107 were ordered to be repatriated. Instead of repatriation, the Sindh Government absorbed them by the impugned instruments granting them backdated seniority as well. Some of the civil servants serving in their parent department on non-cadre posts were transferred and absorbed to the cadre posts against the language of Section 10 of the Act of 1973 on the basis of the impugned enactments. We are conscious of the definition given under Section 2(1)(b)(i) of the Act of 1973 reproduced here under:- “2(1)(b) “civil servant” means a person who is a member of a civil service of the Province or holds a civil post in connection with the affairs of the Province, but does not include-- (i) a person who is on deputation to the Province from the Federation or any other Province or authority or, (ii)………………………………………………………………………. (iii)…………………………………………………………………….. 133. The aforesaid sub-section specifically mentions that a person on deputation will loose the status of a civil servant. The word “authority” used under this sub-section does not authorize the Sindh Government to transfer and appoint on deputation any person who is not a civil servant within the definition given under the Sindh Civil Servants Act, 1973 and or Government Servant as mentioned under the Esta Code. In order to harmonize Section 2(1)(b)(i) and bring it in conformity with the language of Esta Code, should be read as under:- “2(1)(b) “civil servant” means a person who is a member of a civil service of the Province or holds a civil post in connection with the affairs of the Province, but does not include-- (i) a person who is on deputation to the Province from the Federation or (to) any other Province or (to) authority or, (ii)………………………………………………………………………. (iii)…………………………………………………………………….. Crl.Org.P.No.89/11 etc. 108 The aforesaid word ‘to’ shall bring an end to the controversy on deputation besides it will be in conformity with the civil service structure and the Esta Code. 134. The Provincial Assembly through the impugned instruments pronounced a legislative judgment with the sole object to accommodate their blue-eyed, who were neither civil servants nor Government servants. The deputationists brought in were not recruited through the process of the competitive exams and were appointed on deputation to the cadre posts, which appointments affected the rights of the civil servants serving in the different Government departments, as their promotions were blocked. 135. Through the impugned instruments, definition of Civil Servant has been widened by including non-civil servants employed in the different organizations having different service rules regulating their terms and conditions of service. The interpretation of Section 2(1) (b) of the Act of 1973 does not confer powers on the Sindh Government to grant status of civil servant to an employee of an autonomous body and non-civil servant nor does it authorize under the scheme of the Constitution to transfer on deputation a civil servant from non-cadre post to a cadre post. In the case of Muhammad Mubeen-us-Salam reported in (PLD 2006 SC 602), this Court while examining the vires of Section 2-A of the Service Tribunals Act 1973 declared it ultra vires of the Articles 240 and 260 of the Constitution to the extent of category of employees, whose terms and conditions of service were not regulated by the Federal legislature and by deeming clause, they were conferred the status of Civil Servants as defined under Section 2(1) (b) of the Crl.Org.P.No.89/11 etc. 109 Act of 1973. The present impugned legislation has conferred the status of a civil servant to a deputationist, who is an employee of an Organization having distinct service rules. The term “deputationist” as has been interpreted by this Court clearly draws line between the Government servant and a non-civil servant. 136. The transfer by appointing on deputation of an employee having no matching qualifications has created sense of insecurity which multiplied the concern of the civil servants when these deputationists were absorbed under the impugned legislative instruments. It is a misconception that by an amendment in the parent statute, the definition of ‘civil servant’ can be enlarged as has been done through the impugned legislations. By a deeming clause as introduced under the impugned legislation, an employee holding a post under any authority or corporation, body or organization established by or under any Provincial or Federal law or which is owned or controlled by Federal or Provincial Government or in which Federal Government or Provincial Government has controlling share or interest could not be conferred status of a civil servant. The law does not confer such powers upon a Provincial Assembly to change the structure of service law in conflict with the provisions of Article 240(b) or Article 242(1B). 137. The concept of power under our Constitution is distinct from other constitutions of common law countries. Under the Constitution of Pakistan, the sovereignty vests in Allah and it is to be exercised by “the people within the limits prescribed by Him”, as a sacred trust. The Authorities in Pakistan while exercising powers must keep in mind that it is not their prerogative but a trust reposed in them by the Almighty Allah and Crl.Org.P.No.89/11 etc. 110 the Constitution. The impugned legislation is promulgated to benefit patent class of persons specific and violative of Article 25 of the Constitution as it is not based on intelligible differentia not relatable to the lawful object. The impugned legislation on deputation is violative of the service structure guaranteed under Article 240 and 242 of the Constitution which provides mechanism for appointments of Civil Servants and their terms and conditions as envisaged under Act of 1973 and the Rules of 1974 framed thereunder. The object of the Act of 1973 is to maintain transparency in appointments, postings and transfers of Civil Servants, whereas deputationists who otherwise are transferred and appointed by the Sindh Government under the impugned instruments have destroyed the service structure in Sindh and has blocked the promotions of the meritorious civil servants in violation of the fundamental rights guaranteed to them under Articles 4, 8, 9, 25, 240 and 242 of the Constitution, as discussed hereinabove and are liable to be struck down. RE-EMPLOYMENT 138. Dr. Farough Naseem, Mr. Anwar Mansoor Khan and Mr. Yawar Farooqui did not address the Court on this issue. 138. Through the impugned Ordinance No.VI of 2012 and Act XIV of 2013, the Sindh Government, by virtue of the amendment in Section 14 was given power to re-employ a retired civil servants. The provisions of un- amended section 14(1) and (2) were interpreted by this Court and the amended sub-section (3) was introduced to defeat the judicial pronouncement with regard to induction through re-employment of retired officers on contract basis. The post retirement re-employment is major Crl.Org.P.No.89/11 etc. 111 problem in the smooth service of career officers in terms of promotions and postings instilling a sense of injustice. This Court has time and again recorded its displeasure and reservations to re-employment. In Human Rights Cases No. 57701-P of 2010 and others reported as (PLD 2011 SC 205), this Court has held as under:- “6. This Court is fully conscious of its duty, which has to be discharged under the Constitution and when it is attempted to hush up the corruption cases, such as one under consideration, the Court can pass appropriate order as it has already directed and it could also not be oblivious of its function to ensure that in the departments like the police and FIA, people, who deserve to be promoted on the basis of efficiency or performance etc. are appointed and not on contract basis. Therefore, we direct the Secretary, Establishment Division to furnish the list of all Police officers, including the Director General, FIA who have been appointed on contract basis and also furnish the reasons for the necessity and the interest of the Government for allowing them to continue with such posts like IG and DG, which are of high importance and the persons occupying these posts are supposed to be responsible to ensure the rule of law in the country. The list shall be furnished by the Secretary, Establishment Division by 21.1.2011. On receipt of such list, the office shall issue notices to all such officers to appear and explain as to under what authority they have been appointed on contract basis, and as to why notifications for their appointments should not be cancelled.” 140. Un-amended Section 14 of Act of 1973 allowed re-employment of retired civil servants, but only in exceptional and compelling circumstances that too, in the public interest, whereas the impugned instruments has opened flood gates of re-employment for those who have access to Authorities. There is no scheme provided by the Sindh Government by amending sub-section, which authorizes the Sindh Government for re-employment of the retired government servants to regulate re-employment. The power of re-employment would adversely affect the terms and conditions of the civil servants, who are in service. The Crl.Org.P.No.89/11 etc. 112 impugned legislation has impinged upon the civil service tenurial limitations and civil servants’ legitimate expectancy of future advancement. This Court in the case of Mrs. Farkhanda Talat vs. Federation of Pakistan and others (2007 SCMR 886) has ruled out as under:- “is that the same hold out a guarantee to all civil servants that no action could ever be taken which could adversely effect terms and conditions of their service e.g. tenure of their employment; pay and grade earned by them through years of labour and hard work; the right to promotion including legitimate expectancy of future advancement in their respective careers; the retirement benefits such as pension, the gratuity and provident fund etc. and all other terms and conditions which were prescribed by Chapter II of the said Act of 1973 and by other laws, rules and regulations relating to the subject.” 141. The original purpose of un-amended section 14 was to provide stopgap arrangement allowing the Government to recruit the officer having matching qualifications by the modes provided under the recruitment rules. Presently we have been informed that the retired officers of the Government are serving on cadre posts for years together. The Sindh Government is allowing retired servant to continue as Secretaries on the misconception that such persons have expertise on subject. The Secretary of a department under the Rules of Business is to play administrative role and is provided technical assistance by the wing within the Department. It is a cadre post and by allowing the re-employment of a retired civil servant for years together would block the promotions of the prospective officers who have gained sufficient experience by passage of time by serving in the Government. 142. Likewise re-employment itself negates the mandate of the provisions of Act of 1973 and the rules framed thereunder inasmuch as a retired officer re-employed is not governed by the rules regulating the terms Crl.Org.P.No.89/11 etc. 113 and conditions of civil servants instead by the terms of contract under which he is re-employed. 143. Issue of re-employment also came under discussion before the larger Bench of this Court in Suo Moto Case No.16 of 2011 and on 22.03.2013, the larger Bench while dealing with the issues has observed that re-employment of a person on his retirement must be made in public interest because re-employment against sanctioned post is likely to affect the interest of junior officers, who are waiting for promotion to the next higher ranks and their rights of promotion are blocked. Likewise, the officer whose right is matured for promotion has to wait till such time that the re-employed completes his contract. In the intervening period the officer has to face difficulties in maintaining his seniority. It is settled principle of law that if the right of promotion is not blocked by re-employment then such powers can be exercised, then too in exceptional cases for a definite period. 144. We, therefore, hold that re-employment of such a nature as proposed under the amended sub-section (3) of Section 14 is violative of the provisions of Act of 1973 and rules framed thereunder, besides it violates the fundamental rights of the serving civil servants, who on account of such re- hiring on contract are deprived of their legitimate expectancy of promotion to a higher cadre, which is violative of the provisions of Articles 4, 9 and 25 of the Constitution. OUT OF TURN PROMOTIONS 145. Dr. Farough Naseem, M/s Anwar Mansoor Khan and Yawar Farooqui did not make any contention on the issue of out of turn promotions, however, written synopsis were filed by the Advocate General Sindh and Crl.Org.P.No.89/11 etc. 114 Mr. M.M.Aqil Awan. In addition to the written synopsis filed by Mr. M.M. Aqil Awan, he also made oral submissions in which he submits that no mechanism has been provided under the impugned legislation for out of turn promotions. 146. We have considered the arguments of the learned counsel and have perused the record. By the Ordinance dated 22nd January 2002, the Governor of Sindh amended Act of 1973 by inserting sub-section 9A, empowering the competent authority to grant out of turn promotions or award or reward in such manner as may be prescribed to a civil servant, who provenly exhibits the act of gallantry while performing his duties or very exceptional performance beyond the call of duty. It was further provided under the Ordinance that the aforesaid out of turn promotions or award/reward will be conferred in the manner prescribed. The term ‘prescribed’ is defined under Section 2(1)(g) of the Act of 1973 and means “prescribed by Rules”. This Ordinance of 2002 was protected by Article 270AA made under 17th amendment of the Constitution. 147. In this background the Government framed and added Rule 8-B in the Rules of 1974 notified on 10.02.2005. On 11.05.2005 Rule 8-B was omitted. 148. The Ordinance III of 2008 was issued by which Section 9-A was omitted. However, this Ordinance was not placed before Assembly as a result of which, it lapsed after 90 days and Section 9A which was introduced pursuant to the Ordinance 2002 stood revived in view of judgments of this Court in the case of Sabir Shah (PLD 1995 SC 66), Federation of Pakistan Crl.Org.P.No.89/11 etc. 115 vs. M. Nawaz Khokhar (PLD 2000 SC 26) and Air League P.I.A.C Employees vs. Federation of Pakistan (2011 SCMR 1524). 149. On 31.03.2009, the Sindh High Court vide its judgment in C.P.No.D-1595/2005 challenging out of turn promotions of different police officers directed the Sindh Government to revive Rule 8-B and the Committee constituted therein shall examine the case of each police officer. On 29.05.2009, the amendment was brought in the Rules of 1974 and Rule 8-B was revived. However, the directives contained in the judgment of the Sindh High Court were never complied with instead, out of turn promotions were not only being granted to the police officers, but this concession was also extended to civil servants, who were not members of police force. Through the impugned legislation, section 9A was further amended in the manner that it omitted the term ‘prescribed’. In other words, the power of the Committee under the rule to examine and recommend a case of ‘out of turn promotion’ was done away. Through impugned legislation Sections 23- A and 23-B in the Act of 1973 were further amended by Ordinance VI of 2012 and Ordinance XVII of 2012. The impugned legislation by Ordinance and by impugned Acts of 2013, all the out of turn promotions made immediately before the commencement of the impugned Acts were regularized from the date of such promotions which means that the beneficiaries of out of turn promotions were further conferred the backdated seniority from the date of their promotion. 150. On the issue of ‘out of turn promotion’ a Division Bench of this Court in its judgment in the case of Capt. (Retd) Abdul Qayyum Executive Engineer vs. Muhammad Iqbal Khokhar and 4 others (PLD 1992 SC 184) Crl.Org.P.No.89/11 etc. 116 has held that “Competent Authority was empowered to grant out of turn promotion.” However, this view was reviewed by this Court in the judgment of Muhammad Nadeem Arif and others vs. Inspector General of Police Punjab, Lahore and others (2010 PLC (C.S) 924), where Full Bench of this Court has concluded that out of turn promotions is violative of Articles 9 and 25 of the Constitution. The relevant finding on the out of turn promotions is given in the aforesaid judgment, reads as under:- “Out of turn promotion, as envisaged in the impugned instruction, is not only against Constitution but also against Injunctions of Islam. Out of turn promotion in a public department generates frustration and thereby diminishes the spirit of public service. It generates undue preference in a public service. Element of reward and award is good to install the spirit of service of community but it should not be made basis of accelerated promotion.” 151. After the aforesaid judgment of this Court, the Punjab Government deleted the provision by which out of turn promotions were granted to the civil servants. The view propounded by this Court in the case of Muhammad Nadeem Arif, was endorsed by this Court in another judgment dated 02.03.2011 in C.P.No.657-K/2010, of which one of us (Amir Hani Muslim,J) was a member, and reported as Ghulam Shabbir vs. Muhammad Munir Abbasi and others (2011 PLC (C.S) 763, where this Court has held that out of turn promotion was not only against the Constitution, but against the Injunctions of Islam. Reward or award should be encouraged for meritorious public service but should not be made basis for out of turn promotion. 152. Additionally we have noticed that Sections 23-A and 23-B were inserted by amending the Act of 1973 by Ordinance XXXV of 2002 on Crl.Org.P.No.89/11 etc. 117 12.10.2002. By impugned instruments, Sections 23-A and 23-B were introduced without substituting the previous Sections 23-A and 23-B, which shows unwarranted haste on the part of the legislatures. 153. On examining the language of impugned legislative instruments, we are of the view that Section 9A of the Act of 1973, introduced by the Ordinance in 2002 is largely a police specific class, which caters regularization of out of turn promotions made under Section 9A of the Act. In the past this section 9A has caused heart burning and ill will amongst the police officers both at individual and collective levels as it vested excessive and abusive discretionary powers in the Provincial Authorities to indulge in favoritism and gross nepotism, which is another germinated culture of patronage and politicization in the Sindh police. 154. Indeed out of turn promotion has become a vehicle of accelerated progression for a large number of favorite officers using various measures and means. A large number of favorite police officers were conferred out of turn promotions under Section 9A of the Act of 1973. This Court repeatedly disapproved the culture of patronage creeping in the Sindh police by abuse of authority which has gravely eroded efficiency, morale and image of the police officers. In the recent order of this Court in the case of Suo Moto No.16/2011, this Court has observed as under:- “It is also a hard fact that the police has been politicized by out of turn promotions and inductions from other departments time and again, through lateral entries which has brought unrest amongst the deserving police officers waiting their promotions on merits. The posting and transfers of the police officers also lack merits. The complete service record of a police personnel which could reflect posting and transfer is not maintained by the relevant wing. Even many police officers posted within the Karachi on senior positions lack qualifications and competence Crl.Org.P.No.89/11 etc. 118 both……If this is the state of affairs, how can there be peace in Karachi. It seems instead of depoliticizing police force further damage has been caused by the government by introducing their blue eyed persons in police force through lateral entries and then granting them retrospective seniority and out of turn promotions.” 155. In the case of Watan Party and another vs. Federation of Pakistan and others (PLD 2011 S.C 997), this Court has made observations with the directions that “further observe that to come out of instant grave situation of law and order in Karachi, police force being principal law enforcing agency has to be de-politicized and strengthened so that they could, with full commitment, dedication, zeal and zest perform its bounden duty, and unless there is a de-politicized police, the situation of law and order is likely to become more aggravated, no sooner the assistance of Rangers is withdrawn.” 156. However, instead of effecting reforms, the Authorities have resorted to employing legislative means to impose executive will, which has nurtured a culture of patronage protecting interest of influential group of blue-eyed persons. By the impugned legislative instruments unbridled discretionary powers were conferred on the Authorities to protect culture of favoritism and nepotism that has prevailed for many years particularly in Sindh Police if not other services. That last impugned legislative instrument which is Act XXIV of 2013 was passed hours before the Provincial Government was to complete its term and without much debate or discussion in the Assembly which signifies the haste to protect specific class of officials/individuals by regularizing their ex-cadre and out of turn promotions, which have deprived the rights of other meritorious and Crl.Org.P.No.89/11 etc. 119 deserving civil servants/officers. Through the impugned legislation under the grab of “act of gallantry” or “very exceptional performance beyond the call of duty”, the Chief Minister was vested with unrestrained power to grant out of turn promotion to any civil servant, whom he deemed fit and also to indemnify the existing beneficiaries of the said, or similar earlier provisions, regardless of merit or justification of being so rewarded. This section 9A benefits particular class of officials on seemingly political and other impermissible grounds. By the impugned legislation retrospective seniorities were given to a large number of influential officers causing injustice to the meritorious and deserving civil servants. Section 9A through the impugned Acts has extended protection to the selected beneficiaries, which is bound to generate rancor and disaffection amongst the civil servants/ police officers, who were appointed through competitive process and their seniority and smooth progress in career stands seriously abridged. 157. Unfortunately, the impugned Acts have bypassed the stipulation of Rule 8-B and provided a blanket cover to all out of turn promotions even to those which have been contested in the Courts for being granted in gross violation of rules and infringing the seniority of many deserving officers. 158. On the issue of out of turn promotions, the impugned enactments are discriminatory persons/class specific and pre-judicial to public interest, as it would be instrumental in causing heart burning amongst the police officers whose inter-se seniority and legitimate expectation of attaining upper ladder of career would be affected. The out of turn promotions to the police officers and other civil servants by virtue of Section 9A would affect the performance of hundreds of thousands of the civil Crl.Org.P.No.89/11 etc. 120 servants serving in the Sindh Government. The impugned instruments on out of turn promotions are neither based on intelligible differentia nor relatable to lawful objects and by the impugned instruments the entire service structure has been distorted, affecting the inter-se seniority between the persons, who are serving on cadre posts after acquiring job through competitive process and their seniorities were and are superseded by the powers granted to the Chief Minister through Section 9A. 159. On account of the promulgation of impugned legislative instruments, employees brought on contracts and or appointed or transferred on the basis of deputation were absorbed in the Sindh Government against the law declared by this Court and the Sindh High Court and thereafter they were granted out of turn promotions. The Sindh Government through the impugned legislation have conferred undue favour on a select group of undeserving and unmeritorious persons by way of deputation, posting, induction, out of turn promotion, ante-dated seniority, re-hiring. The impugned legislation protects and promotes the interests of select group of officers/ individuals to the disadvantage of hundreds of thousands of civil servants, depriving them of the equal protection of law under Articles 4 and 25 of the Constitution. 160. The impugned legislative instruments are violative of Article 143 of the Constitution. Article 240 of the Constitution provides for service structure of civil servants. It refers (i) Federal Service (ii) Provincial Service (iii) All Pakistan Service. The last category of service, among others, can be exemplified by All Pakistan Unified Group. The provincial civil servants join All Pakistan Unified Group or Police Service of Pakistan in accordance Crl.Org.P.No.89/11 etc. 121 with their provincial quota when they acquire BS-19. They retain their original inter-se seniority with the provincial cadre, but they also compete, within the given federal quota, for their promotions to the higher grades i.e BS-20 and above. This policy of encadrement is regulated by the Esta Code. These guidelines/ instructions are applicable to all the Federal civil servants including those joining the All Pakistan United Group/Police Service of Pakistan on their provincial quota. By the impugned instruments, the civil servants have been granted out of turn promotion with backdated seniority. 161. Therefore, it is important to ensure that both provincial and federal laws should be complementary rather than conflicting, or else the smooth progression from the provincial service to the All Pakistan Unified Group/P.S.P would become impossible and there would be an administrative chaos caused by conflicting laws and a myriad of litigation. The ultimate casualty of the impugned instruments would not only be the establishment of meritocratic public service but more ominously the certainty of law which undermines both legitimate expectancy individually among the civil servants as regards the smooth progression of their career, but also the overall administrative environment. Article 143 of the Constitution has been promulgated to harmonize and regulate the service of the civil servants from federal government and provincial governments on their opting for All Pakistan Unified Group/PSP. The impugned legislation would distort inter- se seniority of the civil servants not only within the province but also the federal civil servants. 162. The absorption and out of turn promotion under the impugned legislative instruments will also impinge on the self respect and dignity of Crl.Org.P.No.89/11 etc. 122 the civil servants, who will be forced to work under their rapidly and unduly promoted fellow officers, and under those who have been inducted from other services/cadres regardless of their (inductees) merit and results in the competitive exams (if they have appeared for exam at all) and as a result the genuine/bonafide civil servants will have prospects of their smooth progression and attainment of climax of careers hampered, hence the impugned instruments are violative of Article 14 of the Constitution. The laws are made to achieve lawful object. The impugned legislative instruments do not advance this concept while conferring powers on the Chief Minister to grant out of turn promotions, on the contrary the unstructured discretion vested in him has infringed the valuable rights of the meritorious civil servants of legitimate expectancy of attaining climax of careers. 163. In order to discover the intent and wisdom behind the impugned legislation, we required the Additional Advocate General to place before us the debates of Assembly during the passage of the Bills. Such record was placed before us. After perusal of the record, we found that the Bills/proposed laws were not sent to the Standing Committee. No debate had taken place on the proposed laws which had far reaching effect on the rights of the civil servants. One of the impugned Acts contained statement of objects and reasons for promulgating the impugned legislation, which is reproduced here-under:- “The law enforcement personnel of Sindh Police in the past have risked their lives and exhibited exceptional acts of gallantry in the line of duty. Therefore, in order to retain the morale of the Force, it is expedient to make certain amendments in the Sindh Civil Servants Act, 1973. Crl.Org.P.No.89/11 etc. 123 The Bill seeks to achieve the above object.” 164. We support that morale of police personnel be boosted, as intended in the aforesaid impugned legislations, and on their exhibiting exceptional acts of gallantry, they should be given awards and rewards on merits. In order to confer award or reward on the police officer for his act of gallantry the Sind Government will constitute a committee under Rule 8-B, to evaluate the performance of the police officer upon whom the proposed award or reward has to be bestowed. However, out of turn promotion in police force would not boost the morale of the police force, on the contrary by impugned legislative instruments granting out of turn promotion to police officers, has demoralized the force. This Court in the case of Watan Party reported in (PLD 2011 SC 997) has already directed the Sindh Government to depoliticize the police force. The out of turn promotions have engendered inequalities and rancor among the batch mates/course mates, rendering many of them junior/subordinate to their junior colleagues. Under section 9A, the Sindh Government, has granted out of turn promotions to the civil servants, who do not belong to police force. By using the word ‘Gallantry’ in section 9-A of the Act of 1973, the legislature never intended to grant out of turn promotion to civil servants other than police force, but the Sindh Government has extended this benefit to civil servants. We for the aforesaid reasons stated hereinabove, are clear in our mind that the impugned legislations on the issue of out of turn promotion and grant of backdated seniority are violative of Articles of the Constitution referred to hereinabove and are liable to be struck down. Crl.Org.P.No.89/11 etc. 124 WHETHER THE IMPUGNED INSTRUMENTS HAVE NULLIFIED THE EFFECT OF THE JUDGMENTS OF THIS COURT AND THE SINDH HIGH COURT. 165. The leading judgment on the subject issue, which our Courts have approvingly referred to the case of Indira Nehru Gandhi vs. Raj Narain (AIR 1975 S.C 2299) which relates to amendment in the Election Laws of India. In the said judgment Paras 190 and 191 are important and reproduced here-under:- “190. A declaration that an order made by a court of law is void is normally part of the judicial function and is not a legislative function. Although there is in the Constitution of India no rigid separation of powers, by and large the spheres of judicial function and legislative function have been demarcated and it is not permissible for the legislature to encroach upon the judicial sphere. It has accordingly been held that a legislature while it is entitled to change with retrospective effect the law which formed the basis of the judicial decision, it is not permissible to the legislature to declare the judgment of the court to be void or not binding (see Shri Prithvi Cotton Mills Ltd. V. Broach Borough Municipality, (1970) I SCR 388 (at page 392) = (AIR 1970 SC 192 Janapada Sabha, Chhindwara v. The Central Provinces Syndicate Ltd., (1970 3 SCR 745 (at page 751) = (AIR 1971 SC 57) Municipal Corporation of the City of Ahmedabad etc. v. New Shorock Spg. & Wvg. Col. Ltd. Etc (1971) I SCR 288 = (AIR 1970 SC 1292) and State of Tamil Nadu v. M. Rayappa Gounder, AIR 1971 SC 231). 191. The position is it prevails in the United States, where guarantee of due process of law is in operation, is given on pages 318-19 of Vol. 46 of the American Jurisprudence 2d as under: “The general rule is that the legislature may not destroy, annual, set aside, vacate, reverse, modify, or impair the final judgment of a court Crl.Org.P.No.89/11 etc. 125 of competent jurisdiction, so as to take away private rights which have become vested by the judgment. A statute attempting to do so has been held unconstitutional as an attempt on the part of the legislature to exercise judicial power, and as to violation of the constitutional guarantee of due process of law. The legislature is not only prohibited from reopening cases previously decided by the Courts, but is also forbidden to affect the inherent attributes of a judgment. That the statute is under the guise of an act affecting remedies does not alter the rule. It is worthy of notice, however, that there are cases in which judgments requiring acts to be done in the future may validly be affected by subsequent legislation making illegal that which the judgment found to be legal, or making legal that which the judgment found to be illegal. 10.--- Judgment as to public right. With respect to legislative interference with a judgment, a distinction has been made between public and private rights under which distinction a statute may be valid even though it renders ineffective a judgment concerning a public right. Even after a public right has been established by the judgment of the court, it may be annulled by subsequent legislation.” 166. This Court in the case of Fecto Belarus Tractor Ltd. vs. Government of Pakistan through Finance Economic Affairs and others (PLD 2005 S.C 605) has held that when a legislature intends to validate the tax declared by a Court to be illegally collected under an individual law, the cause for ineffectiveness or invalidity must be removed before the validation can be said to have taken place effectively. It will not be sufficient merely to Crl.Org.P.No.89/11 etc. 126 pronounce in the statute by means of a non-obstante clause that the decision of the Court shall not bind the authorities, because that will amount to reversing a judicial decision rendered in exercise of the judicial power which is not within the domain of the legislature. It is therefore necessary that the conditions on which the decision of the Court intended to be avoided is based, must be altered so fundamentally, that the decision would not any longer be applicable to the altered circumstances. One of the accepted modes of achieving this object by the legislature is to re-enact retrospectively a valid and legal taxing provision, and adopting the fiction to make the tax already collected to stand under the re-enacted law. The legislature can even give its own meaning and interpretation of the law under which the tax was collected and by “legislative fiat” make the new meaning binding upon Courts. It is in one of these ways that the legislature can neutralize the effect of the earlier decision of the Court. The legislature has, within the bounds of the Constitutional limitations, the power to make such a law and give it retrospective effect so as to bind even past transactions. In ultimate analysis, therefore, the primary test of validating piece of legislation is whether the new provision removes the defect which the Court had found in the existing law and whether adequate provisions in the validating law for a valid imposition of tax were made. 167. In order to nullify the judgment of the Court, unless basis for judgment in favour of a party is not removed, it could not affect the rights of a party in whose favour the same was passed. The issue of effect of nullification of judgment has already been discussed in the case of Mobashir Hassan reported in (PLD 2010 S.C 265), Para-76 discusses the effect of Crl.Org.P.No.89/11 etc. 127 nullification of a judgment by means of a legislation. In the said case, the view formed is identical to the one in the case of Indira Nehru Gandhi vs. Raj Narain (AIR 1975 S.C 2299) and Fecto Belarus Tractor Ltd. vs. Government of Pakistan through Finance Economic Affairs and others (PLD 2005 S.C 605) and it was observed that legislature cannot nullify the effect of the judgment and there are certain limitations placed on its powers including the one i.e. by amending the law with retrospective effect on the basis of which the order or judgment has been passed thereby removing basis of the decision. In other words, the arguments of the learned AAG, Dr. Farough Naseem and Mr.Anwar Mansoor Khan that the legislature has the power to nullify the effect of judgment on the facts in the present case are without force. 168. In the case in hand the Provincial Assembly has validated/ regularized the absorptions and out of turn promotions by the Ordinance of 2011, Act XVII of 2011 and Act XXIV of 2013 without providing mechanism by which the absorptions and out of turn promotions with backdated seniority were given to the employees. The judgments on the issue of absorption were clear and in fact through impugned instruments, the Assembly validated the absorptions/out of turn promotions without noticing that while granting concessions to few blue-eyed persons, rights of all the civil servants guaranteed under the Constitution and Civil Servant Act were impaired. In fact the impugned instruments are in the nature of legislative judgment as they purport to take away jurisdiction of the Superior Courts to abridge the writ and legality of the provisions by which Sindh Government has conferred undue favours on a select group of undeserving persons by Crl.Org.P.No.89/11 etc. 128 way of deputation, posting, absorption out of turn promotions, ante-date seniority and re-hiring, hence they are violative of Article 175 of the Constitution. It goes without saying that a repugnancy to the Constitution declared by this Court or a High Court cannot be validated or condoned by a legislature unless the Constitution is itself amended. 169. We have also noticed that the amendments brought in by the impugned legislation are not in conformity with the principles defining parameters of ‘amendments’ brought in a statute. “Amendment” has been defined by Earl T. Crawford in the book authored by him titled as “The Construction of Statutes”. While defining the “Amendment”, he has referred to different books and case law developed by the Courts of United Kingdom and America that “A law is amended when it is in whole or in part permitted to remain and something is added to, or taken from it, or it is in some way changed or altered in order to make it more complete or perfect or effective”. 170. The amendments made in the Act of 1973 through the impugned legislations have in fact changed the structure of the Act by introducing power (unrestrained discretion in the Chief Minister) which runs parallel to the Civil Servants Act and the recruitment rules framed thereunder. The amendment must meet the requirements of an original Statute. Since amendatory acts, strictly speaking, are not new laws but continuations of the old, the old act must be adequately identified. If the principles set forthwith hereinabove are applied to the impugned instruments then it can easily be concluded that virtually a parallel civil service system has been brought into existence which the provincial legislature is not Crl.Org.P.No.89/11 etc. 129 competent to do so, whereas Article 242 of the Constitution provides a uniform method of induction/recruitment to the services of the Federation and the Provinces by establishing Federal or Provincial Service Commissions through Federal and Provincial legislature. 171. The contention of the learned Additional Advocate General is that defects/anomalies observed by the Courts in their judgments were cured/ removed by promulgating these legislative instruments. The material placed before us does not support the contention of the learned Additional Advocate General. In fact, we have noticed that some of the applicants before us were inducted on deputation in the Sindh Government. After the judgment of the Sindh High Court in C.P.No.1491 of 2010, they alongwith many other deputationists were ordered to be repatriated to their parent departments on 14.12.2010. The judgment of the Sindh High Court was appealed against by some of the deputationists and on 1.1.2011, leave was refused by this Court affirming the judgment of the Sindh High Court. Inspite of the directives of this Court and the Sindh High Court, the deputationists, in connivance with the Sindh Government, had obtained interim orders from the Sindh High Court by filing constitutional petitions. Upon intervention by this Court, the petitions filed by the deputationists were withdrawn and they were relieved on 2.5.2012, under the orders of this Court. In the intervening period and thereafter, these validation Acts were promulgated to defeat the orders of this Court and the Sindh High Court, which provided unwarranted protection to the unmeritorious and undeserving persons, who were absorbed by the Sindh Government in defiance of the orders of the Courts. Crl.Org.P.No.89/11 etc. 130 172. The contention of the learned Advocate General that the Provincial Assembly has absolute powers to promulgate law which may nullify the effect of a judgment is misconceived, as a general rule the legislature cannot destroy, annul, set aside, vacate, reverse, modify or impair a final judgment of a court of competent jurisdiction, nor fundamental rights guaranteed under the Constitution can be abridged by the legislature. The legislature is not only prohibited from reopening cases previously decided by the courts, but is also forbidden to affect the inherent attributes of a judgment through a piece of legislation as has been done in the case in hand. In ultimate analysis, therefore, the primary test for examining the vires of an instrument (validating) is whether the new provision removes the defect, which the court had found in the existing law and whether adequate provisions in the validating law have been introduced to the terms ‘absorption’, ‘out of turn promotion’, ‘re-employment and ‘deputation’. We have already discussed hereinabove, the aforesaid terms, used in the impugned legislative instruments and have been interpreted by the courts prior to coming into field the impugned legislations. After examining the impugned legislations, we are of the considered view that these instruments cannot be construed to have nullified the effect of the judgments discussed hereinabove, as the instruments sought to be challenged, in fact, encourages nepotism and discourages transparent process of appointments of civil servants by recruitment and or by transfer in all the three modes provided by the Act of 1973 and the rules framed there-under. This court in fiscal matters has applied restraints from interfering in the legislative domain while examining the vires of a statute, but in the case in hand, the impugned Crl.Org.P.No.89/11 etc. 131 legislations through amendments and validation/regularization have hampered the fundamental rights of the civil servants with the sole object to extend favours to few blue-eyed of the government. 173. We, therefore, are clear in our mind that amendments brought in the Act of 1973 by the impugned validating instruments do not meet the standards of jurisprudence which mandate safeguard provided to the civil servants under the Constitution. The impugned legislative instruments, therefore, do not have the effect to neutralize or nullify the judgments of the Courts referred to hereinabove. PRINCIPLE OF LOCUS POENITENTIAE 174. Locus poenitentiae is the power of receding till a decisive step is taken but it is not a principle of law that order once passed becomes irrevocable and past and closed transaction. If the order is illegal then perpetual rights cannot be gained on the basis of an illegal order. In the present case, the benefits extended to different employees or civil servants through the impugned legislations are not only violative of law but are also ultra vires of the Constitution referred hereinabove. In such like situation the principle of locus poenitentiae does not attract and in this regard this Court in the cases of Muhammad Nadeem Arif and others vs. Inspector General of Police, Punjab, Lahore and others (2010 PLC (C.S) 924) and The Engineer- in-Chief Branch through Ministry of Defence, Rawalpindi and another vs. Jalaluddin (PLD 1992 S.C 207) has held that principle of locus poenitentiae would not be attracted in a case under which the benefit has been extended by a law, which is violative of the provisions of the Constitution. Crl.Org.P.No.89/11 etc. 132 175. For the aforesaid reasons we allow Constitution Petitions.No.71/2011, 23-K/2012, 21/2013 and 24 of 2013, and dispose of all the Misc. Applications and hold that the impugned legislations mentioned in para 115 are violative of the provisions of the Constitution discussed hereinabove. We further hold and declare that benefit of ‘absorptions’ extended by the Sindh Government since 1994, with or without backdated seniority, are declared ultra vires of the Constitution, as the learned Additional Advocate General has made a statement during hearing that the impugned validation instruments have granted legal cover to the employees/civil servants, who were absorbed since 1994. Likewise, we further hold and declare that all out of turn promotions made under section 9-A of the Sindh Civil Servants Act, 1973, by the Sindh Government to an employee or civil servant with or without backdated seniority since 22.1.2002, when section 9-A was inserted through Ordinance IV of 2002, are ultra vires of the Constitution. All Misc. Applications made by the absorbees in which interim orders were passed by this Court restraining the Government from complying with the orders of this Court dated 02.05.2012 stand vacated. We also hold that all the re-employment/rehiring of the retired Civil/Government Servants under the impugned instruments being violative of the constitution are declared nullity. We further direct that the nominations made by the Chief Minister in excess of the quota given by Rule 5(4) (b) of the West Pakistan Civil Service (Executive Branch) Rules, 1964, are without lawful authority and all the 15 nominees (Assistant Commissioners) are reverted to their original positions. Crl.Org.P.No.89/11 etc. 133 176. For the aforesaid reasons, Civil Petition No.6-K of 2011 filed by Inayatullah Marwat is dismissed. Civil Appeals No.98 of 2010, 100-K of 2010 and 131-K of 2010 filed by Government of Sindh are allowed and impugned judgments of the Sindh Service Tribunal dated 23.2.1010, 22.3.2010 and 31.3.2010 passed in Appeals No.01 of 2009, 65 of 2009 and 94 of 2009 respectively are set aside. Civil Appeal No.12-K of 2012 filed by Dr. Nasimul Ghani Sahito and others against the absorption by Rule 5(4)(b) of the West Pakistan Civil Service (Execution Branch) Rule 1964 of S.M. Kaleem Makki is allowed and the respondent is directed to be absorbed in a non-cadre post. Civil Appeals No.183-K of 2011, 184-K of 2011 and 185-K of 2011 are also allowed and the impugned judgments dated 17.2.2011, 12.3.2011 passed by the Sindh Service Tribunal, Karachi in Appeals No.39, 40 and 46 of 2008 respectively are set aside. 177. Before parting with the judgment, we are surprised if not shocked to see that the Sindh High Court has entertained a Civil Suit No.102 of 2013 filed by Mirza Shahbaz Mughal relating to out of turn promotion, which is one of the issues pending adjudication before this Court. In this respect the background is that a Criminal Misc.Application No.278/2013 was filed by Syed Mehmood Akhtar Naqvi, in which he has given brief story of Shahbaz Mughal, who was appointed ASI on 29.01.1996 and promoted as Sub-Inspector on 17.12.2001 and was confirmed as Sub-Inspector on 18.12.2003. He was promoted as Inspector on 26.04.2004 on adhoc basis with the condition that he will not claim seniority over his seniors and will retain his original position in the promotion list and his promotion will be regularized on his turn alongwith his batch mates vide order dated Crl.Org.P.No.89/11 etc. 134 18.02.2009. However, he was promoted out of turn on adhoc basis as DSP in his own pay and scale. An application was made to the Chief Minister by his mother and his seniority was fixed and regularized on 01.04.2011. On the intervention of this Court on 03.09.2012 out of turn promotion granted to him along with Hamid Ali Bhurgari and Abdul Jabbar Khan and their inter- se seniorities were revised and he was reverted to his original rank of Sub- Inspector. 178. Thereafter Mirza Shahbaz Mughal was appointed by the Sindh Government as D.S.P along with 9 others bypassing recruitment rules and a complaint in the nature of an application was made before this Court. Comments were called and the Assistant AIG (Legal) informed the Court that Mirza Shahbaz Mughal along with 09 DSPs, was de-notified. After this Court reserved the judgment, we were informed that Notification denotifying Mirza Shahbaz Mughal as DSP was suspended by the Sindh High Court. The relevant R&Ps was called through the Registrar of the Sind High Court and it was noticed that Suit bearing No.102/2013 challenging his reversion to the rank of Sub-Inspector against the Sindh Government, Inspector General of Police and the Home Department with the following prayers:- PRAYER It is, therefore, prayed that this Hon’ble Court may be pleased to pass judgment and decree in favour of the Plaintiff as under: A. Declare that the Notification dated 13-1-2012 issued by Defendant No.1 withdrawing the name of the Plaintiff from the Notification dated 3-09-2012 is in accordance with law. B. Declare that the Impugned Letter dated 28-1-2012 issued by the Defendant No.2 is illegal, mala fide, without Crl.Org.P.No.89/11 etc. 135 jurisdiction, unwarranted in law and fact as well as in violation of principles of Natural Justice. C. Suspend the Impugned Letter dated 28-1-2012 issued by the Defendant No.2. D. Grant permanent Injunction prohibiting / restraining the Defendants, their employees or any person acting under them or on their behalf from taking any coercive action against the Plaintiff in pursuant to Impugned Letter dated 28-1-2013. E. Grant permanent Injunction prohibiting / restraining the Defendants, their employees or any person acting under them or on their behalf from withdrawing Notification dated 13-1-2013. F. Grant any other relief deemed just and appropriate in the circumstances of the case. G. Grant costs of the suit. 179. Along with the suit, an injunction was sought and the learned Single Judge (in Chambers) on 01.02.2013 issued notice of the injunction application and in response on 04.02.2013 Ms. Naheed Naz Advocate for A.G Sindh appeared and sought time to file counter affidavit and Court while adjourning the matter ordered status-quo. The order dated 04.02.2013 is reproduced herein below:- “04.02.2013. Mr. Muhammad Haseeb Jamali, Advocate for the plaintiff Ms. Naheed Naz, Advocate for A.G. Sindh ________ Notice of CMA No.940/2013 was issued to the defendants. In response thereto Ms. Naheed Naz, Advocate appears and seeks time to file counter-affidavit. Parties may exchange their counter-affidavit and rejoinder if any, prior to the next date of hearing. To come up on 12.02.2013. Till next date of hearing both parties to maintain status-quo. Sd/- Judge” Crl.Org.P.No.89/11 etc. 136 180. It is interesting to observe that on perusal of the R&Ps we have noticed that a copy of the order of this Court dated 03.09.2012 passed in Civil Appeal No.131-K of 2010 and others was also filed alongwith the plaint. In the said order the statement of the Advocate General was recorded that notification of his reversion to the rank of Sub-Inspector will be issued. Para-2 of the order of this Court annexed with plaint was made illegible. In any event, the issue of out of turn promotions was alive before this Court and the order of this Court which was annexed along with plaint refers to it. After grant of status-quo in the suit, no counter affidavit was filed by the Advocate General office. On 8.5.2013, a notification by which Mirza Shahbaz Mughal was denotified as DSP was produced before this Court by the Additional Advocate General Sind along with Mr. Ali Sher Jakhrani AIG Legal at Islamabad, without disclosing the pendency of suit or of interim orders passed therein. Mirza Shahbaz Mughal, on issuance of aforesaid notification, appears to have approached the Sindh High Court by filing CMA in the said suit and on 16.05.2013, the Notification by which he was de-notified as DSP was suspended and contempt notice was issued to the Additional Chief Secretary for issuance of the Notification. Order dated 16.05.2013 is reproduced herein below:- “16.05.2013 Mr. M. Haseeb Jamali Advocate for the Plaintiff. .-.-.-.-.-.-.-.-. 1) Urgent application is granted. 2) Issue notice to the alleged contemnor. 3) Learned Counsel for the Plaintiff contends that on 04.02.2013 order to maintain status-quo was passed by this Court in the present suit. Learned Counsel for the Plaintiff Crl.Org.P.No.89/11 etc. 137 submits that in violation of the order passed by this Court alleged contemnor/Additional Chief Secretary on 07.05.2013 issued Notification No.POL-HD/8-15/2012 and has withdrawn the earlier notification with immediate effect. Learned counsel for the Plaintiff further submits that the case of the Plaintiff does not fall to the officers who were given out of turn promotion and his case is of fresh appointment. Issue notice to the Defendants for 30.05.2013. Till next date of hearing operation of Notification No.POL- HD/8-15/2012 dated 07.05.2013, issued by the alleged contemnor when the status-quo is operating, is suspended. sd/- JUDGE” 181. In fact, order of the nature has disturbed us and in such like situation earlier this Court has passed orders when the Sindh High Court entertained Constitutional Petitions and suspended Notifications of the Sind Government which were issued under the directives of this Court. AG office has also failed to discharge its duties by not bringing the real facts to the notice of the Sind High Court, which has resulted in suspension of the Notification. In any event the proceedings in Suit will be regulated by the findings in these proceedings. 182. We also record appreciation for the assistance provided by the learned Additional Advocate General, Ch. Afrasiab Dr. Farough Naseem, Mr. Anwar Mansoor Khan, Mr. Yawar Farooqui and Mr. M.M.Aqil Awan during the proceedings. 183. A copy of this judgment be sent to the Chief Justice, Sindh High Court through Registrar for circulating it amongst the learned Judges. A copy of this judgment be also sent to all the Chief Secretaries of the Provinces as well as the Secretary, Establishment Division, Government of Pakistan, Islamabad, with the direction to streamline the service structure of Crl.Org.P.No.89/11 etc. 138 civil servants in line with the principles laid down in this judgment. The Chief Secretary and Secretary, Services, Sindh, are further required to comply with this judgment in letter and spirit and report compliance within three weeks. J. J. J. Announced in Open Court on ____________ J APPROVED FOR REPORTING. Crl.Org.P.No.89/11 etc. 139 Asif Saeed Khan Khosa, J.: It is true that the judicial precedent available thus far declares that mala fide cannot be attributed to the legislature but if a legislature deliberately and repeatedly embarks upon a venture to nullify considered judicial verdicts in an unlawful manner, trample the constitutional mandate and violate the law in the manner it was done in the present case then it is difficult to attribute bona fide to it either. Judge

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: Mr. Justice Iftikhar Muhammad Chaudhry, HCJ. Mr. Justice Jawwad S. Khawaja Mr. Justice Sh. Azmat Saeed Criminal Original Petition No.92 of 2013 (Contempt proceeding against Imran Khan, Chairman PTI) On Court’s Notice: Mr. Muneer A. Malik, Attorney General for Pakistan For alleged contemnor: Mr. Hamid Khan, Sr. ASC Mr. M.S. Khattak, AOR with Imran Khan Date of hearing: 02.08.2013 O R D E R Iftikhar Muhammad Chaudhry, CJ.— Mr. Hamid Khan, Sr. ASC has placed on record two documents in the form of explanations, and he reserved his right to file detailed reply of the notice if need be. Contents of the said explanations are reproduced hereinbelow for reference:- “EXPLANATION No. 1: 1. THAT Imran Khan has neither committed contempt of court under the law or the Constitution nor would even think of doing so. 2. That Imran Khan has not started any campaign either to scandalize the Court or to bring judges into hatred, ridicule or contempt. On the contrary, he has always struggled to uphold dignity and independence of the Supreme Court and the judiciary in general. 3. That Imran Khan believes in the rule of law, supremacy of the Constitution and independence of judiciary and, for this reason, he and his party was in the forefront of the movement for rule of law and restoration of judiciary. 4. That, after the general elections, Imran Khan has repeatedly requested and appealed to the Supreme Court Crl. O.P. No.92/2013 2 to redress the grievance of his party which has suffered massive electoral rigging at the hands of ECP and its officials. This clearly establishes that Imran Khan and his party have high expectations from the Supreme Court that justice would be done to them and that their grievance would be redressed. 5. It is respectfully submitted that the notice may kindly be recalled.” “EXPLANATION No. 2: Respectfully Submitted 1. That the press statement was made in good faith on 26th July, 2013 where in reference to the ‘Judiciary’ was for the Returning Officers and/or District Returning Officers (belonging to the Subordinate Judiciary), assigned to the election process. 2. That Mr. Imran Khan has high respect and esteem for the Supreme Court of Pakistan and has high expectations from this Honourable Court for redressal of the grievances of the PTI arising out of the general elections.” 2. We have drawn his attention towards one of the press clippings (Press Conference of Imran Khan dated 26.07.2013) which is reproduced hereinbelow:- Crl. O.P. No.92/2013 3 3. Selection of the words used against judiciary, Mr. Hamid Khan argued, is in a different context, for which explanation has been given and he has pointed out the same verbally. 4. it was pointed out to him that the Judiciary (ہﯿﻟﺪﻋ ) is required to be respected and if there is any grievance, the remedy is available under the law, but using the words “کﺎﻨﻣﺮﺷ “, prima facie, tantamounts to abusing the Judiciary. The Courts try their best to avoid asserting itself in such like situation but are compelled to look into a matter where not only the dignity or respect of a Judge but of the entire Institution is involved, and the Courts are constrained to call for an explanation. The explanations noted above have been examined carefully and are hereby rejected not being satisfactory. 5. Learned counsel has pointed out his grievance in respect of an application which was filed in C.R.P. No.191/2012 in Constitution Petition No.87/2011 (Workers Party Pakistan v. Federation of Pakistan etc.) as far back as 08.06.2013. He further stated that the grievance of the Chairman PTI was that his application is not being disposed of. We have pointed out to him that perhaps the correct facts have not been brought into his notice as this application was returned by the office on the same day by passing the following order:- “That the above titled C.M.A. filed by you is not entertainable on the ground that instead of making this Crl. O.P. No.92/2013 4 application in a pending Review Petition the applicant should approach the appropriate forum and avail the proper remedy available under the law, if so advised. Hence this C.M.A. in C.R.P. 191/2012 in Constitution Petition No.87/2011 is returned herewith in original being not entertainable along with its paper books.” 6. Against the order of the Institution Officer who exercises delegated powers of the Registrar of this Court, a Civil Miscellaneous Appeal No.82/2013 was filed under Order V rule 3 of the Supreme Court Rules, 1980 and thereafter no request has been made for fixation of the case either by the Senior ASC or his AOR. The cases are fixed in the Supreme Court under policy guidelines and wherever there is any sort of urgency, a request is to be made for out of turn fixation of the case, otherwise out of total pendency, which is about 19,000 cases; it is not possible to fix all the cases and dispose them of on the same day. However, by following procedure under Supreme Court Rules, 1980 on an urgent application such appeals could possibly be heard. 7. In addition to the above, learned counsel has been appraised about 31 Election Petitions under section 52 of the Representation of People Act, 1976 filed by the candidates of Pakistan Tehreek-e-Insaf (PTI) before Election Tribunals requesting for, inter alia, examining the thumb impressions of the voters through the process of biometric system, particularly, in respect of the following four constituencies:- Crl. O.P. No.92/2013 5 S# Constituency No. Election Petition No. Title of the case 1. NA 122 Lahore-V No.11(315)/2013 (Imran Khan Niazi vs. Sardar Ayaz Sadiq and others) 2 NA-125 Lahore VIII No.11(194)/2013 (Hamid Khan vs. Khawaja Saad Rafiqu and others) 3. NA-110 Sialkot-I No.11(344)/2013 (Usman Dar vs. Khawaja Muhammad Asif and others) 4. NA 154 Lodhran-I No.11(355)/2013 (Jehangir Khan Tareen vs. Muhammad Siddique Khan Baloch and others) 7. Learned counsel requests for time to file reply of notice. Adjourned to 28.08.2013. Chief Justice Judge Judge Islamabad, the 2nd August, 2013 Nisar/*

SUPREME COURT OF PAKISTAN (Original Jurisdiction) Present : Mr. Justice Gulzar Ahmed Mr. Justice Sardar Tariq Masood Mr. Justice Faisal Arab Criminal Original Petition No.09 of 2018 {Suo Moto Contempt Proceedings initiated against Mr. Talal Chaudhry, State Minster on account of derogatory and contemptuous speeches/statements at public gathering in respect of this Hon’ble Court telecasted by different T.V. Channels} For the alleged Contemnor : Mr. Kamran Murtaza, Sr. ASC Syed Rifaqat Hussain Shah, AOR For the State : Ch. Aamir Rehman, Additional A.G. assisted by Barrister Asad Rahim Khan Date of hearing : 11.07.2018. O R D E R Gulzar Ahmed, J.:- On 01.02.2018, the Registrar of this Court had put up a note to the Hon’ble Chief Justice of Pakistan, the contents of the note are as follows:- “PUC are press clippings dated 13.09.2017, 14.01.2018, 20.01.2018 whereby statements were reported and transcripts of speeches at public gathering dated 24.01.2018 & 27.01.2018 telecast by different TV channels pertaining to Mr. Talal Chaudhry, State Minster. The statements are contemptuous and derogatory in respect of this Hon’ble Court with special reference to the decision of this Court dated 28.07.2017 passed in Constitution Petition 29/2016 etc. The words used constitute interference with and obstruction of the process of the Court as well as aimed at belittling the stature of the Apex Court. It is prima facie Contempt of Court in terms of Article 204 of the Constitution of Islamic Republic of Pakistan read with Section 3 of the Contempt of Court Ordinance, 2003. Note is submitted to the Hon’ble Chief Justice of Pakistan for appropriate orders please.” Crl.Org.P.No.09 of 2018 2 On the same day, the Hon’ble Chief Justice of Pakistan passed the following order on this note: “Besides the above referred statements and material on account of many other statements, speeches of the above named, which should be collected by the Registrar of this Court in due course. Suo Moto Proceeding in Contempt of the Court on account of the noted Article of the Constitution and Section 3 of the Contempt of Court Ordinance 2003 are initiated against Mr. Talal Ch and the matter be listed for hearing on 6th Feb 2018 before a Bench headed by my brother Ejaz Afzal Khan. After notice to the Mr. Talal ch.” 2. Subsequently, notice dated 01.02.2018, under Article 204 of the Constitution of Islamic Republic of Pakistan, 1973 read with Section 3 of Contempt of Court Ordinance, 2003 was issued to the alleged contemnor namely Talal Chaudhry for his appearance on 06.02.2018. He appeared in Court on 06.02.2018, when the Court examined the transcript of speeches made by the alleged contemnor on 24.01.2018 and 27.01.2018 and prima facie found the case to be the one of initiation of criminal proceedings under Article 204 of the Constitution of Islamic Republic of Pakistan 1973 read with section 5 of the Contempt of Court Ordinance, 2003 and it was ordered that show cause notice be issued to the alleged contemnor for proceedings as such and case was posted on 13.02.2018. Pursuant to this order, show cause notice dated 10.02.2018 was issued to the alleged contemnor. On 13.02.2018, the alleged contemnor himself appeared before the Court and requested for time to engage a counsel. The matter was adjourned to 19.02.2018. On 19.02.2018, Mr. Kamran Murtaza, Sr. ASC appeared for alleged contemnor and requested for time to furnish reply to show cause notice. The case was adjourned to 26.02.2018. On 22.02.2018, the alleged contemnor filed his preliminary reply, which was registered as Crl. M.A.No.265 of 2018. On 26.02.2018 the alleged contemnor himself appeared before the Court when the Court passed the order that the transcript containing contemptuous remarks has already been annexed with the paper book and allowed the alleged Crl.Org.P.No.09 of 2018 3 contemnor and his Sr. ASC to go through the same and matter was adjourned to 06.03.2018. On 06.03.2018, learned Sr. ASC for the alleged contemnor stated that he has gone through the transcript but has not been provided copy of Compact Disc (CD). Learned Additional Attorney General for Pakistan was directed to provide a copy of requisite CD to the learned Sr. ASC for alleged contemnor and matter was adjourned to 08.03.2018. On 08.03.2018, the Court examined the reply submitted by the alleged contemnor and ordered further proceedings under the Contempt of Court Ordinance 2003 read with Article 204 of the Constitution of Pakistan (herein after the Constitution) and listed the case for framing of charge on 14.03.2018. On request of counsel for alleged contemnor, the case was adjourned from 14th March 2018 to 15th March, 2018. On 15th March, 2018 charge was framed, which is as follows:- C H A R G E That you Mr. Talal Chaudhry made speeches on 24.01.2018 and 27.01.2018 wherein you by your words, gestures and tone not only defamed and scandalized the Court and its Judges but also tended to bring the Court and its Judges into hatred, ridicule and contempt, and thereby committed Contempt of Court within the meaning of Article 204(2) of the Constitution of the Islamic Republic of Pakistan read with Section 3 of the Contempt of Court Ordinance, 2003 (Ordinance V of 2003) punishable under Section 5 of the Ordinance of 2003 within the cognizance of this Court. We hereby direct that you be tried by this Court on the above said charge. 3. The alleged contemnor pleaded not guilty to the charge and both the Deputy Attorney General so also alleged contemnor were directed to submit list of witnesses within seven days and case was posted for 27.03.2018 for evidence of prosecution. 4. On 06.04.2018 prosecution examined PW-Haji Adam son of Haji Sahib Khan, Director General (Monitoring) Pakistan Electronic Media Regulatory Authority (PEMRA). In his examination-in-chief, this prosecution witness produced a letter, transcript and CD containing video clips as Exhs: P-1, P-2 and Crl.Org.P.No.09 of 2018 4 P-3. On the same date this prosecution witness was cross-examined by Mr. Kamran Murtaza, learned Sr. ASC for alleged contemnor and thereafter case was posted for recording the statement of alleged contemnor. On 21.05.2018 statement under section 342 Cr.P.C. of the alleged contemnor was recorded and he was also allowed time of one day to file list of defence witnesses. In his statement under section 342 Cr.P.C. the alleged contemnor denied to record his statement under section 340(2) Cr.P.C. The alleged contemnor on 24.05.2018 produced two defence witnesses. DW-I Asrar Ahmed Khan recorded his examination-in-chief and he was cross-examined by the learned Additional Attorney General for Pakistan. DW-2 Musaddiq Malik recorded his examination-in-chief and he was cross-examined by the learned Additional Attorney General for Pakistan. Muhammad Tahir, General Manager PEMRA was produced as DW-3 and he recorded his examination-in-chief on 21.06.2018. He was cross-examined by learned Additional Attorney General for Pakistan. On 28.06.2018 evidence of DW-4 Atta Muhammad and DW-5 Imtiaz Khan were recorded. Both these witnesses were cross-examined by learned Additional Attorney General for Pakistan. 5. After completion of evidence of the parties, the matter was posted for hearing of final arguments, which were heard on 11.07.2018 and judgment was reserved. 6. We have heard the submissions of learned counsel for the parties and have also gone through the record of the case. 7. Mr. Kamran Murtaza, learned Sr. ASC for the alleged contemnor has commenced the arguments in the first instance. In his very first submission, he has contended that the very proceeding of contempt was not initiated in terms of Article 204 of the Constitution. Elaborating on this argument, learned ASC has urged that Article 204 of the Constitution confers power on Supreme Court and High Court to punish for contempt of Court and that such power being vested in Court, the Hon’ble Chief Justice who has passed order dated 01.2.2018 on the Crl.Org.P.No.09 of 2018 5 note of the Registrar for initiating the contempt proceeding was not an order of Court which has to be of a bench of the Court and not of the Hon’ble Chief Justice alone. He also referred to Article 184(3) of the Constitution to show that even the suo moto jurisdiction cannot be exercised by the Hon’ble Chief Justice for that such power is also conferred on a bench of the Court. To support his above submission, learned Sr. ASC for the alleged contemnor has referred to the order passed by Justice Qazi Faez Essa, an Hon’ble Judge of this Court while sitting at Peshawar. 8. On the other hand, learned Additional Attorney General has opposed this submission and contended that not only Article 204 of the Constitution confers power on the Hon’ble Chief Justice to initiate contempt proceeding but such power is also available and specifically provided for in the contempt of Court Ordinance 2003 and so also under the Supreme Court Rules, 1980. So far this submission of the learned counsel for the parties is concerned, the same may not detain us for long. In this regard reference is made to the provision of Section 7 of the Contempt of Court Ordinance, 2003, where it provides for taking of Suo Motu action by the Court in the matter of Criminal Contempt. Similarly in case of personalize criticism a Judge has been empowered to take notice of the same and in the judicial contempt a Judge of a Court is competent to initiate proceeding relating to him and refer it to the Chief Justice who may hear the same personally or refer it to some other Judge. Similarly proceeding of civil contempt could also be initiated Suo Motu. Part-V Order XXVII of the Supreme Court Rules, 1980 deals with proceeding in relation to contempt of Court, Rule 7 of which provides that where the Contempt consists of words or acts of visible signs which tend to prejudice a party to a proceeding before the Court or tend to scandalize the Court or any Judge or otherwise tend to bring the Court or a Judge in relation to his office into hatred, ridicule or contempt, the matter shall, in the first instance, be placed before the Chief Justice Crl.Org.P.No.09 of 2018 6 and such Judges as the Chief Justice may nominate to consider the expediency or propriety of taking of action in the matter. 9. In the Suo Motu Case No.1 of 2007 (Manhandling of Hon’ble Mr. Justice Iftikhar Muhammad Chaudhry by Police) reported in PLD 2007 Supreme Court 688, the contempt proceedings were initiated on the basis of a note put up before the Acting Chief Justice. Further in the case of Azam Jan Zarkoon vs. The State (2000 P.Cr.L.J 1621), a judgment of the Division Bench of the Balochistan High Court, wherein also cognizance of commission of contempt was initially taken by the Chief Justice and it was held that after taking of such cognizance, the Chief Justice was required to place the matter before a Bench of the Court in terms of Section 8(5) of Contempt of Court Act, 1976. Similarly the Contempt proceedings before this Court were initiated on taking of Suo Motu action by this Court in the case of Mr. Daniyal Aziz (Criminal Original Petition No.10/2018) decided by judgment dated 28.06.2018 and further Contempt proceedings against Senator Nihal Hashmi (2018 SCMR 556) was also initiated on the note of the Registrar of this Court made to the Hon’ble Chief Justice. There are scores of other precedents on this very aspect of the matter and it seems unnecessary for us to delve upon them as it will unnecessary prolong the judgment. Relying upon the order of Hon’ble Judge passed at Peshawar neither is relevant nor appropriate. It did not deal with the case of Contempt so on this very score alone it is distinguishable. 10. Learned Sr.ASC for the alleged contemnor next contended that the speeches which are subject matter of the present contempt proceedings against the alleged contemnor are protected under the right of freedom of speech as conferred by the Article 19 of the Constitution and thus alleged contemnor cannot be made liable on such speeches for contempt of this Court. To understand this very submission of the learned Sr.ASC, it is essential here to narrate the origin of this case. The Registrar in his note has made reference to the public speeches made by the alleged contemnor on 24.01.2018 and 27.01.2018, which became the subject Crl.Org.P.No.09 of 2018 7 matter of publication of press and telecasted by different TV channels upon which the Hon’ble Chief Justice has taken cognizance and initiated contempt proceedings. The speech of the alleged contemnor dated 24.01.2018 appeared on Express TV is as follows:- Further on 27.01.2018, the alleged contemnor made a speech at Jaranwala, which was telecasted by New TV channel, the alleged contemnor stated as follows: - 11. These two statements of the alleged contemnor in terms of charge framed against him, are the subject matter of the present contempt proceedings against him. Article 19 of the Constitution provides as follows: “Every citizen shall have the right to freedom of speech and expression, and there shall be freedom of the press, subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of Court,[commission of] or incitement to an offence.” 12. It is undeniable that every citizen has been conferred right of freedom of speech and expression and such right has been conferred in Article 19 of the Constitution, which is one of the fundamental right provided in Para-II of Crl.Org.P.No.09 of 2018 8 the Constitution. However, such freedom of speech and expression given to every citizen has been made subject to reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with the foreign States, public order, decency or morality, or in relation to contempt of Court, [commission of] or incitement of an offence. Thus it is apparent that contempt of Court is one of the law to which the fundamental right of every citizen to freedom of speech and expression has been subjected to. In exercising the fundamental right of freedom of speech and freedom of expression, if a citizen impinges upon and transgresses the reasonable restrictions of law of contempt of Court, he will make himself culpable and liable to be proceeded against under the contempt of Court Law. The rationale of imposition of conditions on freedom of speech and expression as underlined by the Constitution itself is that the citizens while exercising such right have to maintain decency and decorum and not in a manner, which will infringe upon the rights of other citizens or transgress the mandate of law in relation to the working of State Institutions. Further the rationale of making of law of contempt by the Constitution itself and by promulgation of the Ordinance is as a matter of public policy to secure the law of the land which it is the duty of the Court to uphold and to secure the judges and the Court from being scandalized into hatred or ridicule. The contempt law thus is meant basically to maintain the efficacy of the Courts of justice and to secure public confidence in the administration of justice. 13. The next submission of the learned Sr.ASC for the alleged contemnor was that the show cause notice and the charge both are defective and no punishment on such defective show cause notice and charge can be imposed upon the alleged contemnor. To substantiate this submission, the learned Sr.ASC for the alleged contemnor has urged that in the show cause notice the contents of the speeches dated 24.01.2018 and 27.01.2018 were not reproduced and similarly also in the charge, the contents of the two speeches made the subject matter against the alleged contemnor were not reproduced and thus the alleged Crl.Org.P.No.09 of 2018 9 contemnor was not aware of what actually was the allegation against him in the show cause notice as well as in the charge. Learned Additional Attorney General in this respect referred to the order of this Court dated 06.03.2018 in which it is specifically noted that learned Sr.ASC for the alleged contemnor stated at the bar that he has gone through the transcripts but complained of not providing of Compact Disc (CD) which too were provided to him before framing of the charge and thus the alleged contemnor feigned denial of knowledge of contents of his speeches is not established from the record. Although in the show cause notice reference to the transcripts of two speeches of the alleged contemnor dated 24.01.2018 and 27.01.2018 was made but it was not shown by the learned Sr.ASC for the alleged contemnor that the non-reproduction of the contents of said two speeches in anyway has prejudiced the alleged contemnor from defending the contempt proceedings in that the alleged contemnor has filed reply to the show cause notice in which he also pleaded that he is not aware of the contents or material on the basis of which contempt proceeding has been initiated against him, which he has requested to be supplied to him for furnishing of further reply. As noted in the order of this Court dated 06.03.2018 not only the contents of the two speeches were read by the learned Sr.ASC for the alleged contemnor but he was also supplied Compact Disc (CD) of such transcripts of speeches. The charge against the alleged contemnor was framed on 15.03.2018, which has already been reproduced above. No law was cited by the learned Sr.ASC for the alleged contemnor to show that either the show cause notice in the manner it was issued to the alleged contemnor or the charge framed against him was defective or at all has prejudiced the alleged contemnor in defending this contempt proceeding against him. Further we note that on 26.02.2018, this Court has passed the order in the presence of the alleged contemnor which is in the following terms:- “The transcript containing contemptuous remarks has already been annexed with the paper-book. Let the alleged contemnor and his counsel go through the same. Since learned ASC for the alleged contemnor is on General Crl.Org.P.No.09 of 2018 10 Adjournment till 5th March, 2018, let this case be adjourned for 6th March, 2018” Thus the alleged contemnor also was aware of the fact that the transcripts containing contemptuous remarks has already been annexed with the paper-book and formed part of the record of the contempt proceeding against him. 14. Further the submission of the learned Sr.ASC for the alleged contemnor is that in the list of witnesses filed by the prosecution no gist of evidence was mentioned. For considering this submission of the learned Sr.ASC, we have gone through the list of witnesses filed on behalf of the prosecution by way of Criminal Miscellaneous Application No.454 of 2018 and find that it mentioned the name of Haji Adam, Director General (Monitoring), Pakistan Electronic Media Regulatory Authority (PEMRA), PEMRA Headquarter, Islamabad. Though such a submission was made by the learned Sr.ASC for the alleged contemnor that in the list of witnesses’ gist of evidence is not mentioned but he failed to point out any provision of law which require the prosecution side to file list of witnesses along gist of evidence. The procedure provided in Section 17 of the Contempt of Court Ordinance, 2003, inter alia is that after giving the alleged contemnor an opportunity of a preliminary hearing, the Court is prima facie satisfied that the interest of justice so requires, it shall fix a date for framing a charge in open Court and proceed to decide the matter either on that date, or on a subsequent date or dates, on the basis of affidavits, or after recording of evidence. As such the Ordinance itself does not lay down the procedure of filing of list of witnesses by the prosecution or of mentioning of gist of evidence in it rather the law provides that on framing of charge the Court can proceed either to take affidavit or to record evidence as the case may be. Even if the gist of evidence was not mentioned in the list of witnesses filed by the prosecution, the learned Sr.ASC for the alleged contemnor was unable to demonstrate before us that any prejudice in this regard was at all caused to the alleged contemnor in defending himself in the contempt proceeding. Crl.Org.P.No.09 of 2018 11 15. Coming to the merit of the case, we note that to prove the allegation against the alleged contemnor the prosecution produced PW-Haji Adam as its witness who produced transcript of speeches of the alleged contemnor and Compact Disc (CD) as Exh.P-2 and P-3. In his examination in chief he has stated that he has compared the transcripts with the Video Clips and it was his duty and responsibility to monitor all the licencee channels round the clock. He was cross- examined by the learned Sr.ASC for the alleged contemnor. The only main feature of this cross-examination was that the transcript of speeches are not authenticated one in that possibility of editing and doubing, in the video clips, cannot be ruled out. Both these two aspects of the cross-examination of the learned Sr.ASC of the alleged contemnor were sufficiently dealt with and answered by this witness and clarified that the transcript and the Compact Disc (CD) were obtained from the programme aired by the TV channels and that so for the question of editing and doubing is concerned, the witness replied that he has provided what was recorded and heard live. The statement under Section 342 Cr.P.C. of the alleged contemnor was recorded which is as follows: - “Statement under Section of 342 Cr.P.C (without oath) of respondent/alleged contemnor (Talal Chaudhry S/o Muhammad Ashraf Chaudhry), aged about 43 years, occupation Agricultural and Business, R/o 65-GB, Tehsil Jaranwala, District Faisalabad. Q.No.1 Have you heard and understood the evidence recorded in your presence? Ans. Yes. Q.No.2 Is it fact that you made speeches at public gathering on 24.1.2018 and 27.1.2018, telecasted by different TV channels and the DVDs and their transcripts are Exbs. as P3 and P2, respectively? Ans. It is incorrect. On 24.1.2018 it was not a speech but a press talk at Faisalabad. Such press talk was edited, manipulated and many of the sentences from the press talk have been omitted. 2. The speech Telecasted on TV channels on 27.1.2018 is also incorrect. Such telecast speech was also a manipulated one, in that various portion from it was also omitted. The speech was telecasted without reference to the context. In the speech of 27.01.2018, I did not quote anything about Judges or Court. Crl.Org.P.No.09 of 2018 12 Q.No.3 It is in the evidence that PW Haji Adam, DG Monitoring (PEMRA) produced video clips P3 of your above mentioned speeches alongwith its transcripts P2 after verifying and comparing the transcripts with the video clips. What do you say about it? Ans. Exh.P3 & P2, which are DVDs do not contain full speeches which were made during press gathering on 24.01.2018. It is correct that the videos Exh.P3 are mine but these are edited and manipulated. The video clips so also its transcription Exh.P2 do not match with each other. Q.No.4 It is in the evidence that the transcripts of DVD containing your speech dated 24.01.2018 on express TV was as follows :- and your speech dated 27.1.2018 at Jaranwala was as follows : - what do you say about it? Ans. Yes. I made these statements in my speech as well as in my press talk, but they have been edited and reference to context was not made in fact different parts of my statements have been tagged together. Q.No.5 It is in the evidence that words used in your speeches and your tone not only defame and scandalize the Court and its Judges but also tend to bring hatred in the minds of general public against Supreme Court of Pakistan and its Judges and your above said words, gesture and tone while making speeches mentioned above, aired on different channels, constitute contempt of this Court. Ans This is incorrect. I have all the respect to this Hon’ble Court. Q.No.6 Will you make statement on oath under Section 340(2) Cr.P.C. in disproving the charge against you? Ans --- No. --- Q.No.7 Will you produce evidence in your defence? Crl.Org.P.No.09 of 2018 13 Ans. --- Yes. --- Q.No.8 Do you want to say anything else? Ans. I am a young man and a law graduate. I am also a political worker and also belong to a democratic party. I am an elected representative and belong to a middle class family. I have not committed any contempt of court and have used the word PCO in my speech as a part of history in Pakistan upon which judgments have been passed by this Court. The reference of PCO was mainly symbolic and it has been mentioned in previous speeches while the lawyer movement was going on and such aspect of the matter was also dealt with in the COD (Charter of Democracy). I have already requested for cancellation of notice on the ground that my intention should not be doubted, which is not of contempt as I do respect the Court. I have made thousands of speeches but uptill now no institution or opponent has issued me legal notice. I am not a habitual offender. I am innocent. R.O. & A.C” 16. In question No.4 the alleged contemnor was confronted with the transcripts of his two speeches dated 24.01.2018 and 27.01.2018 and his answer was yes I made these statements in my speeches as well as in my press talks but stated that they have been edited and reference to context was not made and that different parts of the statements have been tagged together. 17. The alleged contemnor produced DW-1 Asrar Ahmed Khan, who admitted that he was present in the public meeting at Jaranwala on 27.01.2018. In his cross-examination he stated as follows: - “ It is correct that I have been read over the transcripts of the speech made by the alleged contemnor in the public meeting on 27.01.2018 at Jaranwala and it is correct that the words uttered and used by the alleged contemnor in the public meeting were ” Crl.Org.P.No.09 of 2018 14 18. DW-2 Musaddaq Malik, who was also present in the public meeting at Jaranwala on 27.01.2018, in his cross-examination he stated as follows: - “I have been shown the transcripts of speech of the alleged contemnor which reads as follows: - It is correct to suggest that such words were used by the alleged contemnor but were interjected by other things said by him and this was not his continuous speech.” 19. The alleged contemnor also produced DW-3 Muhammad Tahir, General Manager, PEMRA. In his examination in chief he referred to his letter dated 22.05.2018 filed at page No.3 of Criminal Miscellaneous Application 868/2018 and admitted that this letter was issued by him on the direction of Executive Member, PEMRA. The alleged contemnor did not got this letter produced as exhibit. 20. Anyhow, we have gone through this letter and it simply mentions that no show cause notice was issued to any Satellite channel regarding airing of speeches made by the alleged contemnor on 24.01.2018 and 27.01.2018. In our view non-issuing of show cause notice by PEMRA to the Satellite TV channels could not furnish ground of defence to the alleged contemnor for that to issue show cause notice to the Satellite channels was a matter between PEMRA and Satellite TV channels with which the Court is not much concerned. Though as a matter of law or policy PEMRA was required to issue show cause notice to the Satellite TV channels by not doing so the same does not has any reflection or connection with the contempt proceeding initiated by the Court against the alleged Crl.Org.P.No.09 of 2018 15 contemnor. The remaining two witnesses produced by the alleged contemnor apparently were stock witnesses and not much turns on their evidence. 21. We have closely looked and examined the two transcripts of speeches made by the alleged contemnor and apparently find that such utterances of the alleged contemnor, amounted to abuse of Court and to scandalize the Court or tends to bring the Court or a Judge of the Court into hatred, ridicule or contempt within the meaning of Article 204 of the Constitution and further such contempt in terms of Section 18 of the Contempt of Court Ordinance, 2003 was substantially detrimental to the administration of justice in that it scandalized the Court and tend to bring the Court or a Judge of the Court into a hatred or ridicule. Learned Sr.ASC for the alleged contemnor during the course of his arguments has contended that even if this Court comes to the conclusion that the two speeches of the alleged contemnor do make out a case of contempt of Court against him, the Court will not act in vengeance rather the Court will exercise judicial restraint. In this regard learned Sr.ASC for the alleged contemnor has relied upon the cases of Habibul Wahhab Elkheiri vs. Khan Abdul Wali Khan and 4 others (PLD 1978 Supreme Court 85), Re-Contempt of Court Proceedings against General (Retd) Mirza Aslam Baig (PLD 1993 Supreme Court 310), Riaz Hanif Rahi vs. Saeed-uz- Zaman Siddiqui and 4 others (2011 SCMR 948) and also referred to the statements made by Faisal Raza Abdi and the statements made by Khadim Hussain Rizvi, President, Tehreek-i-Labbaik Pakistan at Faizabad Dharna in respect of which the Court took no action against the above two persons. He further contended that the two speeches of the alleged contemnor have been quoted out of contexts and that it could not be used against the alleged contemnor. We may note that though the alleged contemnor has taken this line of defence in this contempt proceeding against him but burden to prove the fact that these two speeches have been referred out of context, was upon him. He produced as many as five witnesses and even the General Manager from PEMRA but he never bothered to produce before the Court the whole text of his two speeches to show Crl.Org.P.No.09 of 2018 16 that they are out of context. Once the alleged contemnor has taken up the defence on a point that his two speeches have been referred to out of context, the burden was upon him to show and establish that such was the case, which he failed to do. 22. As regard the submission of the learned Sr.ASC for the alleged contemnor that the Court ought to show judicial restraint. We have gone through the judgment cited by him and are of the view that these are not of much help to the alleged contemnor as the principle of judicial restraint is not a universal principle to be applied in each and every case as each and every case is based upon its own different facts, which in law are required to be dealt with in the peculiar facts and circumstances at their own case. The alleged contemnor in his two speeches as have been reproduced above in order to show his unfaltering allegiance to Mian Muhammad Nawaz Sharif, who as Prime Minister of Pakistan and was ousted from office by the judgment rendered by this Court in PANAMA case has uttered words seriously prejudicing the office of the Hon’ble Chief Justice of Pakistan and the judges of this Court and ultimately the whole Court as an Institution and his utterances were not at all or within the ambit of the decency, morality and decorum but showed utter venom for which he himself has no cause of his own. The alleged contemnor in his two speeches has not only abused the judges of this Court but has scandalized the Court and did everything to bring the Court into hatred, ridicule and contempt, which is substantially detrimental to the administration of justice and scandalizes the Court and tends to bring the Court and judges of the Court into hatred and ridicule. 23. For all the above reasons, we are satisfied that the alleged contemnor has committed contempt of Court within the meaning of Article 204 of the Constitution read with Section 3 of the Contempt of Court Ordinance, 2003 and made himself liable for punishment. Thus he is convicted and sentenced under Sections 3 & 5 of the Ordinance, 2003 and punished with imprisonment till the rising of the Court with fine of Rs.100,000/-. Crl.Org.P.No.09 of 2018 17 24. The Contempt proceeding in the above terms stand disposed of. JUDGE JUDGE Islamabad Special Bench Rabbani/PS JUDGE Announced in open Court on . JUDGE Approved for reporting.

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.100-K & 101-K of 2020 (Against the order dated 31.01.2020 passed by the High Court of Sindh in Crl. A. Nos. S-11 & 12/2019) Ghaffar Mahesar (in both cases) …..Petitioner(s) Versus The State through P.G. Sindh and others (in both cases) …Respondent(s) For the Petitioner(s): Abdul Baqi Jan Kakar, ASC For the State: Mr. Saleem Mangrio, Addl. P.G. Sindh For the Complainant: In person Date of Hearing 26.01.2022. ORDER Qazi Muhammad Amin Ahmed, J.- Saddar-ud-Din, 28/29, was shot dead at 11:30 a.m. on 18.5.2018 within the precincts of Police Station Tharo Shah District Noshahro Feroz; incident was reported by his father Ali Nawaz (PW-1) at 2:00 p.m; the petitioner, Lakhmir @ Lakhoo and an unknown person were arrayed as suspects in the crime report. Petitioner’s displease over deceased’s marriage with daughter of one Arbab Mehsar is cited as motive for the crime. Even dated autopsy confirmed receipt of four shots, jointly fired by the petitioner and Lakhmir co-accused, proved collectively fatal; petitioner was arrested on 20.5.2018 and pursuant to a disclosure, led to the recovery of a .30 caliber pistol found wedded with the casings secured from the spot; Lakhmir co-accused is still away from law whereas prosecution is clueless about the third assailant till date. The learned Sessions Judge, Naushahro Feroze returned a guilty verdict vide judgment dated 22.1.2019 whereunder the petitioner stood convicted under clause (b) of section 302 of the Pakistan Penal Code, 1860; he was sentenced to imprisonment for Criminal Petition No.100-K & 101-K of 2020 life; for recovered weapon being illicit, he was additionally convicted and sentenced, both upheld by a learned Judge-in-Chamber of the High Court of Sindh at Sukkur, vide impugned judgment dated 31.1.2020, leave to appeal wherefrom is being prayed for on the grounds that there was no occasion for the learned trial Judge to convict the petitioner on capital charge in the absence of “proof beyond doubt” , an error repeated by the High Court; it is next argued that statements of the witnesses being discrepant were not worthy of reliance and that the ballistic report relied by the prosecution being inherently flawed was liable to be excluded from consideration. With a vague and non-specific motive, fraught with doubts, petitioner’s conviction could not be maintained without potential risk of error, concluded the learned counsel. The learned Law Officer contrarily defended the impugned judgment. 2. Heard. Record perused. 3. Occurrence is a daylight affair; Ali Nawaz (PW-1), Sher Muhammad (PW-2) and Abdul Raheem (PW-3) unanimously pointed their finger upon the petitioner as being one of the assassins; Ali Nawaz (PW-1) being father of the deceased is certainly not expected to substitute the real assassin of his son with a proxy. We have gone through their statements to find them in a comfortable unison on all the salient aspects of the case as well as details collateral thereto. Being from the same neighbourhood, their presence at the crime scene cannot be viewed with suspicion. Medical evidence is consistent with the timeline of the occurrence as well as injuries suffered by the deceased. Preponderance of evidence undoubtedly constitute “proof beyond doubt” and, thus, can be relied upon without a demur to hold the petitioner guilty of the crime, particularly, in the face of a bald denial with reticent support of his real brother, clamouring innocence. Petitions fail. Leave declined. Judge Judge Judge Islamabad, the 26th January, 2022 Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmed Malik Mr. Justice Sajjad Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.1001-L of 2017, Jail Petition Nos.461 & 462 of 2017 (Against judgment dated 11.04.2017 passed by Lahore High Court Lahore in Cr. Appeal No.1130 of 2016 & CSR No.17-T of 2016) Haroon Bin Tariq (in Cr. P. No.1001-L/2017) Zulfiqar Ali alias Muhammad Ali & another (in J.P. No.461/2017) Mst. Raaj Sanam (in J.P. No.462/2017) …Petitioner(s) Versus The State & 2 others (in Cr. P. No.1001-L/2017) The State (in J.P. No.461 & 462 of 2017 ) …Respondent(s) For the Petitioner(s): Ch. Akhtar Ali, AOR, (in Cr. P. No.1001-L/2017) Mr. Talat Mahmood Zaidi, ASC (in JP No.461 & 462/2017) For the State: Ch. Sarwar, Additional Prosecutor General Punjab Date of hearing: 16.10.2019. JUDGMENT Qazi Muhammad Amin Ahmed, J. A petty brawl graduated into a violent incident claiming two lives with equal number of injured, at 6.30 p.m. on 29.7.2013 within the precincts of Police Station B Division Gujrat. The incident is reported by one of the injured namely Haroon Bin Tariq, PW-9; complainant alleged that his family set up a makeshift garments stall for Eid in front of their house; on the fateful day, Zulfiqar Ali alias Muhammad Ali Criminal Petition No.1001-L of 2017, Jail Petition Nos.461 & 462 of 2017 2 and Aamir Ali with their sister Raj Sanam and mother Yasmin Butt, each armed with .30 caliber pistols mounted the assault; Yasmin exhorted the co-accused to avenge insult of the preceding incident, occurred three days back and soon thereafter dealt a butt blow to Nasir, PW-10; Muhammad Saleem Shah, a police constable in uniform, going past per chance, attempted to hold Zulfiqar Ali accused who fired upon him in his head; Raj Sanam repeatedly targeted Babar followed by Aamir Ali with the fire shot on complainant’s left flank; firing in the air, the accused took to the heels. According to the complainant, Zulfiqar Ali alias Muhammad Ali and his brother Aamir had made obscene overtures to the female customers and for that they were admonished and it was in this backdrop that the accused avenged the insult. Haider Ali was taken on board as an abettor to the crime; they were tried by the learned Special Judge Anti Terrorism Court-II at Gujranwala; Zulfiqar and Aamir Ali being juvenile were dealt with separately. Vide judgment dated 18.2.2016, Haider Ali, the alleged abettor was let off whereas remainders were returned a guilty verdict on all counts. The learned High Court vide impugned judgment dated 11.4.2017, passed in separate appeals, acquitted Mst. Yasmin Butt from the charge; Aamir Ali was acquitted from the counts of terrorism as well as homicide of Muhammad Saleem Shah deceased; his conviction for murderous assault was maintained, however, with reduction in the sentence to 4-years RI; having served out, he has since been released; penalty of death awarded to Zulfiqar Ali alias Muhammad Ali as well as Mst. Raaj Sanam was reduced to imprisonment for life on all counts with concurrent commutation thereof; benefit of section 382-B Cr.P.C. inclusive; vires whereof are being assailed, by the convicts through Jail Petition Nos. 461 & 462 of 2017 whereas by the complainant vide Criminal Petition No.1001(L) of 2017; bound by a common thread, these are being decided through this single judgment. 2. Learned counsel for the convicts has emphatically stressed upon the improbability of female participation in the occurrence; according to him, there was seemingly no occasion in the presence of male members of the family that Mst. Raaj Sanam, a youthful lady, would come forward to join the assault. The bottom line is that prosecution has cast a wider net to rope the entire clan; he has referred to the acquittal of Mst. Yasmin Butt to substantiate the Criminal Petition No.1001-L of 2017, Jail Petition Nos.461 & 462 of 2017 3 point. None is in attendance to argue Criminal Petition No.1001-L of 2017 on complainant’s behalf, however, the learned Law Officer has faithfully defended the impugned judgment; he maintained that ocular account furnished by the witnesses that included the injured successfully drove home the charge with forensic support. 3. Occurrence took place in Gujrat, a sizable city, nonetheless, integrated in the web of traditional social ethos. In this milieu, participation of two ladies, each armed with a lethal weapon, accompanying the male companions, no other than real brothers, equally participating in the assault, premeditated as alleged by the prosecution, is a circumstance that fails to inspire our confidence; it is prosecution’s own case that Zulfiqar Ali and Aamir Ali were armed with .30 caliber pistols and with these semi automatic weapons, they came all the way to the venue to settle the score. We do not expect that two real brothers would allow to join their mother and sister in an assignment, they could conveniently accomplish on their own. Conversely, we again find it hard to contemplate that a mother would set off her sons on a course that may possibly take them to the gallows, that too, for a trivial motive; she is already off the hook. Mst. Raaj Sanam is identically situated in the same contextual framework and as such her involvement in the crime cannot be viewed without suspicion. Jail Petition No.462 of 2017 is converted into appeal and allowed; impugned judgment is set aside; she is acquitted from the charge and shall be released forthwith, if not required in any other case. Case of Zulfiqar Ali and Aamir Ali is distinctly structured; ocular account supported by forensic evidence is inescapably pointed upon their culpability in terms of roles individually assigned to them. Though Aamir Ali petitioner was taken out of community of intention by the High Court, his culpability in terms of role ascribed to him, has been believed by the Courts below; upon our independent analysis, we have not been able to take any legitimate exception to the conclusion drawn by the High Court. However, insofar as Zulfiqar Ali’s conviction under Section 7 of the Anti Terrorism Act 1997 is concerned, we have noticed that misfortune, unanticipatedly, brought Muhammad Saleem Shah deceased, clad in police uniform, in the line of fire; he was not intended target of the assailants nor deputed at the crime scene to perform any officially assigned task; there is no independent Criminal Petition No.1001-L of 2017, Jail Petition Nos.461 & 462 of 2017 4 verification that he directed himself to the assailants in order to disengage or overpower them and in the process received fire shot during grappling from a close blank; on the contrary, medical evidence contradicts the prosecution case, as there is no blackening on the margins of solitary entry wound; possibility of a stray bullet cannot be viewed as entirely unrealistic, particularly in the presence of as many as 16 casings, secured from the spot, unambiguously suggesting volley of fires; though most unfortunate, nonetheless, his death does not additionally attract the mischief of Section 6(1)(n) of the Act ibid. Consequently, Zulfiqar Ali alias Muhammad Ali’s conviction and sentence under section 7 of the Act ibid is set aside. Jail Petition No.461 of 2017 to the extent of Aamir Ali is dismissed, however, qua Zulfiqar Ali convict, it is converted into appeal and partly allowed in the above terms. As a natural corollary, Cr. P. No.1001-L/2017 is dismissed. Judge Judge Judge Islamabad 16th October, 2019 Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.1001 of 2016 (Against the judgment dated 11.05.2016 passed by the Peshawar High Court Peshawar in J. Cr.A. 224- P/2013) Asfandiyar …Petitioner(s) Versus The State, etc. …Respondent(s) For thePetitioner(s): Mr. Muhammad Ilyas Siddiqi, ASC For the State: Mr. Anis M. Shahzad, ASC Date of hearing: 01.02.2021. ORDER Qazi Muhammad Amin Ahmed, J.-Indicted for committing Qatl-i-Amdof Muhammad Ali Shah, 26, on 15.4.2010 within the precincts of Police Station Lahore, District Swabi, in the backdrop of a monetary dispute, the petitioner was returned a guilty verdict by a learned Addl. Sessions Judge vide judgment dated 30.04.2013; convicted under clause (b) of section 302 of the Pakistan Penal Code, 1860, he was sentenced to imprisonment for life. The High Court declined to interfere both with conviction as well as quantum of sentence, through consolidated judgment dated 11.5.2016. The convict seeks leave to appeal on the ground that there was no occasion for the High Court to maintain conviction resting upon flawed and discrepant evidence, furnished by a lone witness, related in first degree to the deceased and that prosecution’s failure to establish alleged motive completely demolished its case; that casings secured from the spot did not tally with the weapon allegedly recovered from the petitioner; the bottom line is that it would be unsafe to place implicit reliance on the statement of solitary eye witness, clamouring corroboration so as to maintain conviction on a capital charge. The learned Law Officer has faithfully defended the judgment. 2. Heard. Record perused. 3. Ahmad Ali Shah (PW-4) furnished ocular account about the incident, a daylight affair within thick of the locality, reported promptly to Criminal Petition No.1001 of 2016 2 the police within one hour; formal FIR was recorded at 1:45 p.m. whereas autopsy followed at 2:30 p.m. The brief interregnum does not admit possibility of deliberations or consultations, particularly in the face of nomination of single accused. Durations between injuries and death as well as death and postmortem are synchronized with the time of occurrence mentioned in the crime report. Though droppage of Abbas Ali Shah, real brother of the deceased, as being unnecessary, sans any apparent explanation, nonetheless, this fact by itself, does not militate against the testimony of his father Ahmad Ali Shah (PW-4), found by us consistent, straightforward and confidence inspiring, subjected to a grueling cross-examination at inordinate lengths, he returned from the witness box unscathed. Parental concerns seem weighing with a father as an overriding consideration for recusing the surviving son from treading a path fraught with hazards and, thus, taking solely upon himself onerous responsibility of prosecuting the case. Law does not require a particular number of witnesses to prove a criminal charge and statement of a solitary witness with a ring of truth is more than sufficient to drive home the charge; corroboration is a rule of prudence and not law and cannot be invariably insisted in every case. Belatedly taken plea of substitution by the petitioner that the deceased was done to death by one Ashfaq is nothing but a far cry; it is inconceivable that a father would substitute the assassin of his son with an innocent without rhyme or reason. Longstanding absconsion with arrest as late as on 2.5.2012 is yet another predicament bracing the petitioner. On an overall analysis of the evidence, we have not been able to find space to admit any hypothesis other than petitioner’s guilt; view concurrently taken by the Courts below, being unexceptionable, calls for no interference. Petition fails. Leave declined. Judge Judge Islamabad, the 1st February, 2021 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmed Malik Mr. Justice Sajjad Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.1004 of 2019 (Against judgment dated 08.08.2019 passed by Islamabad High Court Islamabad in Cr. Misc. No.289-B of 2019) Anti Narcotics Force through its Regional Director …Petitioner(s) Versus Syed Paris Ali …Respondent(s) For the Petitioner(s): Ch. Ihtesham-ul-Haq, Special Prosecutor, ANF For the Respondent(s): N.R. Date of hearing: 17.10.2019. JUDGMENT Qazi Muhammad Amin Ahmed, J. Syed Paris Ali, respondent herein, was surprised by a contingent of Anti Narcotics Force on 4.12.2018; he was found in possession of charas, weighing 3600 grams; his attempts for bail failed throughout, including this Court. Undeterred by his earlier failures, the respondent chartered the course once again on medical grounds. The plea found favour with the Islamabad High Court and the respondent was admitted to post arrest bail vide impugned order dated 8.8.2019, vires whereof are being assailed with the plea that there was no occasion for the High Court to grant bail to the respondent in the absence of a valid fresh ground as according to the learned counsel, nothing substantial changed ever since dismissal of respondent’s plea in this Court including his health condition. It has been pointed out that the disease alleged by the respondent and relied upon by the High Court carried no serious threat and was treatable within the jail. 2. The impugned order is structured upon a report, reproduced below:- “The said accused has history of fire arm injury (FAI) and had explanatory laparotomy in June, 2018 by GSU-1 (General Surgery Unit- 1). He had multiple gut perforations for which primary repair was done Criminal Petition No.1004 of 2019 2 in 2018. Now, the accused is complaining of painful defecation, constipation and on & off bleeding per rectum. On per anal examination, well heeled midline scar, no swelling and no mass palpable. On digital rectal examination anal fissure at 6 O’ clock with skin tag. The diagnosis as per Dr. Sajid Ali Shah, Assistant Professor, Department of General Surgery, Pakistan Institute of Medical Sciences, Islamabad is of anal assure; the accused was advised medicines and given instructions as below: Tab Novidat 500 mg Twice daily x 5 days Tab Flagyl 500 mg Thrice daily x 5 days Tab Zantac 150 mg Twice daily x 2 weeks Pyodine sitz bath as instructed Cream. GTN 0.2 % Twice daily Isphaghula Husk Two Ten Spoons Full at sleeping hour Syp. Duphalac 30 ml at sleeping hour The accused was instructed to take plenty of water, take extra fruits and vegetables and to avoid spicy foods with follow-up in surgical OPD after two months.” The above report, apparently, does not suggest any serious health disorder beyond hemorrhoids nor it appears to require any treatment possibly not available in jail hospital. It does not suggest any special procedure for the respondent as well. Not every ailment entitles an accused to be released on bail unless such a malady is found life threatening or without possible cure in the prison. Consideration that weighed with the High Court does not commend for approval particularly after respondent’s failure in this Court, however, since the trial has commenced, likely to be concluded soon and concession has not been abused, we do not consider it expedient to recall the bail as the provisions of sub section 5 of section 497 of the Code of Criminal Procedure, 1898 are not punitive in nature. Petition fails. Dismissed. Judge Judge Judge Islamabad 17th October, 2019 Azmat/-

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE EJAZ AFZAL KHAN MR. JUSTICE MAQBOOL BAQAR MR. JUSTICE FAISAL ARAB CRIMINAL PETITION NO. 100 OF 2017 (On appeal against the judgment dated 19.01.2017 passed by the Lahore High Court, Lahore in Criminal Revision No. 71/2017) Ayesha Bibi … Petitioner VERSUS ADJ Lahore and others … Respondents For the Petitioner: In person For the Respondent (2): In person For the State: Mr. Ahmed Raza Gillani, Addl. P.G. Date of Hearing: 15.02.2018 JUDGMENT FAISAL ARAB, J.- When the petitioner could not get an FIR registered against the respondent No. 2 for violating her modesty, she filed a petition under Section 22A of the Code of Criminal Procedure to seek direction from the Sessions Court to the police. Her petition was however dismissed and so was the constitution petition filed by her in the High Court. She then challenged the order of the High Court before this Court and this Court directed her to approach the SHO in the first instance and record her statement. Resultantly, the Police registered an FIR bearing No. 806/2013 against respondent No. 2 under Section 376 PPC. At a later stage the petitioner also registered a criminal case against respondent No. 2 for assaulting her and taking away her Criminal Petition No. 100/2017 2 gold ornament. In retaliation to the criminal cases registered against him, respondent No.2 filed a civil suit against the petitioner for damages on the ground that he is being continuously harassed on account of criminal cases filed by the petitioner and as a result thereof he remains tense and mentally disturbed. The said suit is said to be pending. 2. Respondent No.2 considering that the two criminal cases lodged against him by the petitioner have tarnished his blameless character in the eyes of his family members, friends and colleagues, in addition to filing the civil suit also sought an FIR registered against the petitioner under the provision of Section 500 PPC alleging defamation. The concerned SHO refused to register the case on the ground that from the allegation narrated by respondent No.2 no cognizable offence is made out. Having failed in getting an FIR registered, respondent No. 2 filed a private complaint under Section 200 of the Code of Criminal Procedure read with Section 500 PPC seeking the petitioner’s conviction for defaming him on account of initiation of the two criminal cases. The Sessions Court took cognizance of respondent No. 2’s private complaint and issued notice to the petitioner. At that stage the petitioner moved an application under Section 265-K of the Code of Criminal Procedure on the ground that the private complaint is nothing but a counterblast to the pending criminal cases which she had lodged against respondent No.2. The court however dismissed her application vide order dated 02.12.2016. The petitioner being aggrieved by such dismissal, filed criminal revision before the High Criminal Petition No. 100/2017 3 Court which too was dismissed in limine vide impugned order dated 19.01.2017. Hence, this petition. 3. Petitioner, who appeared in person, contended that from the contents of the private complaint filed under Section 500 PPC, it is evident that no case warranting criminal action is made out against her which has been filed only to blackmail and harass her in retaliation to the criminal cases which she had registered against respondent No. 2 and the courts below ought to have considered this aspect of the matter and accordingly should have acquitted her under the provisions of Section 265-K of the Code of Criminal Procedure. Respondent No. 2, who also appeared in person, in reply contended, that on account of the false imputations made in the criminal cases registered against him by the petitioner has tarnished his reputation in the eyes of his family, friends and his co-workers. 4. Maintenance of peace in the society is one of the most important characteristics of public interest which requires effective policing. Effective policing depends upon flow of information about any crime and its perpetrator. Experience shows that many people though mindful of their civic duties are unwilling to put forward a complaint out of fear that it will involve them in litigation. Only when they feel assured that the administration of justice, which is a vital and foremost facet of public interest, requires that a complainant or an informant should enjoy immunity for what he states orally or in writing to the investigators as a matter of public policy so that they are confident in coming forward and giving Criminal Petition No. 100/2017 4 information to the police. No doubt this rule can be abused by a revengeful person but for such reason pubic interest cannot be compromised. 5. In a judgment of House of Lords in the case of Taylor Vs Director of the Serious Fraud Office [1999] 2 AC 177 while expressing his opinion on immunity, Lord Hope at page 218 states as follows:- ‘The public interest requires that those involved in such an investigation should be able to communicate freely and without being inhibited by the threat of proceedings for defamation. The requirement, therefore, should be accorded priority over the countervailing consideration that sometimes a malicious informant may be able to benefit from such a rule in circumstances which would appear to be unfair or unjust.’ 6. In Messr. Bapala & Co. v AR Kristmaswami Aiyer 1941 AIR (Mad) 26 it was held that a complaint made to a police officer by the complainant from its very nature if called upon in court to substantiate upon oath is absolutely privileged, this can be reflected in the following passage which is reproduced below: ‘Both Judges apply the principle of Watson v. M'Ewan (1905) A.C. 480, to a complaint to the police and Ghose, J., points out on page 580 that the reason for the privilege is stronger in the case of a complaint to the police than in the case of statements to a solicitor for the question whether a prosecution shall follow upon the complaint is taken out of complainant's hands by his own action. 5. I am accordingly of opinion that the weight of authority is in favour of the view that a complaint to a Police Officer from its Criminal Petition No. 100/2017 5 very nature as a statement which the complainant is prepared later, if called upon to do so, to substantiate upon oath is absolutely privileged.’ 7. In Bira Gareri V. Dulhin Somaria 1962 AIR (Patna) 229 it was held as under:- ‘….. giving information to the police of a cognizable offence with the object of setting the law in motion for the police to investigate and institute the case to be taken in the conduct of a legal proceedings and statements made in such an information must be absolutely privileged.’ 8. The principle is further elaborated in the case of Thekkittil Gopalankutty Nair v Melepurath Sankunni Ezhuthaseah AIR 1971 Ker 280 which discusses when statements would be covered by the said immunity. It was held:- ‘…absolute immunity is not confined to statements made ‘coram judice’ but extends to statements made in the course of proceedings so closely related to judicial proceedings as to constitute a step in or towards such a proceedings and, therefore, proceedings forming part of the administration of justice. The privilege attaches not merely to proceedings at the trial, but to proceedings which are essentially steps in judicial proceedings, including statements in pleadings and communications passing between a solicitor and his client on the subject on which the client has retained the solicitor and which are relevant to the matter.’ 9. Likewise taking a case from English jurisdiction in Westcott V Westcott [2008] EWCA Civ 818 the Court while Criminal Petition No. 100/2017 6 considering the public importance of absolute privilege held as under:- ‘..The policy being to enable people to speak freely, without inhibition and without fear or being sued, the person in question must know at the time he speaks whether or not the immunity will attach. Because society expects that criminal activity will be reported and when reported investigated and, when appropriate, prosecuted, all those who participate in a criminal investigation are entitled to the benefit of absolute privilege in respect of the statements which they make.…..The police cannot investigate a possible crime without the alleged criminal activity coming to their notice. Making an oral complaint is the first step in that process of investigation. In order to have confidence that protection will be afforded, the potential complainant must know in advance of making an approach to the police that her complaint will be immune from a direct or a flank attack.…In my judgment, any inhibition on the freedom to complain will seriously erode the rigors of the criminal justice system and will be contrary to the public interest. In my judgment immunity must be given from the earliest moment that the criminal justice system becomes involved. Making of both the oral complaint and the subsequent written complaint must be absolutely privileged.’ 10. In the case of National Society For The Prevention Of Cruelty To Children v D (Married Woman) [1979] 2 All ER 993 the rule of immunity was emphasized in the following words:- ‘That the rule can operate to the advantage of the untruthful or malicious or revengeful or self-interest or even demented police informant as much as one who bring information from a high minded sense of civic duty. Experience seems to have shown that though the resulting immunity from disclosure can be Criminal Petition No. 100/2017 7 abused the balance of public interest lies in generally respect it.’ 11. Furthermore in the case of Lincoln V Daniels [1962] 1 Q.B. 237 at 257, it was held:- ‘The absolute privilege which covers proceedings in or before a court of justice can be divided into three categories. The first category covers all matters that are done coram judice. This extends to everything that is said in the course of proceedings by judges, parties, counsel and witnesses, and includes the contents of documents put in as evidence. The second covers everything that is done from the inception of the proceedings onwards and extends to all pleadings and other documents brought into existence for the purposes of the proceedings and starting with the writ or other document which institutes the proceedings. The third category is the most difficult of the three to define. It is based on the authority of Watson V. M’ Ewan [1905] A.C. 480 in which the House of Lords held that the privilege attaching to evidence which a witness gave coram judice extended to the precognition or proof of that evidence taken by a solicitor. It is immaterial whether the proof is or is not taken in the course of proceedings.’ 12. No doubt Section 499 PPC allows a person to bring a separate case against a person who intentionally makes a defamatory statement to harm ones reputation. However, where a person is sued for defamation on account of giving a statement to the police on the basis of which a criminal investigation commences or is given during the course of a criminal investigation, the claim for defamation would certainly undermine the rule of immunity which is devised as a public policy consideration for proper administration of justice and thus the claim of defamation has to be Criminal Petition No. 100/2017 8 struck down as being abuse of the process of the court. The rule of immunity is attracted irrespective of the fact whether criminal action succeeds or not. However, at the end of the trial if the acquitted person demonstrates that the criminal action was tainted with malice i.e. the law was set in motion maliciously without a reasonable cause i.e. whatever the complainant has stated in the criminal proceedings was based on fabrication of evidence or a statement was attributed to someone which was not said or written by him then he can be sued for malicious prosecution, scope of which falls within the confines of Section 250 of the Code of the Criminal Procedure but nothing more as this section only deals with frivolous or vexatious accusations made in the course of proceedings and not with an allegation of defamation. Section 250 of the Code of Criminal Procedure thus can only be invoked when a case has been proved to be false on evidence. The case of Taylor v Director of the Serious Fraud Office [1999]2 AC 177 establishes the principle that a remedy in malicious prosecution is available if a person has been found to have maliciously initiated a criminal proceeding in the following words:- ‘Public interest requires that a remedy for malicious prosecution should remain available against those who would be entitled to the benefit of the absolute privilege but who have acted maliciously and without reasonable and probable cause during the investigation process. But that is a quite separate matter as it is the malicious abuse of process, not the making of the statement, which provides the cause of action.…. It by no means follows that because a malicious complainant can be sued for malicious prosecution or prosecuted for perjury such a person should also be open, at an earlier stage, to a claim in defamation.’ Criminal Petition No. 100/2017 9 13. Hence Section 250 of the Code of Criminal Procedure cannot be invoked in consideration of the fact that intention to lodge the criminal case was to ruin the reputation of the acquitted person. What has been discussed above can be summarized thus; the action for defamation on account of initiating criminal proceedings is hit by the rule of immunity which is devised for proper administration of justice whereas the action for malicious prosecution as provided in Section 250 of the Code of Criminal Procedure is not so hit by the rule. We therefore convert this petition into appeal, allow it, set aside the impugned judgment and acquit the petitioner of the charges levelled against her by applying the provisions of Section 265-K of the Code of Criminal Procedure. JUDGE JUDGE JUDGE Islamabad, the Announced on 15.03.2018 by Hon’ble Mr. Justice Faisal Arab Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Sajjad Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.101-K of 2021 (Against the judgment dated 16.06.2021 passed by the High Court of Sindh, Circuit Court, Hyderabad in Cr. A. No.D-250 of 2011 with Confirmation Case No.D-14 of 2011) Mushtaque Hussain …Petitioner(s) Versus The State through Prosecutor General Sindh …Respondent(s) For the Petitioner(s): Mr. Wali Muhammad, ASC Mr. Ghulam Rasool Mangi, AOR For the State: Mr. Hussain Bux Baloch, Addl. Prosecutor General, Sindh Date of hearing: 07.09.2021. ORDER Qazi Muhammad Amin Ahmed, J.- Petitioner is complainant in a case of homicide, reported vide FIR No.26 dated 29.5.1997 at Police Station Bhitainagar District Hyderabad; it was alleged that on the fateful day, Abdul Rahim accused shot dead Dr. Tanvir Hafeez, no other than his sister-in-law, in the backdrop of some domestic dispute; sent to trial, the accused was returned a guilty verdict; convicted under clause (b) of section 302 of the Pakistan Penal Code, 1860, he was sentenced to death by the learned Sessions Judge Hyderabad vide judgment dated 15.8.2011, altered into imprisonment for life by a Division Bench of the High Court of Sindh vide impugned judgment dated 16.6.2021, being assailed on the grounds that given the brutality inflicted upon the deceased, awfully reflected by as many as eight entry wounds with corresponding exits, there was no occasion for the High Court to alter penalty of death into imprisonment for life. The bottom line is that the wage settled by the learned trial Judge being most conscionable in circumstances did not warrant reduction and, thus, interference by this Court is most called for. 2. Heard. Criminal Petition No. 101-K of 2021 2 3. Be that as it may, the respondent who has not even been arrayed as a party in this petition, as per report submitted by the Superintendent Jail, has since been released on 1.7.2021 after serving out his sentence, reckoned in prison role as 16-years 5-months 1-day, remissions inclusive; it appears that after dismissal of his appeal albeit with reduction in sentence, he had contently retired to his fate. Imprisonment for life is a legal sentence and has already been served out by the petitioner and, thus, enormity of his crime notwithstanding, he cannot be recalled so as to be dispatched to the gallows for the offence he has endured imprisonment for life; there being one life, he cannot be vexed twice. Petition fails. Leave declined. Judge Judge Karachi, the 7th September, 2021 Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE SH. AZMAT SAEED MR. JUSTICE IJAZ UL AHSAN Criminal Petition No.1011 of 2017 Against order dated 16.08.2017 of Lahore High Court, Lahore, passed in Criminal Miscellaneous No.47853-H of 2017. Mirjam Aberras Lehdeaho Petitioner(s) VERSUS SHO, PS Chung, Lahore & others Respondent(s) For the Petitioner (s) : Ms. Asma Jehangir, Sr.ASC Ch. Akhtar Ali, AOR For Respondent No.2 : Ch. Ishtiaq Ahmed, ASC a/w Ghulam Qasim Dogar and Ghulam Jaffer Dogar (Minors) For the State : Ch. Muhammad Waheed Khan, Addl.P.G, Punjab Date of Hearing : 05.12.2017 JUDGMENT IJAZ UL AHSAN, J-. The petitioner seeks leave to appeal against an order of Lahore High Court, Lahore, dated 16.08.2016. Through the impugned order, a Habeas Corpus Petition (Crl.Misc.No.47853-H of 2017) filed by the petitioner seeking recovery of her minor sons namely Ghulam Qasim Dogar and Ghulam Jaffer Dogar was dismissed. 2. The petitioner, who is a National of Finland met and later married Respondent No.2, who is presently serving as DIG, Punjab Highway Patrol. The marriage took place in 1997 in Lahore, Pakistan. Before the marriage, the petitioner converted to Islam. She states that she continues to be a Muslim. The parties have three children from the marriage Criminal Petition No.1011 of 2017 2 namely, Zahra Bibi Dogar (about 19 years of age presently living in Canada); Ghulam Qasim Dogar (aged about 17 and a half years); and Ghulam Jaffer Dogar (about 13 years old). All three children were born in Lahore, Pakistan. 3. The parties alongwith their children resided in Lahore till 2009. However, presumably on account of security concerns, Respondent No.2 decided to apply for Canadian Immigration for the whole family. On his desire, the family relocated and settled in Grand Falls-Windsor, Newfoundland, Canada. Respondent No.2 also purchased a house in Canada where the family is residing. All three children started schooling in September, 2009 and till recently were living and studying in Canada. 4. It appears that the petitioner and the three children acquired Canadian Citizenship on 17.08.2014. However, Respondent No.2 only acquired Permanent Resident Status as he did not apply for citizenship owing to his Government Service in Pakistan. He returned to Pakistan after getting such status. He however visited his family off and on. The three children were in the care and custody of the petitioner since 2009 who single handedly raised them in Canada. 5. In 2016, during a visit to his family, Respondent No.2 appears to have made plans for the petitioner and their children to visit Pakistan for three weeks. All three children and the petitioner stayed in Lahore till 05.09.2016. Thereafter they returned to Canada with the consent of Respondent Criminal Petition No.1011 of 2017 3 No.2. In order to ensure that there would be no objection by the Immigration authorities regarding minors’ traveling with one parent, Respondent No.2 issued permission letter dated 03.09.2016 in favour of the petitioner. 6. Before the petitioner and the children left for Canada, Respondent No.2 insisted that the three children should visit Lahore again during Christmas holidays in December, 2016. While the daughter appears to have declined, the two sons agreed to a short visit with an understanding that they would return to Canada on 26.12.2016. The two children arrived in Lahore on 21.12.2016 with a clear understating that they would return to Canada on 26.12.2016. However, without disclosing anything to the petitioner or the children, Respondent No.2 had quietly filed an application in the Guardian Court at Lahore, under Section 7 of the Guardians & Wards Act, 1890 (the Act, 1890) seeking his appointment as a Guardian of the person and property of three children. The application was filed by him on 01.09.2016 when the children were temporarily in Lahore and later left for Canada with his permission. It is also significant to note that the daughter had already attained the age of majority and was therefore an adult which fact was concealed from the Court. 7. Respondent No.2 managed to obtain an ex parte restraining order against the petitioner (in absentia) from the Court of Guardian Judge-IV, Lahore. In the application, the address of Respondent No.2 in Lahore was given as the Criminal Petition No.1011 of 2017 4 address of the petitioner. It is alleged that Respondent No.2 never disclosed to the Guardian Court that the minors had left the country with their mother on 05.09.2016 with his consent. The case was fixed from time to time and notices were repeatedly issued to the petitioner. Not surprisingly, she was never served and therefore did not appear before the Guardian Court. 8. Having tricked the children through various contrived reasons to stay beyond 26.12.2016, on 03.01.2017, Respondent No.2 moved an application before the Guardian Court seeking permission to produce them in the Court to record their statements. The statements of the minors were accordingly recorded to the effect that they had no objection if their father was appointed as their Guardian. There is nothing on record to indicate that the children were ever informed or were aware of the nature of proceedings in which they had recorded their statements. It is apparent that they neither knew nor had any inkling about the ramifications and implications of such statements. At no stage, was the Court informed that the petitioner had already left for Canada and was living there. However, much belatedly i.e. on 03.03.2017, six months after the petitioner had left Pakistan with her children, Respondent No.2 moved an application before the Guardian Court, stating that the petitioner was no longer in Pakistan and sought permission to give her address in Canada. An additional prayer for his appointment as guardian of the property of minors was also made on the pretext of some property that he owned jointly with his Criminal Petition No.1011 of 2017 5 children. It has also been alleged that although the notice was sent to the petitioner at her address in Canada through courier service, it indicated that some matter was pending in the Court of Nazar Abbas Gondal, Civil Judge, Lahore which was unclear, deceptive, confusing and also gave a wrong case number. The guardianship matter was in fact pending before Guardian Court No.VII, Lahore. The notice did not provide any other details that could provide any indication to the petitioner regarding the nature of proceedings pending in Pakistan. 9. On account of non appearance of the petitioner, the Guardian Judge passed an ex parte order dated 04.04.2017 granting Respondent No.2 guardianship of the person and property of the minors Ghulam Qasim Dogar and Ghulam Jaffer Dogar. It is pertinent to mention here that despite an understanding that the children would return by 26.12.2016, they were not allowed to return and Respondent No.2 managed to keep them back on one pretext or the other. When the children did not return to Canada, the petitioner became anxious and started asking questions. Having not received satisfactory answers, she applied for a visa to visit Pakistan in January, 2017 as her Pakistan Origin Card (POC) had expired. It is alleged that Respondent No.2 obstructed or at least did not facilitate renewal of the POC of the Petitioner to keep her out of the country. In the meantime, the two children came to know about the order passed by the Guardian Judge and became restless and suspicious at not being allowed to return. They contacted their mother on Criminal Petition No.1011 of 2017 6 24.04.2017 and informed her accordingly. As soon as the petitioner received a visa, she travelled to Pakistan on 19.06.2017. She alleges that her repeated requests to see the children were declined. This prompted her to file a Habeas Corpus Petition under Section 491 read with Section 561-A, Cr.PC before the Lahore High Court, Lahore for recovery of her children. The children were produced before the High Court on 07.08.2017. The High Court inquired from them if they were under “detention” or “supervision” of any person to which they obviously responded in the negative. This prompted the learned High Court to dismiss the petition as non maintainable, vide order dated 16.08.2017. Hence, this petition. 10. The learned counsel for the petitioner submits that Respondent No.2 had manipulated the visit of his children to Lahore in December, 2016 and thereafter placed unlawful restrictions on them by not allowing them to return to Canada. He is therefore holding them in an unlawful and improper manner. She further submits that it is in the best interest and welfare of the minors that they be relieved of this trauma. She maintains that the children have been deprived of education, denied any direct contact with their mother and the forcible detention has caused serious disturbance to their lives. She further maintains that Respondent No.2 being the father was the natural guardian of the minors. There was no need for him to seek a declaration to this effect. He used the proceedings in the Guardian Court as a cover to deprive the petitioner of her children and to forcibly detain them in Criminal Petition No.1011 of 2017 7 Pakistan against their will. On instructions of her client, the learned counsel categorically stated that the wishes of the children be ascertained by this Court and in case, the children express a wish to stay in Pakistan she would withdraw the petition. 11. The learned counsel for Respondent No.2 has vehemently defended the impugned order. He submits that being the father of the children, Respondent No.2 was the best person to take decisions regarding their welfare and upbringing. He had tried to persuade the petitioner to return to Pakistan alongwith the children, but she had refused to do so. He maintains that Respondent No.2 had sent airline tickets to his children to return to Pakistan which they had done willingly. However, appropriate proceedings were initiated bona fide before the Guardian Court in order to avoid any legal complications. He further maintains that admittedly the matter is pending before the Guardian Court where an application moved by the petitioner for setting aside the ex parte order is already pending. Therefore, the question regarding custody and welfare of the minors should be left to be determined by the Court of competent jurisdiction after a fair trial and evidentiary hearing to enable the parties to put all requisite material before the Court. On the basis thereof, an informed decision can be made by the Guardian Court regarding the welfare and custody of the minors. He has vehemently argued that in these circumstances, the High Court was justified in refusing to exercise jurisdiction under Section 491, Cr.PC observing that the questions of custody Criminal Petition No.1011 of 2017 8 and welfare of the minors could more appropriately be determined by the Guardian Court. Responding to an assertion made by learned counsel for the petitioner that a petition under Section 7 of the Act, 1890 was not maintainable, he submits that there is no bar in the Guardian and Wards Act, 1890 that may prevent the father/natural guardian from seeking an order appointing him guardian of the person and property of the minors. In this context, he has placed reliance on Section 354 of Muhammadan Law by D.F. Mulla; Shabana Naz v. Muhammad Saleem (2014 SCMR 343); Jacob A. Chakramakal v. Rosy J. Chakramakal (1975) ILR 2Mad 384); Kamini Mayi Debi v. Bhusan Chandra (AIR 1926 Calcutta 1193); and Naziha Ghazali v. The State (2001 SCMR 1782). 12. We have heard the learned counsel for the parties and gone through the record with their assistance. Considering the peculiar facts and circumstances of this case, the following questions arise which have a direct bearing on the outcome of these proceedings:- i) Whether the petition under Section 7 of the Act, 1890 was maintainable; ii) Whether the petition before the High Court under Section 491 read with Section 561, Cr.PC was not maintainable; iii) What is the effect of the impugned order passed by the High Court; and iv) What order can be passed by this Court in the present proceedings? 13. As far as the maintainability of a petition under Section 7 of the Act, 1890 (Question No.i above) by a real Criminal Petition No.1011 of 2017 9 father is concerned, it appears that despite the fact that the father is a natural guardian, there is no bar in law that places any restriction on the natural guardian to approach a Court of competent jurisdiction to be declared as guardian of the person and property of the minors. It appears that such declaration provides incremental benefits and convenience in his transactions relating to the properties held in the name of the minors. This view is fortified by Section 354 of Muhammadan Law by D.F. Mulla as well as the following judgments:- i) Shabana Naz v. Muhammad Saleem (2014 SCMR 343); ii) Jacob A. Chakramakal v. Rosy J. Chakramakal (1975) ILR 2Mad 384); iii) Kamini Mayi Debi v. Bhusan Chandra (AIR 1926 Calcutta 1193); and iv) Naziha Ghazali v. The State (2001 SCMR 1782). 14. Having held that there is no bar on the father/natural guardian against obtaining a guardianship certificate, we may observe that the circumstances and bona fides of Respondent No.2 in obtaining such declaration/ certificate need to be examined keeping in view the peculiar facts of this case. In this context, the following factors are significant:- a) The children alongwith the petitioner were living in Pakistan with Respondent No.2 till 2009; b) It was on the wish and desire of Respondent No.2 that the family immigrated to Canada where the petitioner and all three children Criminal Petition No.1011 of 2017 10 obtained citizenship. On account of professional reasons, he did not seek citizenship but got Permanent Resident Status which allows him to enter and exit Canada at his convenience; c) From the material placed before us it appears that there was an understanding in the family that either Respondent No.2 would visit the family in Canada as and when he could or in the alternative, the petitioner alongwith the children would visit Pakistan during holidays; d) The above arrangement continued till 2016 when Respondent No.2 appears to have changed his mind and decided to bring the family back to Pakistan. However, by this time, the petitioner had taken up employment in Canada and the children had started attending Schools/Colleges at various levels in Canada and seven years had elapsed in the meanwhile. It has been asserted on behalf of the petitioner and not denied by the Respondent that the family is well settled and assimilated in the new environment; e) It appears that there was some resistance from the petitioner, her adult daughter and possibly the two children to permanently return to Pakistan for the reason that they had settled down in Canada and appear to be happy. However, in order to force them to come back to Pakistan, Respondent No.2 used devious and deceitful methods. On the promise that they would only be visiting their father for a short holiday and would be Criminal Petition No.1011 of 2017 11 allowed to return to Canada in December, 2016, the children came to Pakistan in good faith with the blessings of their mother. What neither the petitioner nor the children knew was that Respondent No.2 had other plans and had gone to great lengths to create a legal cover to support his actions; f) Respondent No.2 approached the Guardian Court without disclosing the exact facts, took pains to conceal the correct address of the petitioner, did not inform the Court that the daughter was already an adult and also withheld the fact that he had granted permission, in writing, to the children to return to Canada. The purchase of a 5 Marla plot in the joint names of Respondent No.2 and the two boys, was also, in our opinion a device, possibly under legal advice, to create grounds of appointment of Respondent No.2 as guardian of property of the minors and thus postponement of age of majority from 18 to 21 years. He got the orders in his favour without contest, ex parte and behind the back of the petitioner; and g) Initially, the petitioner was shown as residing at the house of Respondent No.2 in Lahore and at a belated stage her Canadian address was placed on record. However, the notice sent to the petitioner did not contain the requisite information which would have enabled her to get information about the matter pending before the Guardian Court and to instruct a lawyer to contest the matter on her behalf. The petitioner also appears to have taken advantage of the fact that she was not residing in Pakistan. Criminal Petition No.1011 of 2017 12 15. All the above factors point towards manipulation, deceit and lack of bona fides on the part of Respondent No.2. The application for appointment of guardian of the person and property of the minors was used for improper purposes in order to provide legal cover to the wishes and designs of Respondent No.2. We are therefore not willing to hold that the certificate under Section 7 of the Act, 1890 by itself and notwithstanding the facts and circumstances narrated above is a perfect answer and defence available to Respondent No.2 to assert a right to keep the children in Pakistan against their will and take unilateral decisions regarding their custody and other aspects of their lives, which have direct nexus with their welfare. In view of the foregoing discussion we find that the ex parte order/judgment of the Guardian Court, Lahore is not sustainable. 16. As regards Question No.ii above, we find that the petition under Section 491 read with Section 561, Cr.PC was indeed maintainable. Where the petitioner, who is the real mother of the children bona fide believed that the children had been removed from her custody by exercise of deception and trickery, and thereafter forced to stay in Pakistan against their will, she could not be precluded from approaching the High Court, which was not denuded of its jurisdiction under Sections 491 and 561 Cr.PC to provide relief to the petitioner. Reliance of the learned counsel for Respondent No.2 on Nadia Parveen v. Almas Noreen (PLD 2012 Supreme Court 758); Abdul Rehman Khakwani v. Abdul Majid Khakwani (1997 Criminal Petition No.1011 of 2017 13 SCMR 1480); and Naziha Ghazali v. The State (2001 SCMR 1782) to assert that resort to Section 491, Cr.PC can be made only when the children of tender age have been snatched recently and there is a real urgency in the matter is misplaced. We have perused the said judgments and find that they are distinguishable on facts and not be applicable to the specific facts and circumstances of this case as has elaborately been noted above. 17. This Court has on various occasions examined the question of exercise of jurisdiction by the High Court where the matter involves custody of minors while the matter is sub judice before the Guardian Court. In Ahmed Sami and 2 others v. Saadia Ahmed and another (1996 SCMR 268) at page 271, it was held that: “It is true that a Guardian Court is the final arbitrator to adjudicate upon the question of custody of child but this does not mean that in exceptional cases when a person who is holding the custody of a minor lawfully and has been deprived of the custody of minor has no remedy to regain the custody pending adjudication by the Guardian Court. In exceptional cases where the High Court finds that the interest and welfare of minor demanded that the minor be committed immediately to the custody of the person who was lawfully holding the custody of minor before he was deprived of the custody, the Court can pass appropriate order under section 491, Cr.P.C. directing restoration of the custody of minor to that person as an interim measure pending final decision by the Guardian Court.” 18. In Shaukat Masih v. Mst. Farhat Parkash and others (2015 SCMR 731), we held at page 734 that: “We have been informed that so far respondent No. 1 has not filed any appeal against the relevant order passed by the learned Guardian Judge nor any application has so far Criminal Petition No.1011 of 2017 14 been filed before the learned Guardian Judge seeking recall of the ex parte order and reconsideration of the matter on its merits. Be that as it may we find that through the impugned order passed by the High Court a minor girl has been given in the custody of her real mother and even if there are some questions regarding proper exercise of jurisdiction by the High Court in the matter still we would not like the little girl to be made a ball of ping pong and shuttle her custody during the legal battles being fought by those interested in her custody. Faced with this unfortunate situation we have decided to invoke this Court's jurisdiction under Article 187(1) of the Constitution of the Islamic Republic of Pakistan, 1973 which allows this Court to issue such directions, orders or decrees as may be necessary for doing complete justice in any case or matter pending before it. Invoking the said jurisdiction of this Court we set aside the order passed by the learned Guardian Judge, Shahkot, District Nankana Sahib on 24-7- 2014 and cancel the Guardianship Certificate of the said date and direct the learned Guardian Judge to consider the application submitted before him by the present petitioner regarding custody of the relevant minor as a pending application, to hear all the parties concerned, including the mother of the minor, and then to decide the matter of custody of the above mentioned minor afresh after attending to all the jurisdictional, legal and factual issues relevant to the controversy raised by the parties. During the interregnum the custody of the minor shall remain with her mother and the learned Guardian Judge shall attend to the request, if any, made regarding visitation rights.” 19. In Muhammad Khalil-ur-Rehman v. Mst. Shabana Rahman and another (PLD 1995 SC 633), this Court held on pages 638 and 639 that: “In view of the above observation, it is quite clear that in appropriate cases the Court under section 491, Cr.P.C. if it reaches the conclusion that a minor has been illegally removed from the custody of a person who was holding his custody lawfully, the Court is empowered under section 491, Cr.P.C. notwithstanding the provisions of Guardians and Wards Act to pass appropriate orders. We are, therefore, of the view that the jurisdiction of the Criminal Court is not barred under section 491, Cr.P.C. to pass Criminal Petition No.1011 of 2017 15 appropriate order with regard to custody of a minor who has been illegally removed from the custody of person, on account of the provisions of Guardians and Wards Act. … As earlier pointed out, the two provisions, namely section 491, Cr.P.C. and section 25 of the Guardians and Wards Act deal with two different situations and as such the question of ouster of jurisdiction of criminal Court under section 491, Cr.P.C. on account of provisions of section 25 or 12 of Guardians and Wards Act did not arise at all. There is no overlapping between the provision of section 491, Cr.P.C. and section 25 of the Guardians and Wards Act.” 20. In the case of Mst. Nadia Perveen v. Mst. Almas Noreen and others (PLD 2012 SC 758) we held at page 760 that: “It has consistently been held by this Court in the cases of Muhammad Javed Umrao v. Miss Uzma Vahid (1988 SCNIR 1891), Nisar Muhammad and another v. Sultan Zari (PLD 1997 SC 852), Mst. Khalida Perveen v. Muhammad Sultan Mehmood and another (PLD 2004 SC 1) and Naziha Ghazali v. The State and another (2001 SCMR 1782) that the matter of custody of minor children can be brought before a High Court under section 491, Cr.P.C. only if the children are of very tender ages they have quite recently been snatched away from lawful custody and there is a real urgency in the matter and also that in such a case the High Court may only regulate interim custody off the children leaving the matter of final custody to be determined by a Guardian Judge. In those cases this Court had repeatedly emphasized that in such matters the jurisdiction of a High Court under section 491, Cr.P.C. is to be exceptional and extraordinary case of real urgency keeping in view that even a Guardian Judge has the requisite powers of recovery of minor children and regulating their interim custody.” 21. Findings to the same effect have been recorded in Abdul Rehman Khakwani v. Abdul Majid Khakwani and 2 others (1997 SCMR 1480) and Mst. Khalida Parveen v. Muhammad Sultan Mehmood and another (PLD 2004 SC 1). Criminal Petition No.1011 of 2017 16 22. The Guardian Court is the final Arbiter for adjudicating the question of custody of children. However, where a parent holding custody of a minor lawfully has been deprived of such custody, such parent cannot be deprived of a remedy to regain the custody while the matter is sub judice before a Guardian Court. Therefore, in exceptional cases (like the instant case), where the High Court finds that the best interest and welfare of the minor demand that his her custody be immediately restored to the person who was lawfully holding such custody before being deprived of the same, the Court is not denuded of jurisdiction to pass appropriate orders under Section 491, Cr.PC directing that custody be restored to that person as an interim measure pending final decision of the Guardian Court. While the tender age of the minor is always a material consideration but it is not the only consideration to be kept in mind by the High Court. Other factors like best interest and welfare of the minor, the procedural hurdles and lethargy of the system, delays in finalization of such matters, the handicaps that the mother suffers owing to her gender and financial position, and above all the urgency to take appropriate measures to minimize the trauma, emotional stress and educational loss of the minor are equally important and also need to be kept in mind while granting or refusing an order to restore interim custody by the High Court. The two provisions of law namely Section 491, Cr.PC and Section 25 of the Guardian and Wards Act deal with two different situations. As such, the question of ouster of jurisdiction of the High Court on account of Criminal Petition No.1011 of 2017 17 provisions of Sections 12 or 25 of the Guardian and Wards Act or pendency of proceedings under the said provisions does not arise. There is no overlap between the two provisions as both are meant to cater for different situations, the first to cater for an emergent situation, while the latter to give more long term decisions regarding questions relating to guardianship of minors keeping in view all factors including their best interest and welfare. 23. We are not persuaded by the argument of the learned counsel for Respondent No.2 that the remedy under Section 491, Cr.PC is barred in view of the availability of an alternative remedy by way of approaching a Guardian Court of competent jurisdiction. This Court as well as the High Court in exercise of their powers under Section 491, Cr.PC have to exercise parental jurisdiction and are not precluded in all circumstances from giving due consideration to the welfare of the minors and to ensure that no harm or damage comes to them physically or emotionally by reason of breakdown of the family tie between the parents. It was with this object in mind that vide order dated 05.12.2017 we directed Respondent No.2 to produce the two children before us in chambers. We met the two boys aged 17½ and 13 years in chambers without the parents or their counsel being present. We talked to them in an informal and friendly atmosphere to determine their respective levels of maturity, the way they were handling their present situation and most importantly their wishes. The minors appeared to be well groomed, confident and mature boys for their age. They were visibly under stress and Criminal Petition No.1011 of 2017 18 did not come across as particularly happy. On gently being questioned by us, they clearly and in no uncertain terms stated that they were finding it hard to adjust in Lahore and would like to return to Canada to continue their education. They however stated that they loved their father very much and would be happy to return to Pakistan during holidays and also spend time with him if and when he came to Canada. They also informed us that they had been admitted to Lahore Grammar School where they had been unable to make friends, adjust to the new system and get into the flow of things socially or academically. They spent most of their time playing video games and watching movies at home and were missing school which was causing academic loss, mental stress and possibly emotional trauma. Although their movement was not entirely restricted, they found it better and safer to stay home most of the times. They had done this for the past almost one year. 24. The admitted facts and circumstances of the case, documents on record and our candid interview with the children, where neither of the parents or their counsel were present, lead us to conclude that the children are mature enough to make an informed and conscious decision regarding the place where they wish to live and receive education in the immediate future and the parent they want to be with for the time being. Keeping in view their educational, emotional and social needs, their wishes must be respected by the parents as well as this Court. Criminal Petition No.1011 of 2017 19 25. Our answer to the third question, “what is the effect of the impugned order passed by the High Court” is that the learned High Court has abdicated its jurisdiction and taken its hands off the case without giving it much thought or considering the specific facts and circumstances of the instant case. It has declined to exercise jurisdiction and relegated the parties to contest the matter before the Guardian Court where Respondent No.2 has already obtained an ex parte order under Section 7 of the Act, 1890. Although we have been informed that the petitioner has moved an application for setting aside the ex parte order, the matter is still pending and considering the ground realities, lethargy of the system, delaying tactics and procedural hurdles in disposal of matters of this nature, it is unfair to expect that the issue will be resolved any time soon. There are no easy answers or procedural shortcuts on the basis of which the legal and factual issues involved in this litigation can be resolved on a fast track basis. However, we have to be mindful of the fact that lives of two young men have been put on hold, while their parents battle it out, motivated by egos and/or their respective desires to ensure that the children grow up in a manner and environment considered suitable for them by one parent or the other. This situation requires an objective assessment by an impartial Arbiter acting in loco parentis, motivated by nothing but the objective of looking after and ensuring the best interest and welfare of the children. We therefore hold that in exceptional circumstances like these, we are not hampered or impeded by technical and procedural Criminal Petition No.1011 of 2017 20 hurdles from doing complete justice. Such powers are available to this Court under Article 187 of the Constitution of Islamic Republic of Pakistan, 1973. In appropriate cases where there is a real and imminent danger of physical, emotional or any other harm coming to a minor, this Court would not be shy of exercising powers in its parental jurisdiction coupled with its constitutional mandate to do complete justice to safeguard and secure the interests of the minors. Reliance is placed on Shaukat Masih v. Farhat Parkash (2015 SCMR 731) and Khalida Perveen v. Muhammad Sultan Mehmood (PLD 2004 Supreme Court 1). 26. Now we advert to Question No.iv above, “what order can be passed by this Court in the present proceedings”. As stated above, considering the specific facts and circumstances of the case, we find that the High Court erred in law in failing to determine the real wishes of the children. It confined itself to asking one or two very routine generic and generalized questions which were neither phrased nor designed to elicit the whole truth or determine the real wishes of the children. We get the distinct impression that the High Court acted with undue haste despite the importance and delicacy of the issue before it. It lost sight of the fact that in suitable cases it has ample powers under the law as well as the Constitution to protect and safeguard the interests of minors to ensure that as far as possible their physical safety, emotional well being and welfare is secured and protected after a balanced and dispassionate assessment of the situation. Unfortunately, the learned High Court shied away Criminal Petition No.1011 of 2017 21 from this legal and constitutional obligation for reasons best known to it. 27. In view of the foregoing, we set aside the ex parte order/judgment dated 04.04.2017 passed by the Guardian Court, Lahore against the petitioner. All administrative actions taken and orders passed by administrative authorities/State functionaries as a result of orders passed by the Guardian Court or on the basis of application(s) moved by any of the Respondents are also set aside, recalled and declared null and void. The guardianship petition shall be deemed to be pending before the said Court. It shall grant reasonable time and opportunity to the petitioner to file her replies/written statements. Thereafter, the Court shall proceed to decide the matters strictly in accordance with law. We further direct that as an interim measure, the custody of the two children namely Ghulam Qasim Dogar (aged about 17 years) and Ghulam Jaffer Dogar (aged about 13 years) shall be handed over to the petitioner, who is their real mother. 28. In view of the above discussion, we convert this petition into an appeal and allow the same. The impugned judgment of the High Court dated 16.08.2017 is set aside. Judge Judge Announced by me in open Court At Islamabad on _______________. Judge Criminal Petition No.1011 of 2017 22 APPROVED FOR REPORTING ZR/*

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CRIMINAL PETITION NO.1017/2020 (Against order dated 05.08.2020 passed by Lahore High Court, Rawalpindi Bench in Crl. Misc. No.1378-B/2020) Sher Afzal : … Petitioner(s) Versus The State and another : Respondent(s) … For the Petitioner(s) : Mr. Muhammad Ikhlaque Awan, ASC For the State Mr. Muhammad Usman DPG For the Complainant Nemo Date of Hearing : 12.11.2020 ORDER SAYYED MAZAHAR ALI AKBAR NAQVI, J: - Petitioner has assailed the jurisdiction of this Court under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 calling in question the order of Single Bench of Lahore High Court, Rawalpindi Bench dated 05.08.2020 in Crl. Miscellaneous No.1378-B/2020 declining post arrest bail to the petitioner with prayer to grant the same in the interest of safe administration of criminal justice. 2. The facts prompted to file this petition are that one Mst. Seemab Wasif lodged a crime report bearing No.234/2020 dated 20.05.2020 offence u/s 302/34 PPC registered with Police Station Kahota District Rawalpindi. As per contents of the crime report, it is mentioned that the petitioner alongwith other co-accused in furtherance of their common intention committed the murder of Wasif Khan and Asim Khan by resorting of indiscriminate firing by co-accused namely Shahid and Shafique. The allegation against the petitioner is merely a proverbial “Lalkara” whereas he is also assigned the role of causing kicks to both the Criminal Petition No.1017/2020 Sher Afzal Vs, The State and another 2 deceased while they were lying on the ground after sustaining fire shots. The petitioner applied for post arrest bail before the court of first instance which was entrusted to learned Additional Sessions Judge, Rawalpindi. The learned trial court dismissed the application of the petitioner vide order dated 20.07.2020. The petitioner assailed the order before learned High Court, Rawalpindi Bench through moving an application bearing Criminal Miscellaneous No.1378-B of 2020. The learned Single Bench of High Court dismissed the same vide detailed order dated 05.08.2020, hence, the instant petition for the grant of post arrest bail. 3. At the very outset, it has been argued by the learned counsel for the petitioner that petitioner has been falsely roped in this case against actual facts and circumstances. Contends that the petitioner is an old man, suffering from ailment and as such he is physically unable to perform the role ascribed to him. Further contends that son of the petitioner namely Shahid who is one of the main perpetrator of the occurrence beside Muhammad Shafique has already been disowned by the petitioner through a proclamation which was published in newspaper much prior to the occurrence. Lastly it has been contended that co-accused Mst. Zeenat Bibi to whom the role of kicking the dead body is also assigned was granted pre-arrest bail by the learned trial court, therefore, the petitioner is also entitled for concession of bail on the plea of consistency. 4. On the other hand, learned Law Officer has controverted the contentions raised by the learned counsel for the petitioner. The crux of the arguments advanced by the learned Law Officer is that the petitioner is duly nominated in the crime report with special allegation of raising commanding “Lalkara”. Further contends that two persons were done to death in a brutal manner against a definite motive. Contends that the case of co-accused Mst. Zeenat Bibi is distinguishable, hence, petitioner cannot Criminal Petition No.1017/2020 Sher Afzal Vs, The State and another 3 claim bail on the plea of consistency. Contends that the petitioner is not entitled for the relief sought for. 5. We have heard the learned counsel for the parties and gone through the record. It is most salutary principle of law that each criminal case has its own facts and circumstances and it cannot coincide with others. In the instant case, there is no denial to this fact that the petitioner is nominated in the crime report wherein he is assigned role of raising “Lalkara” whereas the co-accused of the petitioner resorted to indiscriminate firing with their respective weapons causing death of Wasif Khan and Asif Khan. Undeniably, the accusation levelled against the petitioner is twofold:- (i) Raising of “Lalkara”. (ii) Kicking the dead bodies after the occurrence. Admittedly the petitioner is aged about 65 years and he is also suffering from ailment. Close scrutiny of the accusation levelled by the prosecution, no overt-act is ascribed to the petitioner except the proverbial “Lalkara. The question which require determination is whether the “Lalkara” raised by the petitioner was commanding in nature or that was mere a proverbial “Lalkara”. During the course of proceedings before us, it has been vehemently argued by the learned counsel for the petitioner that the petitioner cannot be saddled with the responsibility of sharing common intention with the co-accused on the ground that the petitioner was not enjoying good relationing with co-accused especially Shahid, because of the reason that a proclamation in this regard was already published in the newspaper disassociating itself from all affairs of said Shahid and he was also deprived from movable and immovable property owned by the petitioner. This Court vide order dated 23.10.2020 persuaded the learned Criminal Petition No.1017/2020 Sher Afzal Vs, The State and another 4 counsel to offer his good offices for the production of said Shahid who is fugitive from law. The learned counsel at the strength of the proclamation published in the newspaper has stated that as the petitioner is behind the bar and he has no access to his son with whom he has already strained relations, therefore, it is not within his command to produce him before the police. Keeping in view the arguments of the learned counsel and law on the subject, as the proclamation was issued much prior to the lodging of the crime report; question qua its being a commanding “Lalkara” or otherwise it seems to be determined by the learned trial court after recording of evidence. As far as second limb of the accusation is concerned, co-accused with similar allegation was extended pre-arrest bail by the learned trial court; hence, the petitioner is entitled for the same on this score alone. Liberty of a person is a precious right which has to be resolved in favour of the accused being favourite child of law, denial of same require extreme compelling reasons. 6. Keeping in view the facts and circumstances narrated above and law on the subject, we are of the considered view that the case of the petitioner is of further inquiry fully covered u/s 497(2) Cr.PC entitling for concession of bail. As a consequence, leave to appeal is granted in the instant petition while converting it into appeal and the same is allowed. The petitioner shall be released on bail subject to his furnishing bail bonds in the sum of Rs.2,00,000/- with one surety in the like amount to the satisfaction of the learned trial court/Duty Judge. JUDGE JUDGE Islamabad, the 12.11.2020 Approved for reporting *Athar

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.1023/2020 (Against the order of Peshawar High Court, Peshawar dated 17.08.2020 passed in Crl.M.BA No.2275-P/2020) Jahanzeb and others : … Petitioner(s) Versus The State through AG KPK Peshawar and another : … Respondent(s) For the Petitioner(s) : Asad Ullah Khan Chamkani, ASC For the (State) : Ayesha Tasneem, ASC Complainant in person. Date of Hearing : 25.11.2020 …. ORDER SAYYED MAZAHAR ALI AKBAR NAQVI, J: - Petitioners have 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 Peshawar High Court, Peshawar dated 17.08.2020 in Crl. M BA No.2275-P/2020 declining post arrest bail to the petitioners with prayer to grant the same in the interest of safe administration of criminal justice. 2. As per allegation contained in the crime report bearing FIR No.310/2020 dated 09.05.2020 u/s 302, 324, 34 PPC registered with police station Daudzai, District Peshawar, it is disclosed that when complainant alongwith his father Ajmal Khan and cousin Asad Ullah were busy in their fields cutting their crop through tractor/cutter, in the meanwhile petitioners alongwith Khan Zaib attracted to the place of occurrence and resorted to indiscriminate firing. It is specifically mentioned that fire shot made by Khan Zaib had hit the father of the complainant who Criminal Petition No.1023/2020 Jahanzeb and others Vs, The State etc 2 succumbed to the injury when he was being evacuated to hospital. The motive behind the occurrence is dispute over property. 3. At the very outset, it has been argued by the learned counsel for the petitioners that the petitioners have been falsely roped in this case against the actual facts and circumstances. Further contends that wider net has been thrown by the prosecution while involving two brothers and father in the instant case. Contends that medico legal report clearly reflect that there is only one injury sustained by the deceased which is attributed to co-accused who is fugitive from law. Contends that criminal liability cannot be shifted from one accused to another. Lastly it has been argued that as no recovery of any weapon has been affected from the petitioners therefore, the case of the petitioners squarely fall within the ambit of section 497(2) Cr.P.C. entitling them concession of post arrest bail. 4. Learned counsel appearing on behalf of the State has vehemently opposed the contention raised by the learned counsel for the petitioners. It is argued that all the accused persons in furtherance of their common intention attracted to the place of occurrence, hence, they are jointly liable for the offence committed by them. It is further argued that parties are known to each other prior to occurrence, hence, there is no chance of mis-identification, however, frankly conceded that the post mortem report reveals that there is only one injury available on the body of deceased. Finally it has been argued that the petitioners are vicarously liable for the murder of Ajmal Khan, therefore, they are not entitled for the concession of bail. 5. We have heard the learned counsel for the parties and gone through the record. No doubt, there are certain facts which are not denied by either of the party. This occurrence has taken place in broad daylight Criminal Petition No.1023/2020 Jahanzeb and others Vs, The State etc 3 whereas the parties are known to each other being close relatives; hence, there is no question qua the identity of the accused by the prosecution witnesses. The motive behind the occurrence is also not denied, however, the questions which require judicial scrutiny by this Court are: - (i) Sharing common intention. (ii) Role ascribed. (iii) Recovery of weapon as alleged. (iv) Tentative assessment at this stage by this Court. Perusal of the record placed before us, it is an admitted fact that the allegation against the petitioners is that they resorted to indiscriminate firing without causing any injury to anyone; however, the deceased sustained only a single shot whereas none of the prosecution witnesses sustained even a scratch. It is no body’s case that the prosecution witnesses escaped from the firing of the petitioners due to some hurdle or safety measure. The occurrence has taken place in open and if there would have been any intent at the part of the petitioners, there was nothing which could restrain them from committing the occurrence on broader spectrum. During the course of investigation though recovery of four empties of pistol .30 bore and three empties of Kalashnikov were recovered from the spot but as no weapon was affected from the petitioners during the course of investigation, therefore, mere recovery of empties would be a question to be resolved by the trial court after recording of prosecution evidence. The contention of the learned counsel that the case of the petitioners squarely fall within the ambit of section 497(2) Cr.P.C. is concerned, the same is reproduced as under:- 497. When bail may be taken in cases of non-bailable offence. (1) ………. (2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are no reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided. (3) ……. Criminal Petition No.1023/2020 Jahanzeb and others Vs, The State etc 4 (4) ……. (5) ……. Perusal of the aforesaid provision reveals the intent of the legislature disclosing pre-condition to establish the word “guilt” against whom accusation is levelled has to be established on the basis of reasonable ground, however, if there exists any possibility to have a second view of the material available on the record then the case advanced against whom allegation is levelled is entitled for the relief in the spirit of section 497(2) Cr.P.C. In the instant case, as no overt act is ascribed to the petitioners except the allegation of ineffective firing not supported by any recovery of weapon and as such the recovery of crime empties from the place of occurrence has no legal sanctity, therefore, the facts and circumstances narrated above brings the case of the petitioners of further inquiry falling within the ambit of section 497(2) Cr.P.C. entitling them for the concession of bail. 6. As a consequence, leave to appeal is granted in the instant petition while converting it into appeal and the same is allowed. The petitioners shall be released on bail subject to their furnishing bail bonds in the sum of Rs.1,00,000/- each with one sureties each in the like amount to the satisfaction of the learned trial court/Duty Judge. JUDGE JUDGE JUDGE Islamabad/25.11.2020 Not approved for reporting *Athar*

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MUSHIR ALAM MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CRIMINAL PETITION NO.1029/2020 (Against the judgment of the Peshawar High Court (Bannu Bench) dated 06.08.2020 passed in Cr.MBA No.381-B/2020) Sajid : … Petitioner(s) Versus Samin ur Rehman (deceased) through his father Gul Jawab Khan and others : … Respondent(s) For the Petitioner(s) : Pir Liaqat Ali Shah, ASC Syed Rifaqat Hussain Shah, AOR For the Respondent(s) : Gul Jawab Khan, Respondent No.04 in person For the (State) : Ms. Tehmina Mohibullah, ASC/State Counsel Mr. Muhammad Nauroz SI, Loyi Daraz Khan (Complainant) Date of Hearing : 21.10.2020 …. ORDER SAYYED MAZAHAR ALI AKBAR NAQVI, J: - Criminal petition for leave to appeal under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 against the judgment dated 06.08.2020 passed by Peshawar High Court (Bannu Bench) in Cr.MBA No.381-B/2020 with the prayer to grant leave against the order and to release the petitioner on bail in the interest of justice. 2. The petitioner was nominated in case bearing FIR No.22/2020 dated 23.05.2020 offence u/s 302/324/34 PPC, registered with Police Station Razmak, Tribal District North Waziristan. As per allegation contained in the crime report, it is alleged that petitioner alongwith 05 others attacked the complainant party causing Criminal Petition No.1029/2020 Sajid Vs, Samin ur Rehman (deceased) & others 2 death of Samin-ur-Rehman and Jameel-ur-Rehman whereas Ashiq-ur- Rehman, Shafi-ur-Rehman, Ihsan Ullah, Amin and Gul Jawab sustained injuries. The motive behind the occurrence is previous enmity between the parties. The petitioner was taken into custody by the police. He applied for post arrest bail before the learned trial court which was dismissed vide order dated 20.07.2020. The same was agitated before learned Peshawar High Court (Bannu Bench) through Crl.MBA No.381-B/2020 which too met the same fate vide order dated 06.08.2020. Hence, the instant petition. 3. The crux of the arguments advanced by the learned counsel for the petitioner are that admittedly, the complainant is not eye-witness of the occurrence and even no specific allegation mentioned by the complainant while lodging crime report. Contends that one of the deceased Jameel-ur-Rehman has died of natural death. The findings recorded by the doctor while conducting post-mortem examination, he has categorically stated that no apparent sign of wound over the body of the deceased was observed. However GCS (Glasgow Coma Scale) was scored to be 7/15. Contends that other co-accused sustained stab wound which is not specifically ascribed to any person nominated in the crime report. Contends that all the injured PWs sustained minor injuries. Contends that the petitioner himself sustained injuries during the occurrence but this aspect has been suppressed by the prosecution. 4. On the other hand, learned law officer appearing on behalf of the State has argued that the instant occurrence has taken place in a Tribal Area however the matter was reported to the police within half an hour. Contends that the promptness qua recording of FIR, vanish any chance of deliberation and consultation. Contends that the statement of petitioner was recorded by the Investigating Officer as counter version and further proceedings were carried out in response to his version. The Criminal Petition No.1029/2020 Sajid Vs, Samin ur Rehman (deceased) & others 3 learned State Counsel however frankly conceded that solitary injury caused to one of deceased is not ascribed to any accused in the crime report. Finally argued that co-accused of the petitioner are still at large, therefore, petitioner is not entitled for the concession of bail. 5. We have heard the learned counsel for the parties and gone through the record. Although, it is an admitted fact that the petitioner is nominated in the crime report which is lodged with promptitude. As per contents of the crime report, two persons were done to death whereas five sustained minor injuries. The mode and manner of commission of offence is generalized in nature. It does not specify any accused of causing any injury either to any deceased or injured PWs. Even the weapons used by the accused is not described in the crime report. The statement of prosecution witnesses were recorded on 23.05.2020. The perusal of statements of all the prosecution witnesses, it reflects that those are recorded in the same pattern as in the crime report. Even during the course of investigation, nothing was brought forth contrary to earlier stance of the complainant and other prosecution witnesses. As far as medical reports are concerned, perusal of the post-mortem report to the extent of one of the deceased Jameel-ur-Rehman, the doctor has specifically given the finding that the deceased had no visible injury on his person which could have been observed by the doctor at the time of conducting autopsy, even against the column of “cause of death” the above observation is incorporated. However doctor has specifically mentioned that GCS (Glasgow Coma Scale) was 7/15 which otherwise shows very poor response of consciousness of said Jameel-ur-Rehman who ultimately expired. The other deceased Samin-ur-Rehman had sustained only one stab wound at the epigastric region. While the rest of Criminal Petition No.1029/2020 Sajid Vs, Samin ur Rehman (deceased) & others 4 PWs sustained minor injuries that too without any specification. The petitioner himself claimed that he was given beating by Gul Jawab and Amin. The Investigating Officer recorded his statement u/s 161 Cr.PC on 26.05.2020. He was further examined by the Magistrate u/s 164 Cr.PC on 25.06.2020. Police recorded counter version of the accused however it has been pointed out before us that pre-arrest bail of both accused (Gul Jawab & Amin) nominated by the petitioner were granted pre-arrest bail vide order dated 20.07.2020 by the learned ASJ-I, North Waziristan at Bannu. The aforesaid aspect bring the case of prosecution squarely a case of two versions attracting provision of section 497(2) Cr.PC. Even during course of investigation, nothing was recovered being incriminating to strengthen the prosecution version. The contention raised by the learned law officer that co-accused of the petitioner are still still absconder, has no legal sanctity. It is now settled by this Court that the criminal liability cannot be shifted from one person to another merely on the ground that co-accused are fugitive from law otherwise basic law is bail not jail. 6. Keeping in view the facts and circumstances narrated above and law on the subject, we are of the considered view that the case of the petitioner is of further inquiry fully covered by section 497(2) Cr.PC entitling for concession of bail. As a consequence, leave to appeal is granted in the instant petition while converting it into appeal and the same is allowed. The petitioner shall be released subject to his furnishing bail bonds in the sum of Rs.5,00,000/- with one surety in the like amount to the satisfaction of the learned trial court/Duty Judge. JUDGE JUDGE Islamabad, the/21.10.2020 Approved for reporting *Syed Rashid Maqsood*

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.103-P/2011 (Against the judgment dated 21.9.2011 of the Peshawar High Court Peshawar passed in Cr.A. No.621/2010) Nazir Jan …Petitioner(s) Versus Sail Khan and another …Respondent(s) For the Petitioner(s): Mr. Astaghfirullah, ASC (with permission) For the Respondent(s): N.R. Date of hearing: 28.6.2021 ORDER Qazi Muhammad Amin Ahmed, J.- Sial Khan, respondent, is in the array of the accused, in a case of homicide wherein Noora Jan deceased 55/56 was shot dead at 7:00 p.m. on 9.9.1989 within the precincts of Police Station Doaba; the deceased received two fire shots on his chest, attributed to the respondent alongside Pirat Khan, since convicted; the latter came up with a botched cross-version, registered vide separate First Information Report of even date. The learned trial Judge held Pirat Khan responsible for both shots to the deceased and proceeded to acquit three co-accused including the respondent vide judgment dated 28.09.1992, set aside by the Peshawar High Court vide judgment dated 20.12.1993 whereby the case was remanded for decision afresh after affording opportunity of hearing to the both sides. Pirat Khan’s conviction was maintained, however, he was sentenced to imprisonment for life; the co-accused barring the respondent were again acquitted from the charge and in view of respondent’s absence, he was declared proclaimed offender vide judgment dated 26.06.1994; upon his arrest, he was tried and ultimately acquitted by the trial Court vide judgment dated 19.06.2010, upheld by the High Court vide impugned judgment dated 21.09.2011, vires whereof, are being assailed primarily on the ground that his case being at par with the convicted co-accused Criminal Petition No.103-P/2011 2 Pirat Khan, there was no occasion for the courts below to draw any distinction so as to let him off the hook. 2. Heard. Record perused. 3. The respondent was first acquitted by the trial Court way back on 28.09.1992; notwithstanding the fact that the State did not opt to challenge his acquittal, the High Court remanded the entire case while taking the respondent as well as the convicted co-accused on board in the absence of any appeal pending before it. Statute provided appeal against acquittal to the complainant or an aggrieved person by amending the Code of Criminal Procedure, 1898 through the Act XX of 1994 Code of Criminal Procedure (Second Amendment) Act, 1994, notified on 14th November, 1994 and, thus, there was no statutory basis for respondent’s subsequent prosecution, though resulting into his acquittal. The error has duly been noticed by the High Court in the impugned judgment. Even otherwise, trial court’s analysis whereunder the respondent was acquitted from the charge presents a possible view that does not call for interference. Petition fails. Leave declined. Judge Judge Peshawar, the 28th June, 2021 Not approved for reporting Azmat/- Criminal Petition No.103-P/2011 3

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE IJAZ ULAHSAN MR. JUSTICE MUNIB AKHTAR MR. JUSTICE SAYYED MAZAHAR ALl AKBAR NAQVI CRIMINAL PETITION NO. 103-P OF 2022 (On appeal against the order dated 29.04.2022 passed by the Peshawar High Court, Peshawar in Cr.MBA No. 1033-P/2022) Abdul Wahid Petitioner Versus The State and another Respondent (s) For the Petitioner(s): Mr. Abdul Fayyaz, ASC (via video link from Peshawar) For the State: Ms. Aisha Tasneem, State counsel Mr. Mukhtiar Khan, Inspector For Respondent No.2: Mr. Hussain Ali, ASC (via video link from Peshawar) Date of Hearing: 27.07.2022 ORDER SAYYED MAZAHAR ALl AKBAR NAQVI. J. Through the instant petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed the order dated 29.04.2022 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. 1330 dated 23.10.2021 under Sections 302/324/109 PPC at Police Station Sarband, District Peshawar, in the interest of safe administration of criminal justice. 2. Briefly stated the prosecution story as alleged in the crime report is that the complainant along with his two brothers lkram and Asad was sitting in his place of work when suddenly one unknown person while armed with pistol came there and opened fire on them, which landed on different parts of I CRIMINAL PEifTION No.103-P Of 2022 -: 2 their bodies. Due to the fire shots, the brother of the complainant lkram died in hospital whereas the complainant and his other brother namely Asad sustained several injuries. On 22.11.2021, the petitioner was nominated as accused by the complainant through his supplementary statement recorded under Section 164 Cr.PC. After his arrest, the petitioner approached the learned Trial Court as well as the High Court for post-arrest bail but his bail petitions stood dismissed. Hence, this petition seeking post-arrest bail. 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 was not named in the FIR and he was belatedly nominated by the complainant through supplementary statement but no source of information was disclosed. Contends that the description of the assailant has also not been given in the crime report. Contends that no recovery has been affected from the petitioner. Contends that the six crime empties collected from the place of occurrence were found fired from different weapons. Contends that the so- called interview of the petitioner given to a TV channel has no evidentiary value in the eyes of law. Lastly contends that the petitioner being innocent deserves to be released on bail in the interest of justice. 4. Learned State counsel very frankly did not oppose the contentions raised by the learned counsel for the petitioners, rather supported the same. S. On the other hand, learned counsel for the complainant vehemently defended the impugned order. He contended that the petitioner has specifically been nominated by the complainant through his supplementary statement. Contends that the complainant has no previous enmity with the petitioner to falsely involve him in the case. Contends that the petitioner himself made a statement of his guilt in a TV interview given in the jail premises, which is a solid piece of evidence, therefore, he does not deserve any leniency from this Court. 6. We have heard learned counsel for the parties at some length and have perused the available record with their able assistance. CRIMINAL PETITION NO.103-P OF 2022 MR There is no denial to this fact that the petitioner was not nominated in the crime report. Even the complainant while lodging the FIR had not given the description of the assailant regarding his body structure, age, height and other antecedents etc. However, after the lapse of about one month, the complainant preferred to make statement under Section 164 Cr.P.C. wherein the petitioner was cited as the assailant. However, we are of the view that veracity of statement of complainant under Section 164 Cr.P.0 requires legal analysis on the ground (i) it is delayed by one month, (ii) no source of information has been disclosed, (iii) no tangible material has been collected during the course of investigation, & (iv) recovery of empties of different bore brings the case within the ambit of further probe. It has been frankly admitted by the learned state counsel that no recovery has been affected from the petitioner rather the six empties collected from the place of occurrence were found fired from different weapons, which reflects that the occurrence has been committed by more than one person. So far as the interview of the petitioner wherein he allegedly confessed his guilt is concerned, the same prima fade has no evidentiary value as neither the maker of the video has been cited as a witness in the calendar of witnesses nor the forensic test of the said video has been conducted. This Court in the case of lshtiag Ahmed Mirza Vs. Federation of Pakistan (PLD 2019 SC 675) has candidly held that such kind of alleged confessionary video is not beneficial to the concerned party unless it is properly produced before the court of law, its genuineness is established and then the same is proved in accordance with law for it to be treated as evidence in the case. The Court further held that with the advancement of science and technology, it is now possible to get a forensic examination, audit or test conducted through an appropriate laboratory so as to get it ascertained as to whether an audio tape or a video is genuine or not and as such examination, audit or test can also reasonably establish if such audio tape or video has been edited, doctored or tampered with or not because advancement of science and technology has also made it very convenient and easy to edit, doctor, superimpose or photoshop a voice or picture in an audio tape or video, therefore, without a forensic examination, audit or test, it is becoming more and more unsafe to rely upon the same as a piece of evidence a court of law. However, we do not want to comment further on this aspect CRIMINAL PETITION NO.103-P OF 2022 -. 4 of the matter as it may prejudice the case of either of the parties during trial. It has been informed by the State counsel that statements of two prosecution witnesses have been recorded. On our specific query, learned counsel for the complainant admitted that the witnesses whose statements have been recorded are formal witnesses and as such the bulk of the evidence is still to be recorded by the Trial Court. The petitioner is behind the bars for the last more than eight months. This Court has time and again held that liberty of a person is a precious right, which has been guaranteed under the Constitution of Islamic Republic of Pakistan, 1973 and the same cannot be curtailed on trump up charges unless the same is proved to the hilt by the court of competent jurisdiction. Keeping in view the peculiar facts and circumstances of the present case, no useful purpose would be served by keeping the petitioner behind the bars for an indefinite period till the conclusion of the trial. 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.PC. 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 dated 29.042022. 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 4 Trial Court. Islamabad, the 27" of July, 2022 Approved For Reporting iltIItt1l,I

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. 104-P OF 2023 (On appeal against the order dated 19.06.2023 passed by the Peshawar High Court, Peshawar in Crl.Misc. BA No. 1706-P/2023) Said Nabi … Petitioner Versus Ajmal Khan and another … Respondents For the Petitioner: Mr. Shabbir Hussain Gigyani, ASC For the State: Mr. Altaf Khan, Addl. AG. KPK For the Complainant: Mr. Suleman, son Date of Hearing: 21.09.2023 ORDER SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through the instant petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed the order dated 19.06.2023 passed by the learned Single Judge of the learned Peshawar High Court, Peshawar, with a prayer to grant post-arrest bail in case registered vide FIR No. 929 dated 23.10.2018 under Sections 302/324/427/148/149/337-A(ii)/337-F(ii) PPC at Police Station Nowshera Kalan, in the interest of safe administration of criminal justice. 2. Briefly stated the prosecution story as narrated in the crime report is that on 23.10.2018, the complainant Ajmal Khan along with his sons Jibran and Suleman and brother-in-law namely Fateh Khan were returning home after attending court proceedings. They were estopped by the petitioner and his co-accused, who started firing at them, as a result Criminal Petition No. 104-P/2023 2 whereof, Jibran was hit by a bullet and died at the spot while the complainant, Suleman and Fateh Khan sustained injuries. 3. At the very outset, it has been argued by learned counsel for the petitioner that the petitioner has been falsely roped in this case against the actual facts and circumstances. Contends that only a general role of firing has been attributed to the petitioner. Contends that the two co-accused of the petitioner, who were ascribed the similar role, have been acquitted by the court of competent jurisdiction whereas three out of seven were acquitted on the basis of compromise arrived, as such, the petitioner deserves the premium of post-arrest bail on the basis of these facts. Contends that merely the absconsion of an accused cannot be deemed as the proof of his guilt. Lastly contends that the learned High Court while declining bail to the petitioner has not followed the guidelines issued by superior Courts for the safe administration of criminal justice, therefore, the same may be set at naught and the petitioner may be granted bail. 4. On the other hand, learned Law Officer assisted by the son of the complainant opposed the petition by contending that the petitioner has specifically been nominated in the crime report and he remained absconder for a considerable period of time, therefore, he does not deserve any leniency from this Court. 5. We have heard learned counsel for the parties at some length and have perused the available record with their able assistance. 6. As per the contents of the crime report, the allegation against the petitioner is of generalized nature wherein it is alleged that he along with co-accused launched an attack on the complainant party and resorted to indiscriminate firing due to which one person lost his life whereas three sustained injuries. This Court is conscious of the fact that the occurrence has taken place when the complainant party was returning back home after attending Court proceedings in District Courts Nowshera. Criminal Petition No. 104-P/2023 3 However, this aspect of the prosecution case when juxtaposed with the subsequent events, which took place at a belated stage when two co- accused of the petitioner, who were ascribed similar role, have been acquitted by the court of competent jurisdiction after fulfilling all the legal requirements whereas three accused out of the seven have been acquitted on the basis of compromise between the parties, it shows that the bulk of the prosecution case has already been decided by the court of competent jurisdiction. After having gone through the impugned judgments passed by the learned two courts below, we are of the view that the only allegation against the petitioner that remains in the field is that he remained absconder for five years. No doubt that abscondence does constitute a relevant factor when examining question of bail as it is held by this Court in The State Vs. Malik Mukhtar Ahmed Awan (1991 SCMR 322) but this aspect has been subsequently dealt by this Court and it was held that the same has not to be considered in isolation to keep a person behind the bars for an indefinite period. It is settled by this Court that a person who is named in a murder case, rightly or wrongly, if becomes fugitive from law, his conduct is but natural. Reliance is placed on Rasool Muhammad Vs. Asal Muhammad (PLJ 1995 SC 477). This aspect was further elaborated by this Court in another judgment reported as Muhammad Tasaweer Vs. Hafiz Zulkarnain (PLD 2009 SC 53). We have been informed that nothing incriminating has been recovered from the possession or at the pointation of the petitioner. The only distinguishing feature, which was in field was nothing but the absconsion of the petitioner, which has already been elaborated above. In these circumstances, coupled with the fact that the case of the petitioner is at par with the co-accused, since acquitted, the petitioner has made out a case for concession of bail. 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 Criminal Petition No. 104-P/2023 4 learned Trial Court. Before parting with the order, we may observe that the observations made in this order are tentative in nature and would not prejudice the proceedings before the Trial Court. JUDGE JUDGE JUDGE Islamabad, the 21st of September, 2023 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Faisal Arab Mr. Justice Sajjad Ali Shah CRIMINAL PETITION NO.105-K OF 2020 (Against the order dated 19.05.2020 of the High Court of Sindh, Karachi passed in Criminal Bail Application No.131 of 2020) Sidra Abbas …Petitioner(s) Versus The State and another …Respondent(s) For the Petitioner(s): Mr. Faisal Siddiqui, ASC For the State: Mr. Hussain Bux Baloch, Additional Prosecutor General For Respondent No.2: Mr. Fareed Ahmed A. Dayo, ASC Date of Hearing: 10.09.2020 … ORDER SAJJAD ALI SHAH, J.- The respondent, Adil Zaman, accused of Crime No.382/2019 under Section 302/34 PPC registered at Police Station Darakhshan, Karachi was declined post-arrest bail by the Court of first instance for the following reasons:- “Complainant Mst. Sidra Abbas has alleged in FIR that on the evening/night of 09.07.2019 she was available at her house when at about 2038 wife of PW Umer Rehan via phone informed her that Mureed Abbas had been shot by accused Atif Zaman at his office, on that complainant reached at spot and found her husband in pool of blood to whom she with help of her father-in-law shifted to JPMC Hospital for treatment where MLO declared the Mureed Abbas dead. Complainant further alleged in FIR that accused Atif Zaman had also committed murder of one Khizer Hayat on the same night. In FIR, motive of accused Atif Zaman behind murders was stated to be Criminal Petition No.105-K of 2020 -: 2 :- monetary dispute amongst deceased and accused Atif Zaman. Per averments of FIR, the complainant was not present at spot at the time of both alleged incidents of murders, therefore, allegations against the accused are required to be ascertained through the material/evidence collected during investigation. After lodgment of First Information Report, IO had recorded 161 Cr.P.C. statements of OW Umer Rehan and Usama, who were present at the office accused Atif Zaman at the time of occurrence, and both PWs in their 161 Cr.P.C. statements stated that the present applicant/accused was accompanied with accused Atif Zaman rather caught hold of PW Umer Rehan when he beseeched for life. Likewise the witnesses of the incident of murder of Khizer Hayat namely Imtiaz and Muhammad Ilyas in their 161 Cr.P.C. statements stated that one unknown man had joined the accused Atif Zaman soon after firing upon Khizer Hayat at the spot and later on during Identification Parade proceedings PWs identified the applicant/accused to be the same person. The crime weapon allegedly recovered from the possession of accused Atif Zaman is the licensed Pistol of the applicant/accused and such verification letters of Home Department are available with the police papers. The company of the applicant/accused with co-accused and his presence at the both instances i.e. places of first murder of Khizer Hayat and subsequent murder of Mureed Abbas show that he had been in league with co-accused Atif Zaman in committing murders, therefore, material so available with the prosecution in shape of 161 Cr.P.C. & 164 Cr.P.C. statements, Identification Parade proceedings, license of the crime weapon in the name of the applicant/accused and further registration of FIR No.398/2019 of P.S. Darakhshan under section 25 Sindh Arms Act, 2013 connects him with the crime. The accused is charged with section 302 PPC, as such same falls within prohibitory clause of 497 Cr.P.C. For the reasons mentioned hereinabove the applicant/accused has failed to make prosecution case against him of further inquiry, hence bail application merits no consideration and is hereby dismissed.” 2. It appears that the said accused Adil Zaman approached the High Court of Sindh which, through impugned Criminal Petition No.105-K of 2020 -: 3 :- order, enlarged the accused on bail by holding that the case against the accused was of further inquiry. The following reasoning prevailed with the High Court to come to such conclusion:- “5. Admittedly the complainant is not the eye-witness of the incident and she had lodged the FIR on the information received by her from wife of PW Umar Rehan via phone. After lodgment of the FIR the Investigating Officer had recorded 161 Cr.P.C. statements of PWs namely Umar Rehan and Usama who were present at the place of incident who stated that present applicant was accompanied with accused Atif Zaman. Similarly witnesses of murder of Khizer Hayat in their 161 Cr.P.C. statements stated that one unknown man had joined the accused Atif Zaman soon after firing. Perusal of record reveals that prosecution witness have only leveled the allegation of mere presence and nothing else against the present applicant. The complainant has stated in the FIR that wife of PW Umar Rehan had informed her through phone about the incident which means that PW Umar Rehan has relations with the complainant party therefore false implication cannot be ruled out. Mere presence of applicant at the spot with no specific role does not disentitle him from concession of bail. Prima facie, case against applicant appears to be doubtful benefit of which shall go to the applicant.” 3. The petitioner who is the complainant and wife of deceased Mureed Abbas seeks leave of this Court against the order of the High Court. 4. Mr. Faisal Siddiqui, learned counsel appearing for the petitioner, has argued that two murders were committed within an interval of half an hour by Atif Zaman, the main accused of the crime who happens to be the real brother of the respondent Adil Zaman. Per counsel the sole consideration which prevailed with the High Court to enlarge the respondent Adil Zaman on bail was that he was merely present at the scene of crime and that no active role was assigned to him, but the fact remains that the respondent had accompanied his brother when the first murder of Khizer Criminal Petition No.105-K of 2020 -: 4 :- Hayat was committed as an eye-witness has stated that an unknown man joined the main accused, Atif Zaman, at the time when he was escaping from the scene after firing at Khizer Hayat, and at subsequent stage the unknown man was identified as respondent, Adil Zaman. Within next half an hour the second murder of Mureed Abbas was committed by the main accused, Atif Zaman, and he was again accompanied by respondent Adil Zaman, which is sufficient to show that they shared common intention. The counsel has further referred to 161 and 164 Cr.P.C. statements of an eye-witness of the crime, namely Umar Rehan, who stated that Atif Zaman in his presence committed murder of Mureed Abbas. The eye-witness further asserted that he caught hold of Atif Zaman’s hand in which he was holding pistol and the co-accused, Adil Zaman, helped to get Atif Zaman’s hand released from his grip. Per counsel it is an active role and sufficient material to connect the respondent with the commission of the crime which was not taken into consideration by the High Court while upsetting the order of the Trial Court. The counsel further argued that it has also been established that the pistol used in the crime was supplied by respondent No.2 as report on record reveals that it was his licensed pistol, again this fact which prevailed with the Court of first instance to decline bail to accused Adil Zaman was not attended rather ignored by the High Court while granting bail. 5. On the other hand, Mr. Farid Ahmed Dayo, learned counsel appearing for respondent Adil Zaman contended that the petitioner has failed to meet the parameters laid down by this Court to seek cancellation of bail. In this regard he has referred to the judgments of this Court reported as Sami Ullah and another Vs. Laiq Zada and another (2020 SCMR 1115), Khiyal Saba and Criminal Petition No.105-K of 2020 -: 5 :- another Vs. The State and others (2020 SCMR 340) and Nadeem Vs. The State and another (2016 SCMR 1619). The counsel asserts that since the respondent has not misused the concession of bail, therefore, the petition may be dismissed. The counsel has further contended that though in 164 Cr.P.C. statement eye-witness, Umar Rehan, stated that respondent, Adil Zaman, has helped the principal accused in getting release from his grip but such statement was not made in his earlier 161 Cr.P.C. statement recorded by the police. He next contended that other factors also prevailed with the Court to enlarge the respondent on bail and, therefore, such concession could only be recalled once misuse of concession is established. 6. We have heard the learned counsel for the respective parties and perused the record. 7. A careful perusal of the submissions show that the case law cited by Mr. Dayo is of no help in the circumstances of this case, as the petitioner is not seeking cancellation of concession on the ground of its misuse but on the ground that the order impugned through which bail has been granted is perverse because the High Court ignored the material available on the record which was made basis of bail declining order and which suggests active involvement of the accused Adil Zaman in the commission of the aforesaid offence. It should not be ignored that the concept of setting aside the unjustified, illegal, erroneous or perverse order to recall the concession of bail is altogether different than the concept of cancelling the bail on the ground that the accused has misused the concession or misconducted himself or some new facts requiring cancellation of bail have emerged. Criminal Petition No.105-K of 2020 -: 6 :- 8. In light of the dictum laid down in Sami Ullah v Laiq Zada 2020 SCMR 1115 and The State/Anti-Narcotic v Rafique Ahmed Channa 2010 SCMR 580, it is a settled principle of law that a bail granting order can be cancelled if the same is perverse. In legal parlance, a perverse order is defined as an order which is, inter alia, entirely against the weight of the evidence on record.1 It is always to be kept in mind that in cases where the court granting bail ignores relevant material indicating prima facie involvement of the accused in the commission of crime or takes into account irrelevant material, which has no relevance to the question of grant of bail to the accused, then the Court reviewing such order would be justified in cancelling the bail. 9. A similar definition was relied upon by the Supreme Court of India in Puran v. Rambilas (2001) 6 SCC 338, wherein it was held that an order granting bail would be perverse and contrary to the principles of law if the same was passed by ignoring material evidence on record and without giving reasons. In the circumstances of this case, there is no cavil with the proposition, as is evident from the record, that the only consideration which prevailed with the High Court to upset the bail-declining order of the Court of first instance and to enlarge the respondent on bail was that there is nothing against him except his presence which could not lead to a conclusion that the respondent shared a common intention with the principal accused, Atif Zaman. However, in our opinion, the alleged presence of accused Adil Zaman with his brother Atif Zaman, the principal accused at both the crime scenes where two murders one after the other within a short span of half an hour were committed, coupled with the fact 1 Words and Phrases, Permanent Edition, Vol. 32 (Publisher: West Publishing Co.) pp.-712. Criminal Petition No.105-K of 2020 -: 7 :- that both the accused are real brothers and the pistol used in the crime belongs to accused Adil Zaman, speaks volumes which could hardly be rated as coincidence Additionally, the observation of the High Court that the only allegation against respondent No.2 is his presence at the crime scene also appears to be contrary to record as the eye-witness, Umar Rehan, has assigned active role of facilitation to the respondent, Adil Zaman, both in his 161 and 164 Cr.P.C. statements, which fact prevailed as prime consideration with the Court of first instance to decline the bail to the petitioner. 10. Furthermore, no doubt that it has been settled by this Court through its numerous pronouncements that the courts should rarely and in exceptional circumstances interfere with the bail granting orders. Reference in this regard can be made to Mst. Noor Habib v Saleem Raza 2009 SCMR 786, Muhammad Azhar v Dilawar 2009 SCMR 1202 and Ehsan Akbar v The State 2007 SCMR 482. However, one thing which is to be kept in mind is that in cases where the Court of first instance has through a reasoned order refused concession of bail to an accused in non-bailable cases, then the Court of Appeal while reversing such order cannot simply ignore the reasoning which prevailed with the Court of first instance while refusing the concession of bail. The Court of appeal of course exercises concurrent jurisdiction and has all the powers to review such orders by taking a different view on the same facts if it finds that the Court of first instance in the circumstances of the case has failed to exercise its discretion in accordance with the principles settled by this Court by unnecessarily withholding such concession. However, the Court while reviewing such order should not simply ignore the reasoning prevailed with the Court for declining bail. There is no cavil that discretion should be liberally Criminal Petition No.105-K of 2020 -: 8 :- exercised in favour of accused but not to an extent to render the provisions of Section 497 Cr.P.C. as redundant. 11. In this case, the High Court not only ignored the reasons that prevailed with the Court of first instance for refusing the concession of bail to the accused, Adil Zaman, but also did not consider the material available on record that suggests active role of the said accused in the commission of the aforesaid offence. Indeed, the conclusion of the Court of first instance that there was sufficient material with the prosecution to connect the respondent with the commission of crime could not have been upset on the basis of observations contrary to the record. The impugned order, therefore, is found to be perverse and accordingly set aside. In the circumstances, we, by converting this petition into an appeal and allowing the same, cancel the bail granted to the respondent, Adil Zaman, by the High Court vide order dated 19.05.2020. Needless to observe that the trial Court would be free to decide the main case without being influenced from any observation strictly in accordance with law. 12. These are the reasons of our short order of even date which reads as follows: “Heard the Counsel for the parties. For the reasons to be recorded later, this Criminal Petition is converted into appeal and allowed. Bail granted by the High Court to respondent Adil Zaman is hereby cancelled”. Judge Judge Karachi, the 10th of September, 2020 Not approved for reporting A. Rehman

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE MUSHIR ALAM MR. JUSTICE DOST MUHAMMAD KHAN Criminal Petition No.105/2017 (On appeal from the order dated 10.1.2017 passed by Lahore High Court, Rawalpindi Bench, Rawalpindi in Crl.Misc.No.2356-B/2016) Imtiaz Ahmed … Petitioner(s) VERSUS The State thr. Special Prosecutor, ANF … Respondent(s) For the petitioner(s): Ms. Aisha Tasneem, ASC Mr. Mehmood A. Sheikh, AOR For the State/ANF: Raja Inam Amin Minhas, Spl. Prosecutor, ANF Zubiar, IO. and Ch. Ehtesham-ul-Haq, ASC Date of hearing: 21.3.2017 JUDGMENT Dost Muhammad Khan, J.— Impugned herein, is the order of the Lahore High Court, Rawalpindi Bench, Rawalpindi dated 10.1.2017, dismissing bail petition of Imtiaz Ahmed, petitioner, which was sought on statutory ground of delay in the conclusion of the trial. 2. The case of the prosecution against the petitioner is, that on a tip off, S.I. Shakeel Ahmed alongwith ANF staff intercepted the petitioner and co-accused Irfan Ali (since dead) when, they were shifting narcotics (heroin powder) in the two shopping bags from the boots of their respective cars near bus stop, Dhoke Gujran, Misrial Road, Rawalpindi. Similar kind of narcotics was also recovered from the boots of their respective cars on pointation of both the accused. The total weight turned to be 69 kg, which was taken into possession Crl.P.105/17 2 and case FIR No.33 of 2014 was registered by PS, ANF/RD, R.A. Bazar, Rawalpindi on 7.5.2014, for crimes u/Ss. 9(c), 14 and 15, CNS Act, 1997. Two co-accused were also named, who were allegedly partners in the business of narcotics with them. 2. Ms. Ayesha Tasnim, learned ASC for the petitioner, vehemently argued that since his arrest, the petitioner’s trial could not be concluded due to consistent absence of the prosecution witnesses who even did not turn up, despite issuance of non-bailable warrants of arrest against them; the investigating officer of this case has been declared absconder in another case, whose appearance in the Court as prosecution witness is not possible in the near future, while total detention period of the petitioner has come to almost two years and ten months. Elaborating her point of view, learned ASC for the petitioner drew our attention to some order sheets of the Special Court where, Irfan Ali (dead accused) got sick. He applied to the Court for his treatment through specialized hands in the hospital but the matter was dragged on unnecessarily by the Presiding Judge of the Court, which aggravated the disease of the said accused and when he was taken in emergency to the hospital by the Jail authorities, he died in the hospital. Further urged that the petitioner too is a sick person of highly advanced age. His eye surgery was conducted after considerable efforts, made by him and he is still not feeling well but the Trial Court is not taking effective steps to conclude the trial nor the Prosecution is cooperating with it, as required by law. Crl.P.105/17 3 3. On the other hand, Raja Inam Amin Minhas, learned Special Prosecutor, ANF having no case on merits, took shelter behind the technicalities and argued with vehemence that the provision of section 51 of the Control of Narcotic Substances Act, 1997 has placed clear embargo on the grant of bail and the provisions of section 497 and 498 Cr.P.C. have been excluded in its application to such offences by the said provision of special law, therefore, the petitioner cannot avail the benefit of the beneficial provision of the third proviso to section 497 Cr.P.C. 4. The provision of section 51(1) of the CNSA appears to have been borrowed from the provision of sub-section (1) of section 497 Cr.P.C. with the only difference that in the latter provision, bail cannot be granted even in offences punishable with life imprisonment or imprisonment of ten years. The bar on the grant of bail in the latter two categories of offences i.e. life R.I. and ten years R.I. were added to section 497 Cr.P.C. through Act No. XXV of 1974. 5. Although the legislature is competent to enact law, dealing with particular class of offences and offenders in different manners however, it has to undergo the test of reasonableness and has to be based on sound rationale and the distinction is to be drawn on high moral, legal and sound grounds. 6. There is a long chain of authorities where the superior courts have always jealously guarded and protected the liberty of citizens in the matter of grant of bail and in all such cases assistance, aid and guidance has always been taken from the provision of section 497 Cr.P.C. being considered the mother provision of law, regulating the grant or refusal of bail to an accused person in cases triable under Crl.P.105/17 4 the special law, as the said provision of law has successfully undergone the test of all times, since its inception/incorporation in the Code. 7. The Liberty of a citizen has been elevated to the high pedestal by the provisions of Articles 7 and 9 of the Constitution of 1973, which inter alia provides that no citizen shall be deprived of his life and/or liberty, save in accordance with law, nor any accused person shall be detained without lawful authority of the competent court. 8. Keeping in view the entire scheme of the Constitution, particularly the Objective Resolution, which has now been made inseparable part of the Constitution under Article 2-A thereof, that Pakistan shall be a welfare State, therefore, one has to see whether rigours of section 51 of CNSA, are liable to be diluted by avoiding rigid adherence thereto in rare and exceptional cases. 9. In the above context, the first test case came up before this Court, was the famous case known as Allied Bank v. Khalid Farooq also cited as Muhammad Aslam v. The State (1991 SCMR 599), where a 3-Member Bench of this Court, took a contrary view, however, lately it was suggested to the then Hon’ble Chief Justice of Pakistan to constitute a larger bench to settle the controversy once for all. 10. Eventually when the case of The State v. Syed Qaim Ali Shah (1992 SCMR 2192) came up for re-examination of the ratio laid down in the Allied Bank case (Supra), the larger bench made a clear departure from the earlier view held in that case. In the case of Syed Crl.P.105/17 5 Qaim Ali Shah and others, the accused were booked for crimes u/s 302/307(repealed)/120-B/34 PPC read with provision of Suppression of Terrorist Activities Act, 1975 (repealed). The facts of the case were, that 26 persons were done to death, while several others were caused injuries on 22.8.1990, in various localities of Karachi, through indiscriminate firing on the reception camps, set up by a political party, to accord welcome reception to its leader. 11. The principal accused, namely Syed Qaim Ali Shah, in the case (supra) got sick while under detention and a Medical Board dully constituted, declared him so sick that his treatment was not possible in Jail. On this ground, a Division Bench of the High Court of Sindh at Karachi, granted him bail, pressing into service the first proviso to section 497 Cr.P.C. despite the fact, that similar bar was placed on grant of bail to an accused person charged for any offence contained in the Schedule to the Suppression of Terrorist Activities Act, 1975 (repealed). 12. The 5 Members bench of this Court, to determine the question of jurisdiction in granting bail to the accused, Syed Qaim Ali Shah, formulated a single point of law, which is reproduced below:- “Whether the ratio of the Judgement in the case of Muhammad Aslam v. The State (1991 SCMR 599) can be pressed into service in this case and whether a person facing trial before a Special Court under the Act, can seek bail on medical ground under the first proviso to subsection (1) of section 497 Cr.P.C.” 13. After elaborately dealing with all legal propositions, also drawing comparison between the provisions of sub-section (1) of section 497 Cr.P.C. and all the provisos contained therein and section Crl.P.105/17 6 5-A(8) of the Suppression of Terrorist Activities Act, 1975 (Special Court) while interpreting the Statute, the Bench cited the principle laid down by Pollock C.B., in the case of Attorney General v. Sillem (1864, 2 H & C. 431 @ 515), which is cited below:- “In order to know what a statute does mean it is one important step to know what it does not mean; and if it be quite clear that there is something which it does not mean, then that which is suggested or supposed to be what it does mean, must be in harmony and consistent with what it is clear that it does not mean. What it forbids must be consistent with what it permits.” The larger Bench held that the provision of sub-section (8) of section 5-A of the Special Act displaces sub-section (1) of section 497 Cr.P.C. so far it was in conflict with it, however, it has not eliminated the provisos 1 to 3 contained therein, because of lack of conflict between it and the provision of Special Act, referred to above. 14. It was also held in firm terms, that, when any Statute transgresses on the rights of a subject, whether as regards to his person or property, it must be so construed as far as possible, which may preserve such rights and no interpretation to the contrary shall be adopted, which would pose to destroy such rights. 15. In the ultimate conclusion, the larger Bench held that, the view in the case of Allied Bank (supra) was not based on correct interpretation thus, while making departure from the earlier view, the judgment of Sindh High Court granting bail to Syed Qaim Ali Shah, accused and his co-accused on the strength of first and third provisos to sub-section (1) of section 497 of the Code was declared justified and was upheld by dismissing the appeal of the State. Crl.P.105/17 7 16. In the case of Khan Asfandyar Wali Khan Vs. The Federation of Pakistan and others (PLD 2001 SC 607) various provisions of National Accountability Bureau Ordinance (XVIII) of 1999 were challenged on the ground of discrimination and being ultra vires to the provisions of the Constitution. The larger Bench held the number of provisions as legitimate because in view of the increasing menace of corruption and corrupt practices, however, it was observed that, no inbuilt provision is provided to regulate the grant or refusal of bail to an accused person facing charges under the said law and the clauses ousting jurisdiction of the Superior Courts not in conformity with scheme of constitution (referred in para 197 at page 885), which is reproduced below:- “It was held in the case of Zafar Ali Shah (PLD 2000 SC 869) that the powers of the superior Courts under Article 199 of the constitution “remain available to their full extent notwithstanding anything contained in any legislative instrument enacted by the Chief Executive.” Whereas, section 9(b) of the NAB Ordinance purports to deny to all Courts, including the High Courts, the jurisdiction under sections 426, 491, 497, 498 and 561A or any other provision of the Code of Criminal Procedure or any other law for the time being in force, to grant bail to any person accused of an offence under the NAB Ordinance. It is well settled that the Superior Courts have the power to grant bail under Article 199 of the section 497 of the Criminal Procedure Code, section 9(b) of the NAB Ordinance to that extent is ultra-vires the Constitution. Accordingly, the same be amended suitably.” Accordingly, suitable amendments were introduced in various provisions of NAB Ordinance, 1999. It was further held in no ambiguous terms that, the superior Courts’ powers cannot be curtailed Crl.P.105/17 8 or taken away with regard to protecting the liberty of citizens even in crimes of heinous nature and that the superior Courts’ despite of no mechanism provided for grant of bail to accused person, facing charges under the said law can grant bail in fit cases under section 497 Cr.P.C. which has been re-activated by the superior Courts of the country along with all beneficial provisos with regard to statutory delay or sickness of the nature which could not be treated in jail or the same is likely to endanger the prisoner’s life. 17. To have a speedy trial, is the fundamental right of accused being universally acknowledged. Under the Criminal Procedure Code, smooth methodology and scheme for speedy trial, is provided whether it is held by the Session Court or Magistrate, in recognition of the said right of an accused person. This principle shall apply more vigorously to the trials before Special Courts, constituted under the CNS Act, or any other special law so that unnecessary delay, much less shocking one in its conclusion is avoided in all circumstances. Any unreasonable or shocking delay in the conclusion of the trial, before Special Courts, like we are confronted with in the present case, would amount to denial of justice, or to say, denial of fundamental rights, to the accused, of speedy trial. 18. After careful perusal of all the order sheets of the Trial/Special Court, we are constrained to observe that the Presiding Officer has shown negligent conduct in the progress of the trial, neglecting his obligatory duty to conclude the same in minimum possible time. Majority of the order-sheets are written in Urdu version, Crl.P.105/17 9 which appears to be in the hand of the Reader or some other official of the Court, while the Presiding Officer has put initials thereon. 19. The co-accused, namely, Irfan Ali (since dead) was seriously sick, he applied to the Court for providing specialized treatment in some government hospital, however, the Presiding Judge of the Court did pay proper attention to it and left the fate of the said accused at the mercy of the jail authorities and the Prosecution. The Jailor reported to the Court that permission of the Home Department, Punjab had been sought and on getting the same, he would be taken to the hospital for treatment and management through specialized medical experts. It was in this background that in not getting timely specialized treatment in some government hospital, his disease aggravated to unmanageable extent thus, he was shifted to the hospital in serious emergency, however, after staying 2/3 days in the hospital, his life could not be saved by then and he died there. This is uncondonable default on the part of the Presiding Judge, who had surrendered his judicial authority to the Jailor to regulate the custody of the under-trial prisoner and to take care of his health. It must be borne in mind that custody of under-trial prisoners, including health care and other facilities has to be regulated strictly by the Judges, before whom the trials are pending. The jail authorities can only deal with the custody of those prisoners who are sentenced to imprisonment. Thus, we are of the view that the Presiding Judge of the Special Court was fully oblivious of his judicial authorities to enforce the writ of the Court, keeping in view the urgent and sensitive nature of the matter. Even in a case of hardened, desperate and dangerous criminals, they are entitled to similar treatment, however, to ensure Crl.P.105/17 10 that they may not abscond from the custody, the Court may direct that while staying in the government hospital for treatment sufficient number of security guards should be provided, however, on that ground alone urgent treatment from specialist doctors whenever is seriously needed, cannot be denied to them, being a fundamental right of every citizen, as the provision of the Constitution has not drawn any distinction between an under-trial prisoner or citizens at large. 20. The petitioner himself is also suffering from sickness as on, while in custody, he has undergone eye surgery after considerable efforts were made in that regard. He is also at advanced age as was stated at the bar by his learned counsel, which was not controverted at the bar by the Prosecution. 21. The petitioner is in Jail for almost 3 years, while conclusion of the trial is not in sight because the prosecution witnesses are not turning up, inspite of coercive process has been issued against them whereas, the investigating officer in this case, who is a star witness for the prosecution, as stated earlier is fugitive from law in another criminal case, therefore, to expect the conclusion of the trial in the near future, would be nothing but a far fetched dream. In the case Mr. Asif Ali Zardari v. The State (1993 P Cr. L J 781) a Full Bench of the Sindh High Court, granted him bail on the basis of statutory delay in the trial. The Full Bench of the Sindh High Court at Karachi held that in case of shocking delay in the conclusion of trial, the accused was entitled to the concession of bail on the strength of third proviso to section 497 Cr.P.C, which view has not been set aside by this Court till date. Crl.P.105/17 11 22. In view of the above legal and factual position, in our view, the petitioner has become entitled to grant of bail as of right on the basis of shocking delay in the conclusion of the trial, more so, if further time is allowed to the prosecution, it would be absolutely impossible to conclude trial before the Trial Court, in view of the circumstances narrated above. 23. Accordingly, this petition is converted into appeal and the same is allowed. These are the detailed reasons for our short order of even date, which is as follows:- “For the reasons to follow, this petition is converted into appeal and allowed. The petitioner is extended bail subject to furnishing solvent bail bonds in the sum of Rs.500,000/- (five lac) with two reliable sureties in the like amount to the satisfaction of the learned trial Court. The petitioner is also directed to deposit his ‘Passport’ with the learned trial court.” Judge Judge Islamabad, the 21st March, 2017 Nisar/* Approved For Reporting.

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE MUSHIR ALAM MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CRIMINAL PETITION NO.1067/2020 (Against the order of the Lahore High Court (Multan Bench) dated 07.09.2020 passed in Crl.M No.4698- B/2020) Khair Muhammad s/o Allah Wasaya and another : … Petitioner(s) Versus The State through PG Punjab and another : … Respondent(s) For the Petitioner(s) : Mr. Saif Ullah ASC Syed Rifaqat Hussain Shah, AOR For the (State) : Mirza Muhammad Usman DPG Punjab Mr. Omer Saeed, DPO DG Khan Mr. Saadat Ali, DSP City Circle, DG Khan Ghulam Akbar SI, PS Gadai, DG Khan Date of Hearing : 23.10.2020 …. ORDER SAYYED MAZAHAR ALI AKBAR NAQVI, J: - Criminal petition has been filed for leave to appeal under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 calling in question the impugned order dated 07.09.2020 passed by learned Single Bench of Lahore High Court (Multan Bench). 2. The petitioners were booked in case bearing FIR No.488/2020 dated 03.08.2020 offence u/s 302/324/34, PPC registered with Police Station Gadai, District DG Khan. As per accusation levelled in the crime report, it is alleged that the petitioners were destroying the crops belonging to the complainant, which was forbidden by the complainant, resultantly it emerged into a scuffle, as a consequent, one Khadim Hussain was fired Criminal Petition No.1067/2020 Khair Muhammad and another Vs, The State and another 2 upon who later succumbed to the injuries, while one Murad Khan also suffered one scratch over his body. The allegation against Khair Muhammad is that he brought two pistols and handed over to his sons whereas “Danda” blow is alleged to Bashir Ahmad on the shoulder of the complainant Ahmad Bux besides causing fire shot on the little finger of the complainant. 3. At the very outset, learned counsel appearing on behalf of the petitioners argued that wider net has been thrown by the prosecution to involve whole male members of the family. Further contends that the occurrence has been aggravated and the injury ascribed to Bashir Ahmad is not substantiated by the medical evidence. Contends that the medical report clearly reflects that it was a blunt injury and as such, it negates the version of the prosecution. As far as the role ascribed to Khair Muhammad is concerned, the learned counsel argued that it was opined by the Investigating Officer that he was not present at the spot at the time of occurrence. Contends that the petitioners are of advanced age and have no nexus with the crime alleged against them. Contends that the case of the petitioners is of further inquiry hence, they are entitled for concession sought for. 4. On the other hand, learned law officer argued that the petitioners are nominated in the crime report with specific allegation however frankly conceded that during course of investigation, finding was given by the Investigating Officer that Khair Muhammad was not present at the spot at the time of occurrence whereas firearm injury ascribed to Bashir Ahmad is not observed by the doctor, as alleged by prosecution. 5. We have hearing the learned counsel for the parties and gone through the record. Criminal Petition No.1067/2020 Khair Muhammad and another Vs, The State and another 3 There is no denial to this fact that the petitioners are nominated in the crime report. According to the contents of the crime report, it is mentioned that the occurrence has taken place in the morning (ہﻠﯾو ﺢﺑﺻ) whereas the matter was reported to police at 10:50 AM. Admittedly, the inter-se distance between the place of occurrence and police station is 08-KM. Inordinate delay qua time of occurrence and registration clearly reveals that possibility of deliberation and consultation cannot be ruled out. Apart from this, the role ascribed to both the petitioners was not substantiated during course of investigation. Ad-interim bail was granted to the petitioners by this Court vide order dated 01.10.2020 whereas on 08.10.2020 though Investigating Officer was present but he could not satisfy the Court, hence vide order dated 08.10.2020 District Police Officer, DG Khan was directed to appear in person. Today, District Police Officer, DG Khan is present in the Court in person, he categorically stated before the Court that Senior Police Officers of the Gazetted Rank, investigated the matter at length and gave concurrence to the finding given by the local Investigating Officer. The concept of pre-arrest bail is exceptional, it has to be exercised sparingly. The purpose behind is to save innocent persons from false allegations, trumped up charges and malicious prosecution at the end of complainant party. In the salutary judgment of this Court reported as “Meeran Bux Vs, The State and another” (PLD 1989 SC 347), the scope of the pre-arrest bail has been widened and as such while granting pre-arrest bail even the merits of the case can be touched upon. The petitioners are ascribed the role which was found false during the course of investigation. The injury ascribed to Bashir Ahmad was contradicted by medical evidence. Co- accused Khair Muhammad was found not to be present at the spot at the time of occurrence by the Investigating Officer concurred by Senior Police Criminal Petition No.1067/2020 Khair Muhammad and another Vs, The State and another 4 Officer. No recovery of any incriminating material is to be affected from the petitioners. Both of them of advance age, feeble and found not connected with the crime as alleged, even one of the petitioners was not present at the spot. The custody of the petitioners would not advance the case of prosecution in any manner. Otherwise the authenticity of the accusation would be resolved by the learned trial court after recording of evidence. We are constrained to give any finding at this stage, lest it may prejudice the case of either of the party. 6. In view of facts and circumstances and keeping in view the sufficient material available on the record, we have persuaded that the case of the petitioners squarely falls within the ambit of section 497(2) Cr.PC entitling the petitioners for the relief sought for. As a consequence, leave to appeal is granted; the same is converted into appeal and is allowed. The ad-interim bail already granted to the petitioners in terms of order dated 01.10.2020 is hereby confirmed subject to their furnishing fresh bail bonds in the sum of Rs.5,00,000/- each to the satisfaction of the learned trial Court/Duty Judge. JUDGE JUDGE Islamabad/23.10.2020 Approved for reporting *Syed Rashid Maqsood*

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE UMAR ATA BANDIAL, CJ MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CRIMINAL PETITION NOs. 1086-L & 1143-L OF 2022 (On appeal against the order dated 22.06.2022 passed by the Lahore High Court, Lahore in Crl. Misc. Nos. 29415/B & 81584/B of 2022) Naeem Qadir Sheikh (In Cr.P. 1086-L/2022) Muhammad Zaigham Ali (In Cr.P. 1143-L/2022) … Petitioners VERSUS The State etc (In both cases) … Respondents For the Petitioners: Mr. Aftab Ahmad Bajwa, ASC a/w petitioner (In Cr.P. 1086-L/2022) Mian Muhammad Rauf, ASC a/w petitioner (In Cr.P. 1143-L/2022) For the State: Mr. Khurram Khan, Addl. P.G Mr. Abdul Majeed, Deputy Director, Anti Corruption Date of Hearing: 30.09.2022 ORDER SAYYED MAZAHAR ALI AKBAR NAQVI, J.- This order shall dispose of the above titled Criminal Petitions as they are directed against the same consolidated order. 2. Through the instant petitions under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have assailed the order dated 22.06.2022 passed by the learned Single Judge of the Lahore High Court, Lahore, with a prayer to grant pre-arrest bail in case registered vide FIR No. 46/2020 dated 26.12.2020 under Sections 409/420/467/468/471/201 PPC read with Section 5(2) of the Prevention of Corruption Act, 1947, at Police Station ACE/HQ Region-A, Lahore, in the interest of safe administration of criminal justice. CRIMINAL PETITION NO. 1086-L & 1143-L OF 2022 2 3. Briefly stated the prosecution story as narrated in the crime report is that pursuant to a letter received from Director Excise & Taxation, Region-C Lahore, it transpired that scanned record of 4397 vehicles was missing and not available. Allegedly this record was either misappropriated/embezzled or was not scanned to conceal the bogus registration of commercial vehicles by the petitioners and the co-accused, being officials of the Excise and Taxation Department. Hence, the instant case. 4. At the very outset, learned counsel for the petitioners contended that the petitioners have been falsely roped in this case against the actual facts and circumstances. It is contended that allegation of corruption, misconduct and misappropriation has not been attributed to the petitioners, as such, offences mentioned in the FIR do not attract in the present case. It is argued that the scam of bogus registration pertains to year 2015-2018 whereas petitioner Naeem Qadir Sheikh was posted as ETO in the year 2019. Further contended that petitioner Naeem Qadir Sheikh processed printing of 80 registration certificates and the scanned record of all these vehicles is available. Contends that neither there was any beneficiary of the alleged transaction nor is there any allegation that the petitioners have ever received any monetary advantage. Contends that one of the petitioners being low grade employee has been made scapegoat whereas the senior officers have been exonerated. Lastly it has been contended that co-accused of the petitioners have been granted bail by the court of competent jurisdiction, therefore, following the rule of consistency, the petitioners also deserve the same treatment to be meted out. 5. On the other hand, learned Law Officer has though defended the impugned order but admitted that there is no material against the petitioners available on the record. It has been contended that the petitioners’ co-accused in connivance with each other have actively participated in bogus registration of a large number of vehicles, therefore, they being co-employee do not deserve any leniency by this Court. 6. We have heard learned counsel for the parties at some length and have perused the available record. CRIMINAL PETITION NO. 1086-L & 1143-L OF 2022 3 Perusal of the record reveals that a scam regarding bogus registration of 4397 vehicles was surfaced from the office of Excise & Taxation, Region-C, Lahore. The petitioner Naeem Qadir Sheikh was posted as Excise & Taxation Officer (ETO) in the year 2019 whereas the petitioner Muhammad Zaigham Ali was posted as Data Entry Operator. During the tenure of petitioner Naeem Qadir Sheikh, he approved printing of 80 registration certificates out of which 14 were found to be bogus, hence, their documents were cancelled whereas 27 were found to be in accordance with law while 39 are still in process of investigation. It is the case of petitioner Naeem Qadir Sheikh that he approved printing of registration certificates of the vehicles, whose verification, registration fee and token tax had already been deposited before his posting. According to him, the scanning record of all these 80 files is available and was also provided to the Investigating Officer. It is an admitted fact that he was posted as ETO in the year 2019 whereas the scam of bogus registration pertains to 2015-2018. The Investigating Officer, present in Court, stated before this Court that uptill now the petitioner has no nexus with the scam, which is under investigation. As far as the case of petitioner Muhammad Zaigham Ali is concerned, it is his case that he was merely a Data Entry Operator, who was entrusted with the job of punching the data in system. It is the case of the petitioners that as per SOPs, the basic duty to (i) examine the documents and verify the particulars of the vehicles entered in the system with the original file, (ii) physical examination of the vehicle, and (iii) submission of the file after complete satisfaction of the papers of the motor vehicle was of the Inspector and not the petitioner. We have been informed that the all the officers, who were nominated in the crime report, have been exonerated. This fact prima facie fortifies the stance of the petitioners that they have been made scapegoat. The co-accused of the petitioners namely Adeel Amjad, who has been ascribed a similar role has been granted post arrest bail by the learned Trial Court. The department filed petition before the High Court seeking cancellation of bail but the same was dismissed vide order dated 19.01.2022. The said order has not been challenged before this Court meaning thereby that it has attained finality. In such like situation, when it is admitted fact that the role ascribed to the petitioners cannot be distinguished from the co-accused who has been granted post-arrest bail by the court of CRIMINAL PETITION NO. 1086-L & 1143-L OF 2022 4 competent jurisdiction which remains unchallenged, 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 become 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). 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). In these circumstances, it is the Trial Court who after recording of evidence would decide about the guilt or otherwise of the petitioners and no useful purpose would be served by sending the petitioners behind the bars for an indefinite period. 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 into their guilt. 7. For what has been discussed above, we convert these petitions into appeals, allow them and set aside the impugned order dated 22.06.2022 to the extent of the petitioners. The petitioners are admitted to bail subject to their furnishing bail bonds in the sum of Rs.200,000/- each with one surety each in the like amount to the satisfaction of learned Trial Court. CHIEF JUSTICE JUDGE Lahore, the 30th of September, 2022 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE MUNIB AKHTAR MR. JUSTICE QAZI MUHAMMAD AMIN AHMED Criminal Petition Nos.1088 to 1090 of 2021 and 1111 and 1136 of 2021 (Against the order dated 2.8.2021 passed by the Lahore High Court Multan Bench in Cr. Misc. Nos.3156-B 3157- B, 2596-B, 2597-B & 3801-B of 2021) Muhammad Yousaf (in Cr.P.1088, 1089 & 1136/2021) Ehsan Ullah (in Cr.P.1090, 1111 /2021) … Petitioner(s) Vs The State and another … Respondent(s) For the Petitioner(s) : Mr. Dil Muhammad Alizai, ASC Syed Rifaqat Hussain Shah, AOR For the State : Ch. M. Sarwar Sidhu, Addl. P.G. Punjab with Imran, DSP, Shoukat, SI, Rehmat Ali, Excise SI Date of Hearing : 07.12.2021 ORDER Qazi Muhammad Amin Ahmed, J.:- Consequent upon a single transaction with registration of different criminal cases, bail petitions wherefrom, were decided by the High Court through orders of even date, bear a common thread and, thus, are being decided through this single order. 2. On a tip off, Shoukat Hayat, SI of Police Station Doulat Gate Multan intercepted a Mini Truck bearing Registration No.TKZ/301 with Muhammad Yousaf and Ehsan Ullah, petitioners on board, on 25.6.2020; at first, 5 packets of cannabis weighing 6000 grams were found in the cabin; besides the contraband a sum of Rs.105,000/- was secured vide inventory. As the investigation progressed, Ehsan Ullah was found to have impersonated himself as Muhammad Younas, a subterfuge rectified forthwith. This followed by multiple disclosures by the accused leading to seizure of other consignments, surreptitiously concealed in different cavities of the vehicle as well as beneath the Cr.P. Nos.1088 to 1090 of 2021 and 1111 and 1136 of 2021 -:2:- cargo. It was through intensive effort that the police finally succeeded with the help of electric cutters to discover meticulously concealed cache, the last after the vehicle had already moved to the precincts of Police Station Lohari Gate. It is in this backdrop that as many as five First Information Reports were recorded to encompass the whole episode, a complexity, ingeniously highlighted by the learned counsel in his attempt to project multiple recoveries from the single vehicle at two police stations as a sham exercise. 3. Heard. Record perused. 4. A considerable cache comprising 56.400 k.g. cannabis was concealed in different cavities, discovered pursuant to piecemeal disclosures through elaborate investigate efforts involving steel cutters and, thus, it was humanly not possible for the police contingent to conclude the exercise in one go; they proceeded with the registration of cases as and when the recoveries became available and this certainly does not allow, within the limited space of tentative assessment, to entertain any manner of doubt for imposition of such a huge cache as in the given facts and circumstances of the case, there was no smarter way to better systematize the conclusion of investigative proceedings. Material collected coupled with the statements of the witnesses clearly attracts the mischief of section 51 of the Control of Narcotic Substances Act, 1997, standing insurmountably in impediment to petitioners’ release on bail. Petitions fail. Leave declined. Judge Judge Islamabad, the 7th December, 2021 Azmat/*

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CRIMINAL PETITION NO. 1091 OF 2021 (On appeal against the judgment dated 14.06.2021 passed by the Peshawar High Court, Peshawar in Cr. Revision No. 307-P/2019) Sher Hassan and others … Petitioners Versus Gul Hassan Khan and others …Respondent(s) For the Petitioners: Mr. Altaf Khan, ASC For Respondents (1 & 3): Mr. Imtiaz Ali, ASC Date of Hearing: 06.01.2022 ORDER SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through the instant petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have called in question the vires of the judgment dated 14.06.2021 passed by the learned Peshawar High Court, Peshawar whereby the Criminal Revision filed by the petitioners was dismissed and the orders of the learned Courts below were upheld by which the right of the petitioners to cross-examine PWs 3–5 was struck down. 2. Briefly stated the facts of the matter are that the respondents filed a complaint against the petitioners under Section 3 of Illegal Dispossession Act, 2005 wherein it was alleged that the petitioners have illegally dispossessed them from the property measuring 29 marlas, situated near Government College, Peshawar. Pursuant to the report of the SHO, the learned Trial Court dismissed the complaint vide order dated 25.03.2014. The respondents filed Writ Petition No. 1419-P/2014 against the said order, which was allowed vide order dated 16.03.2017 and the case was remanded back to the learned Trial Court to proceed with the complaint after affording an opportunity of hearing to both the parties. Thereafter, a formal charge Criminal Petition No. 1091/2021 -: 2 :- was framed against the petitioners and the respondents were directed to adduce their evidence. During the course of trial, statements of PW-1 and PW-2 were recorded whereas the examination-in-chief of PWs 3 to PW-5 was recorded. However, these three witnesses could not be cross-examined by the petitioners and ultimately their right of cross- examination was struck down vide order dated 25.06.2019 passed by the learned Trial Court. Petitioners then filed review petition but it stood dismissed vide order dated 09.12.2019. Being aggrieved, the petitioners filed Civil Revision before the learned Peshawar High Court but it also met the same fate vide impugned judgment. Hence, this petition seeking leave to appeal. 3. Learned counsel for the petitioners contends that the absence of the counsel for the petitioners before the Trial Court to cross-examine PWs 3–5 was due to his professional engagements and the same was not deliberate or intentional. Contends that there is no concept of striking down the right of cross-examination in the criminal jurisprudence and not affording the petitioners the opportunity to cross- examine PWs 3–5 would amount to condemning them unheard and if the petitioners are allowed to cross-examine the said witnesses, the Trial Court would be in a better position to decide the case on merits. 4. On the other hand, learned counsel for the respondents has defended the impugned judgment by contending that on eight occasions the petitioners’ counsel was not present before the Trial Court, therefore, keeping in view their conduct their right to cross- examine PWs 3–5 was rightly struck down by the courts below. 5. We have heard the learned counsel for the parties at some length and have gone through the case file. The phrase "defence struck off' or "defence struck out" is not unknown in the sphere of civil law and indeed it finds a place in Order XI Rule 21 of the Code of Civil Procedure. However, this concept is alien to the proceedings under the Code of Criminal Procedure. However, at this stage, we do not want to delve into detail of this aspect of the matter as to whether the proceedings under the Illegal Dispossession Act, 2005 are in the nature of a complaint and are different from the proceedings carried out pursuant to registration of FIR. Article 10A of the Constitution of Islamic Republic of Pakistan, Criminal Petition No. 1091/2021 -: 3 :- 1973 speaks about right of fair trial and due process both in civil as also in criminal proceedings. Thus the right to fair trial is a fundamental and Constitutional right belonging to every citizen of Pakistan. While deciding a criminal lis, the recording of evidence including the right of cross-examination of the witnesses, hearing of arguments and a reasoned judgment are the essential attributes of criminal justice system based on the Constitutional command. According to Merriam-Webster, the word ‘evidence’ means “material that is presented to a court of law to help find the truth about something”. The statements of witnesses and cross-examination is a vital part of that material, which form part of evidence, therefore, in absence of such an important piece of evidence, the Court could not come to a just and fair conclusion. In Muhammad Bashir Vs. Rukhsar (PLD 2020 SC 334) this Court has held that “right to cross-examine is the right of the adverse party which right he/she may forego but one which he/she cannot be deprived of. Criminal trial of an accused must be conducted with utmost fairness. Fundamental right of fair trial which the Constitution guaranteed is violated if any accused is deprived of the opportunity to cross-examine a witness deposing against him.” Even if we deny the right of cross-examination to the petitioners, in appeal the matter would again be remanded and, therefore, would further linger on the proceedings. It would, therefore, be in the interest of justice, if the petitioners are given the opportunity to cross-examine PWs 3–5 and by doing this no prejudice would be caused to the respondents. Consequently, we convert this petition into appeal, allow it and set aside the impugned judgment. The learned Trial Court is directed to afford an opportunity to cross-examine PWs 3–5 to the petitioners and complete this exercise within a period of one month of the next date of hearing before it. JUDGE JUDGE Islamabad, the 6th of January, 2022 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE MUSHIR ALAM MR. JUSTICE DOST MUHAMMAD KHAN MR. JUSTICE MAQBOOL BAQAR Criminal Petition No.1099 OF 2016 (On appeal from the judgment dated 17.10.2016 passed by the Peshawar High Court, Peshawar in Crl.Misc. No.2381-P of 2016) Haji Shahid Hussain and others … Petitioners VERSUS The State and another … Respondents For the petitioners: Mr. Ghulam Mohayuddin Malik, Sr. ASC For the State: Mr. Zahid Yousaf Qureshi, ASC Zahir Shah, SI Date of hearing: 22.2.2017 JUDGMENT Dost Muhammad Khan, J.— The petitioners are seeking leave to appeal against the order of the learned Single Judge of the Peshawar High Court dated 17.10.2016. We have heard Mr.Ghulam Mohayuddin Malik, Sr. ASC for the petitioners and Mr. Zahid Yousaf Qureshi, ASC for the State. 2. Petitioners alongwith other co-accused were booked for crimes u/Ss.419, 420, 468 PPC vide FIR No.333 dated 29.8.2016. 3. Precisely, the allegations against the petitioners and their co-accused are, that with mutual collaboration, they were running a fake travel agency by trade name, “M. Mustafa Manpower Travel Agency” office of which was located in Japan Chowk, Shakoor Bazaar, within the jurisdiction of PS Mandni, District Charsadda. Crl.P.1099/16 2 They deceitfully induced a large number of people, desirous to perform Hajj of the last season and in this way collected huge sum of money in millions fraudulently however, the complainant and few others reported the crime to the police. After defrauding the people, all the partners of the said agency including one Qari Ameer Ahmed Shah disappeared with the collected money. Neither those, from whom the money was collected, were sent to KSA for Hajj nor they were returned the money. After registration of the case, local police’s investigations revealed that even the said agency was not registered with the Tourism Department of Government of KPK. All the receipts about the collected money from the public, were purportedly executed under the signatures of Qari Ameer Ahmed Shah on the letterheads of the said agency, however, all these were containing the phone numbers of all the petitioners, which they never denied. 4. We have gone through the materials on record/evidence collected so far, and are of the considered view that, at the moment the petitioners are well connected with the crime because no malice or mala fide was attributed to the complainant and other victims, as to why they were falsely implicated in this case, thus this petition deserves out right dismissal and order accordingly. 5. This nature of frauds have become so common that, every year, before the Hajj Season commences, innocent and rustic peoples are looted by various so called agencies including the unauthorized tour operators, of which judicial notice is required to be taken to curb the increasing menace of frauds practiced in religious and pious Crl.P.1099/16 3 matters, therefore, Courts are required to treat these cases differently and such frauds must be brought to halt. Accordingly, by tentative assessment, we are of the view that the petitioners are not entitled to the concession of grant of bail, in the peculiar circumstances, therefore, this petition is dismissed and leave to appeal is refused. 6. During the course of hearing, the investigating officer and the law officer for the State, were asked, whether offences under the Human Trafficking Law are not constituted including those under Immigration Law and whether it was not a fit case, to be investigated into by the FIA? They both stated at the bar that such a request has been conveyed to the D.G. NAB, KPK through proper- channel but so far no action has been taken in this regard. A photocopy of the letter bearing No.1/GB dated Charsadda the 17/02/2017, written by DPO Charsadda and sent to the Deputy Inspector General of Police, Mardan Region I, Mardan has been placed before us, which reads as under:- “Memo: Enclosed kindly find herewith a detailed report submitted by SP Investigation Charsadda regarding the transfer of investigation of the said case to NAB Khyber Pakhtunkhwa Peshawar, for further necessary action. Please.” It is surprising, rather shocking that till date the NAB Regional Office, KPK has taken no action by laying hands on the further investigation of the case. 7. During the course of hearing we have straightaway observed that for the last many years, similar rather more serious Crl.P.1099/16 4 frauds have been committed in this fashion by a well organized Mafia. The notorious case of “Double Shah” is the example, may be cited with bold letters. Unauthorized Hajj and Umrah Tour Operators have swindled millions of money of the poor public in the past. All the watch dogs to prevent such corruption, corrupt practices and fraud remained in deep slumber till the time the crimes were fully consummated and then, on the complaint of the aggrieved community/people they started investigation. Prevention of such crimes is the constitutional and statutory obligation of the NAB, FIA, Anti-Corruption Establishment, the Police and all the relevant Ministries/Authorities/Statutory bodies within the Provinces and the Federal Government but they have been found consistently inconsistent in performing such obligatory duties well in time and allowed the fraudsters to commit such crimes with impunity, who operate openly in the big cities and public places but all such authorities, referred to above have turned deaf ears and added salt to the hurts and agony of the poorest amongst poor, albeit they are paid handsome emoluments, perks and privileges from the tax payers’ money. This phenomenon of laxity and negligence on their part would not and should not be tolerated anymore. 8. We have also straightaway noticed that the Ministry of Religious Affairs and Inter Faith Harmony is also not performing its statutory obligations. We are, therefore, constrained to direct it to create awareness in the public, particularly of the far flung areas, through wide range publicity, both through electronic and print media, at the District, Tehsil and Union Council level indicating the approved & authorized Hajj and Tour Operators, listed on the approved list of the Crl.P.1099/16 5 Ministry with a fixed quota, also indicating that how much money/fee they can collect from each individual, to be sent for performing “Hajj” or “Umrah” and what facilities they are required to provide at the holly places in KSA during the period of performing rituals including travel and transport facilities of a particular category. This negligence on the part of the Ministry provides golden opportunities to the Mafia involved in the detestable business of running fake Tour and Hajj Operator Agencies, without little fear of grip of law, while defrauding the people. Thus, it has become imperative to issue directions within the powers vested in the Court under Articles 184 (3) and 187 of the Constitution to the relevant authorities within the Federation and the Provinces to do what is required by the law and the Constitution to do. 9. Under Article 5(2) of the Constitution it is the obligatory duty of the authority including every citizen, to be obedient to the Constitution and the law of the land. This obligation has been made inviolable and this Court in many cases, particularly in the case of Nazar Hussain v. The State (2002 P Cr. L J 440) and the Full Court Bench’s decision, rendered in the case of Muhammad Nawaz Sharif v. President of Pakistan (PLD 1993 SC 473) has exercised such powers though, it was not directly a point in issue in those petitions. Another living example is the case of Dr. Mubashir Hassan v. the Federation of Pakistan (PLD 2010 SC 265), whereby, the clean chit given to corrupt elements under the law, famous for its notoriety called, “NRO” was struck down to bring to naught the provision of the said law, so that corruption and corrupt practices are plugged forever. Crl.P.1099/16 6 Accordingly, we will direct the Ministry of Religious Affairs and Inter Faith Harmony, Government of Pakistan to update its website in English, Urdu and all local languages, conveniently readable and understandable by the illiterate poor people, showing all the details about the duly approved Hajj & Umrah Tour Operators, warning the public at large that except those mentioned on the website, no other agency or Tour & Hajj Operator is authorized to make booking or collect money for sending people to perform Hajj or Umrah. At the same time, the said Ministry shall give wide publicity to such lists through electronic and print media and also through handbills/notifications in different languages, which shall be sent to the DCOs/Deputy Commissioners and DPOs of each and every District of each Province and ICT. Similarly, such handbills/pamphlets/booklets duly authenticated with the stamp and the signatures of the competent authority of the said Ministry shall be sent to the Nazims and Naib Nazims of each District in the Provinces and ICT; Tehsil Nazims, Naib Nazims as well as the Nazims and Naib Nazims of the Union Councils; the Regional Offices of the NAB, FIA, Anti Corruption Establishment of the Provinces and the Federation and the Information Ministries, of the Federal Government and all the Provinces, to give repeatedly wide publicity to the same through print media and electronic media for early information of the public at large, so that they are not defrauded in future in such manner as has been continuously done in the past. After receiving such lists/booklets/handbills by the local authorities and Anti-corruption watchdog, it shall be their responsibility to keep watchful eye on the Hajj & Umrah Tour Operators and other similar agencies so that no Crl.P.1099/16 7 unauthorized person/agency is able to operate and practice fraud upon innocent citizens in future. In case of any negligence or default on the part of such agencies, they would be liable for prosecution under the relevant provision of law, besides departmental action has to be taken against them, whenever in future such case comes to the notice of the Court. Copies of this judgment be sent to: (I) The Ministry of Religious Affairs & Inter Faith Harmony, Government of Pakistan, Islamabad. (II) Ministry of Information and Broadcasting, Government of Pakistan, Islamabad. (III) All the Chief Secretaries of the Provinces and the Chief Commissioner, ICT and to (IV) All the Agencies/authorities, referred to above by the office and all of them shall acknowledge receipt of the copy of the judgment to the Additional Registrar (Judicial) of this Court, which shall be placed before us in Chambers for our perusal and be made part of the present case file. Similarly, the duly authorized/approved Hajj & Umrah Tour Operators of the Ministry of Religious Affairs, Government of Pakistan shall display on their offices, the authority letter/license number, date of issue, the quota allotted and the amount chargeable by them, permitted by the Ministry of Religious Affairs, Government of Pakistan and they shall be further made liable to execute a guaranty/indemnity bond that they will publish a booklet/handbill, to be handed over to each applicant, desirous to perform Hajj and Umrah, which shall Crl.P.1099/16 8 contain all details of expenses, chargeable and all the facilities , to be provided to them during transit from Pakistan to KSA and within KSA while performing Hajj or Umrah including transport, lodging boarding, provision of food and other facilities required of them. The services of NADRA and PTA be availed to provide multiple Universal Access Number(s) (UAN), cell phone & landlines facilities and public be informed to get verification and authentic information from the Ministry of Hajj about every “Hajj” and “Umrah” private operators including the amount of money chargeable. Needful be done positively within two months and this campaign should be vigorously carried out at least three months before Hajj Season of the next year commences. Any fault or default/negligence on the part of the Ministry of Religious Affairs and Inter Faith, Government of Pakistan and those, to whom such information is conveyed by it, shall be deemed to have violated the law and the Constitution and besides departmental action to be initiated, they would be liable to be prosecuted under the law, whenever such case is reported to the Court. Judge Judge Judge Islamabad, the 22nd February, 2017 Nisar /- Approved For Reporting.

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. 1109 and 1110 of 2021 (On appeal from the judgment/order dated 29.09.2021 of the Islamabad High Court passed in Crl. Misc. 884-B,884- B/2021). Zakir Jaffer (in Crl.P. 1109/2021) Asmat Zakir Jaffer (in Crl.P. 1110/2021) …Petitioner(s) Versus The State through A.G. Islamabad and another (in both cases) …Respondent(s) For the Petitioner(s) : Kh. Haris Ahmad, Sr. ASC For the State : Mr. Niazullah Khan Niazi, AG ICT a/w Abdul Sattar, Inspector Mr. Shabbir Tanoli, SHO Complainant : Mr. Shah Khawar, ASC Date of Hearing : 18.10.2021 O R D E R UMAR ATA BANDIAL, J.- Crl.P.No.1109 of 2021: After arguing his case at length, learned counsel for the petitioner Zakir Jaffer does not press this petition for bail after arrest. Dismissed as not pressed. 2. Crl.P. No. 1110 of 2021: We have heard the arguments of the learned counsel for the petitioner Asmat Crl.P. 1109 of 2021 etc. 2 Zakir Jaffer in this petition for bail after arrest and noted that the learned High Court has in its impugned judgment dated 29.09.2021 failed to deal with the prosecution case against her and the pleas advanced by her counsel for grant of bail after arrest. 3. Be that as it may, without going into the merits of the case, we consider that the petitioner being a woman may be granted bail under the first proviso to section 497(1), Cr.P.C in absence of any circumstances that may justify declining this relief to her. The prosecution has not been able to point out any such circumstance. 4. Learned counsel for the petitioner has urged that the time period of eight weeks specified in the paragraph 14 of the impugned judgment dated 23.09.2021 “to conclude the trial expeditiously preferably within eight weeks from the framing of charge” deprives the petitioner of a fair opportunity to lead his defence. We do not agree with that submission which is conjectural and without reference to facts. However, it goes without saying that the petitioners have a right of presenting their defence before the learned Trial Court and in this respect the learned Trial Court shall consider and decide their pleas in accordance with law as envisaged in Article 10A of the Constitution. Crl.P. 1109 of 2021 etc. 3 5. Accordingly without interfering with the directions given by the learned High Court in the impugned judgment dated 29.09.2021 and in the light of the observations made by us above, we convert this petition (Crl.P. No.1110 of 2021) into appeal and grant bail to the petitioner Asmat Zakir Jaffer subject to her name being retained on the ECL and her furnishing bail bonds in the sum of Rupees One Million with one surety in the like amount to the satisfaction of the learned Trial Court concerned. Needless to say that this concession of bail may be withdrawn if the petitioner misuses it in any manner, including causing delay in the expeditious conclusion of the trial or influencing the prosecution witnesses. Judge Judge Islamabad 18.10.2021 Naseer Judge Not approved for reporting

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Umar Ata Bandial, CJ Mr. Justice Syed Mansoor Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Criminal petition No.1117-L of 2021 (Against the judgment dated 23.06.2021 passed by the Lahore high Court Lahore in Crl. A. No.9865/2021 Muhammad Irshad …..Petitioner(s) Versus The State through P.G. Punjab, etc. …Respondent(s) For the Petitioner(s): Mr. Shahid Tabassum, ASC For the State: Mr. Ahmed Raza Gillani, Addl. Prosecutor General Punjab Date of Hearing 03.02.2022. ORDER Qazi Muhammad Amin Ahmed, J.- Name of Muhammad Irshad, petitioner, notified as an activist of a Proscribed Organization was placed in the Fourth Schedule to the Anti Terrorism Act, 1997 vide order dated 17.3.2015, pursuant whereto, he executed a bond with two sureties as contemplated by section 11-EE of the Act ibid whereunder he had undertaken to notify his movement to the police; he vanished from the scene inconsequence whereof, pursuant to registration of a First Information Report on 27.12.2015, he was declared a proclaimed offender. Finally arrested on 2.9.2020 after his return from Dubai; indicted under sections 11 EE(4) and 21-L of the Act ibid, he was returned a guilty verdict and to be respectively sentenced to 2-years and 5-years rigorous imprisonment with concurrent commutation, pre-trial period inclusive, vide judgment dated Cr.P.1117-L/2021 -2- 03.02.2021; upheld by a learned Division Bench of the Lahore High Court vide judgment dated 23.06.2021, leave to appeal wherefrom is being prayed for on the grounds that there was no occasion for the learned trial Judge to convict and sentence the petitioner under either provision of Anti Terrorism Act inasmuch as through an Amendment introduced by Ordinance 125 of 2002 the expression Provincial Government was omitted and, thus, it was sole prerogative of the Federal Government to list a person as a proscribed person in the Fourth Schedule whereas petitioner’s name was placed in the said schedule by the Provincial Government, an exercise void ab initio. Second argument raised by the learned counsel is no less ingeniously articulated, according to him, disobedience of the bond did not constitute a substantive offence under Act and, thus, absence of a proscribed person cannot be viewed as absconsion, punishable under section 21-L thereof. 2. Heard. Record perused. 3. Though impressive at first sight, nonetheless, submissions made at the bar are entirely beside the mark inasmuch as the Federal Government in exercise of powers vesting in it under section 33 of the Act had already delegated its powers to the Provincial Home Secretaries of the each Province as well as Chief Commissioner Islamabad Capital Territory vide notification dated 29th October, 2014; this being so petitioner’s placement in the Fourth Schedule by the Home Secretary Punjab on 17-3-2015 was an act well within remit of law. Subsection 4 of section 11 EE unambiguously provides that any person who violates any direction or order or any term of bond executed thereunder shall expose himself to punishment of imprisonment that may extend to three years or with fine or with both and, thus, any violation of bond clearly constitutes an offence punishable under the Act and, as such, the petitioner committed an offence under the Act and, therefore, was rightly prosecuted and convicted for his willful absence from law. Apart from examination of legal positions taken by the learned counsel at the bar, we have also gone through the record of the case to Cr.P.1117-L/2021 -2- find that prosecution successfully drove home the charge against the petitioner on the strength of “proof beyond doubt” comprising oral as well as documentary evidence, leaving no space to entertain any hypothesis other than his guilt. Petition fails. Leave declined. Chief Justice Judge Judge Islamabad, the 3rd February, 2022 Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL MR. JUSTICE QAZI MUHAMMAD AMIN AHMED Criminal Petition Nos.112-P & 113-P of 2014 (Against the judgment dated 01.10.2014 passed by the Peshawar High Court Mingora Bench (Dar-ul-Qaza) Swat in Crl. Appeal No.164-M & 165-M of 2013) Ilyas (in both cases) …Petitioner(s) Versus Waris Khan, etc. (in both cases) ..Respondent(s) For the Petitioner(s): Mr. Abdul Qayum Sarwar, AOR/ASC For the Respondent(s): N.R. Date of hearing: 06.7.2021 ORDER Qazi Muhammad Amin Ahmed, J-. Akhtar Begum, 20, was shot dead by Waris Khan, respondent, no other than her better half with the assistance of his brother Karamat Ali to avenge her filing of a suit seeking dissolution of marriage; the incident occurred at 10:30 a.m. on 2.10.2012 inside deceased’s parental home, located within the precincts of Police Station Chaprial, District Swat. Autopsy conducted at 4:30 p.m. confirmed receipt of two entry wounds that generated hemorrhagic shock, resulting into immediate. The incident was reported by deceased’s father Muhammad Ilyas (PW-1) at 15:30 p.m. wherein he blamed the respondents for the crime on the instigation of one Khanzada. Spot inspection includes seizure of blood and eight casings of 7.62 caliber. The learned trial Judge acquitted Khanzada from the charge, however, proceeded to convict the respondents under clause (b) of section 302 of the Pakistan Penal Code, 1860 and sentenced them to death and imprisonment for life, respectively, vide judgment dated 08.07.2013; Waris Khan was Criminal Petition Nos.112-P & 113-P of 2014 2 separately tried under section 13 of the Arms Ordinance, 1965 and sentenced to three years rigorous imprisonment vide judgment of even date, both overturned by a Division Bench of the Peshawar High Court, Mingora Bench vide impugned judgment dated 01.10.2014, vires whereof, are being assailed on the ground that there was no occasion for the High Court to let off the respondents in the face of formidable evidence comprising ocular account, furnished by an inmate who saw his daughter being mercilessly done to death inside the safety of his house; it is next argued that disproportionate reliance by the High Court on alleged flaws in the investigative process having little bearing on the mainstay of the prosecution, being artificial, are incompatible with the settled principles of administration of criminal justice. The evidence admitted no hypothesis other than respondents’ guilt and, thus, the impugned view being impossible clamours for intervention by this Court, concluded the learned counsel. 2. In the peculiar facts and circumstances of the case, leave is granted to reappraise the entire evidence with a view to secure the ends of justice. Send for the respondents through bailable warrants of arrest in the sum of Rs.200,000/- with one surety in the like amount, returnable to the Assistant Registrar of this Court at Peshawar, to be executed through the Station House Officer, within a fortnight. Judge Judge Peshawar, 6th July, 2021 Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmad Malik Mr. Justice Qazi Muhammad Amin Ahmed Mr. Justice Amin-ud-Din Khan Criminal Petition No.1121/2017 (Against judgment dated 21.9.2017 of the Lahore High Court, Multan Bench passed in Cr. A. No.482/2014) Muhammad Boota …Petitioner(s) Versus The State and another …Respondent(s) For the Petitioner(s): Mr. Shahid Azeem, ASC For the State: Mirza Abid Majeed, Deputy Prosecutor General Punjab Date of hearing: 2.12.2019 ORDER Qazi Muhammad Amin Ahmed, J.- Muhammad Boota, petitioner herein, was tried alongside Rashid Ali, acquitted co-accused, by a learned Addl. Sessions Judge at Multan; surprised by a police contingent, they were intercepted while transporting 15 sacks of Bhang, weighing 5 mound, on 11.6.2013 within the precincts of Police Station Baha-ud-Din Zakariya Multan; convicted under section 9 (c) of the Control of Narcotic Substances Act, 1997, both were sentenced to imprisonment for life alongwith fine of Rs.25,000/- or to undergo simple imprisonment for one year in default thereof. A learned Division Bench of Lahore High Court at Multan acquitted Rashid Ali convict from the charge while maintaining petitioner’s conviction and sentence vide impugned judgment dated 21.9.2017, vires whereof are being assailed on a variety of grounds, absence of analysis protocol in the forensic report being most prominent. 2. It has since been authoritatively settled by this Court in the case reported as The State through Regional Director ANF Vs. Imam Bakhsh (2018 SCMR 2039) that confirmatory forensic conclusions to establish narcotic character of a substance must be supported by protocol/procedure mandated by Rule 6 of the Control of Narcotic Substances (Government Analysts) Rules 2001 and non-compliance of Rule ibid would render the report of the Government Analyst Cr.P. No.1121 of 2017 2 inconclusive, suspicious and untrustworthy and will not meet the evidentiary assumption attached to a report of the Government Analyst. Confronted with the shortcoming of the anomalous report, the learned Law Officer, nonetheless, still defended the impugned judgment, however, without mark. Prosecution has failed to prove its case against the petitioner to the hilt and it would be unsafe to maintain the conviction. Criminal petition is converted into appeal and allowed, impugned judgment is set aside, the petitioner/appellant shall be released forthwith, if not required in any other case. Judge Judge Judge Islamabad 2nd December, 2019 Not approved for reporting Azmat*

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE ANWAR ZAHEER JAMALI, HCJ MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE FAISAL ARAB CRIMINAL PETITION NO. 113 OF 2016 (On appeal against the judgment dated 15.12.2015 passed by the Lahore High Court, Lahore in Criminal Revision No. 644/2011) Muhammad Hashim Babar … Petitioner VERSUS The State and another …Respondents For the Petitioner: Mr. Shah Khawar, ASC Syed Rifaqat Hussain Shah, AOR For the State: Mr. Nasir Mehmood Mughal, Special Prosecutor, NAB Date of Hearing: 09.06.2016 JUDGMENT FAISAL ARAB, J.- The petitioner was an accused in Reference No. 19/1997 that was filed under Section 14(1) of the repealed Ehtesab Ordinance, 1997. After the promulgation of the National Accountability Bureau Ordinance in 1999, the Reference against the petitioner was renumbered as Accountability Reference No. 9/1999. The allegation against the petitioner was that he has acquired assets beyond his known sources of income. These assets included one half share in the house bearing No. 17 situated at College Road, F- 7/3, Islamabad. He was tried and convicted vide judgment dated 17.11.2000. The punishment that was awarded to him was three years rigorous imprisonment, fine of Rs.2 million and in case of default in the payment of fine he was to undergo a further rigorous imprisonment for eighteen months. Apart from these punishments, his share in the house bearing No. 17, College Road, F-7/3, Islamabad Criminal Petition No. 113/2016 2 was confiscated in favour of the Federal Government. The petitioner challenged the decision of the Accountability Court in the High Court, which maintained the sentence as well as the confiscation of petitioner’s share in the house vide judgment dated 3.2.2005, however, the fine was reduced from Rs.2 million to Rs.500,000/-. The petitioner challenged the decision of the High Court before this Court in Criminal Petition No. 216-L/2005, which was dismissed vide judgment dated 30.4.2010. The petitioner then exercised his right to file review. The Review Petition bearing No. 55/2010 was also dismissed vide order dated 20.9.2010. Thus the matter with regard to the sentence, the fine as well as confiscation of half share in the house attained finality in proceedings that reached upto this Court. 2. On 17.2.2011 the petitioner moved an application in Accountability Reference No. 9/1999 before the Accountability Court by taking the plea that as he has served out his sentence of imprisonment and also paid the fine, the property that was ordered to be confiscated may be ordered to be released and his title to the house be restored. Such a relief was sought inspite of the fact that the matter with regard to punishment had already attained finality in the earlier round of litigation. This application was dismissed by the Accountability Court vide order dated 18.5.2011 on the ground that there is nothing in the decision in the earlier round to suggest that upon payment of fine, the order of confiscation of his share in the house would stand withdrawn. Aggrieved by such decision, the petitioner filed Criminal Revision No. 644/2011 in the High Court, which too met the same fate vide order dated 15.12.2015. Hence this petition. Criminal Petition No. 113/2016 3 3. Learned counsel for the petitioner contended that once the petitioner served out his sentence and paid the fine, the property that was confiscated ought to have been released by the Accountability Court as confiscation would have been only justified had the petitioner failed to pay the fine. 4. When this Court put a question to the learned counsel for the petitioner that apart from the sentence of three years RI, and the payment of fine, the petitioner was also visited with confiscation of his half share in a house then how can he seek release of the confiscated property to which he replied that in law an accused can be visited with fine or confiscation of his property but not with both. It is too late in the day to seek reversal of any punishment that was awarded to the petitioner in the earlier proceedings and maintained upto to this Court. If at all there was any legal basis for such an argument, the same ought to have been agitated by the petitioner in the first round of litigation. Once the matter had attained finality and having failed to obtain decision for recall of the order of confiscation of the house in the proceedings that reached upto this Court, the matter came to rest forever. The petitioner thereafter cannot initiate another round of litigation to avoid a penalty which was awarded to him in the earlier round. This would amount to seeking nullification of the decision of this Court. This Court in the case of Abdul Majid Vs. Abbas Hussain Shah (1995 SCMR 429) went to the extent in holding that where an attempt is made in another round of litigation to nullify the decision that had already attained finality then it amounts to committing contempt of the court. It was held that not only the litigant is to be held in contempt but his Criminal Petition No. 113/2016 4 counsel as well who represented him in such proceedings. Even the judge of the Civil Court who entertained such proceedings in the second round was held in contempt along with the litigant and his counsel. However, in this case we have chosen to exercise restraint. We, however, warn the petitioner and his counsel not to indulge in such type of litigation in future as the same amounts to showing disrespect to the outcome of a legal proceeding that had attained finality. Learned counsel for the petitioner shall also convey our displeasure to the counsel who represented the petitioner before the Accountability Court and in Criminal Revision in the High Court in the second round, so that they may be careful in future and avoid any adverse impact on their professional career. 5. For what has been discussed above, this petition is dismissed and leave is refused. CHIEF JUSTICE JUDGE JUDGE Islamabad, the 9th of June, 2016 Not Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mushir Alam Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.1143 of 2019 (Against the order dated 28.02.2019 passed by the Lahore High Court Lahore in Crl. Revision P. No.(T)2/2019) Nakhuda Mustafa & another …Petitioner(s) Versus The State & another …Respondent(s) For the Petitioner(s): Mr. Kamran Murtaza, Sr.ASC Mr. Tahir Ali Baloch, ASC For the State: Mr. Baqir Shah, State counsel Date of hearing: 16.10.2020. ORDER Qazi Muhammad Amin Ahmed, J.- The petitioners were intercepted by the Fisheries Department of Government of Balochistan while fishing inside internal waters in contravention of the provisions of the Balochistan Sea Fisheries Ordinance, 1971 (Baln Ord. IX of 1971) on 14.12.2018; all on board, 21 in number, were taken into custody; fishing craft, named as Al-Faisal-II along with prohibited net was secured vide inventory of even date; indicted before a learned Judicial Magistrate at Gawadar, they were convicted under section 9 of the Ordinance ibid; the petitioners were sentenced to 9-months R.I. whereas the remainders were sentenced to 28-days, served out without challenge, vide judgment dated 10.01.2019. The confiscated fishing craft was directed to be auctioned. The learned Sessions Judge Gawadar, in appeal vide judgment dated 23.1.2019 maintained the conviction, however, the High Court of Balochistan vide judgment dated 22.02.2019 set aside the fine and also reduced the sentence of imprisonment to the period already undergone by the convicts. Against the above backdrop, the petitioners primarily seek release of the fishing craft, confiscated by the learned trial Magistrate for auction, a course affirmed by the Court of Session as well as the High Court of Criminal Petition No.985 of 2020 2 Balochistan on the ground that the impugned action being harsh merits recall, particularly its being the sole source of sustenance for the petitioners. Mr. Tahir Ali Baloch, ASC, vehemently argued that there was no occasion for the learned Magistrate to return a guilty verdict, as according to him, the prosecution had miserably failed to drive home the charge beyond reasonable doubt, an error that escaped notice of learned Sessions Judge as well as the learned Judge-in- Chamber and as such while the days of incarceration endured by the convicts cannot be recompensed, release of the fishing craft would, nonetheless, indemnify the wrong. 2. Heard. Record perused. 3. We have gone through the record. The petitioners were intercepted while using a banned net within the internal waters. The location is unambiguously established with map Ex.P/3-B. The prohibited net being used for fishing was secured by the raiding party and all those on board were arrested, leaving no space to entertain any hypothesis other than their guilt. Three courts meticulously appraised the evidence to discard bald denial pleaded by the petitioners in the face of positive evidence, supported by scientific proof. In the matter of sentence, the convicts were dealt with leniently. Proviso to section 9 of the Ordinance ibid, in the event of contravention, mandatorily provides auction of fishing craft, thus, the impugned direction by the learned Magistrate, upheld in appeal by the Court of Session as well as the learned Judge-in-Chamber being within the remit of law calls for no interference. Petition fails. Leave declined. Judge Judge Islamabad, the 16th October, 2020 Not approved for reporting Azmat/-

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.1145-L of 2019 (Against the order dated 11.9.2019 passed by the Lahore High Court Lahore in Crl. Misc. No.49695-B of 2019) Saima Ashiq Javed …Petitioner(s) Versus The State through Attorney General of Pakistan, Lahore & another …Respondent(s) For the Petitioner(s): Mr. Zafar Mehmood Chaudhry, ASC along with Saima Ashiq Javed, petitioner For the State: Mr. Khurram Saeed, Additional Attorney General for Pakistan For Respondent No.2: N.R. Date of hearing: 02.06.2020. ORDER Qazi Muhammad Amin Ahmed, J.- Muhammad Awais Rashid and Muhammad Adeel, Junior Auditors in the Accountant General Office Punjab, were the principal architects behind a financial scam that cost public exchequer Rs.57.6 million, misappropriated through bogus pensionary payments to the fake claimants; as the Federal Investigation Agency probed the heist, the petitioner was found to have provided space to the embezzled amounts in her bank account that reflected various transactions comprising deposit by one of the accused as well as withdrawals thereof; attempt to secure bail in anticipation to her arrest failed before the trial Judge on 17.4.2018 whereafter she applied for judicial protection in the High Court in the year 2019, on issuance of proclamation of absconsion; failure brings Criminal Petition No.1145-L of 2019 2 her to this Court. Mr. Zafar Mahmood Chaudhry, learned ASC, while disputing the accusation, craftily pressed into service petitioner’s gender to argue that her remission into custody would perennially embarrass not only the petitioner but the family as well, an avoidable option inasmuch as no investigative benefit would accrue to the prosecution at the given stage of the case. Learned Additional Attorney General for Pakistan has contested the plea; according to him, the prosecution still expects disclosures from the petitioner, likely to be helpful to drive home the charge. 2. Heard. Record perused. 3. It would be less than expedient to comment upon the arguments assailing evidence, comprising documented transactions involving bank accounts including one operated by the petitioner; her denials/explanations is a business to be best attended by the trial Court. Despite a generous opportunity, learned counsel has not been able to point out any mala fide lurking behind the intended arrest. Law does not confer immunity on the petitioner on account of her gender and as such she is required to make out a case for judicial protection; a prima facie nexus compounded by a conduct far from being enviable. Petition fails. Leave declined. Judge Judge Judge Islamabad, the 2nd June, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CRIMINAL PETITION NO. 1145-L OF 2020 (On appeal against the order dated 04.11.2020 passed by the Lahore High Court, Lahore in Crl. Misc. No. 39399-BC/2020) Zafar Iqbal, Mazhar Hussain & Muhammad Saleh … Petitioners VERSUS The State etc … Respondents For the Petitioners: Mr. Abdul Khaliq Safrani, ASC a/w petitioners For Respondent (2): Mr. Ahmed Khan Gondal, ASC For the State: Mr. Muhammad Jaffar, Addl. P.G. a/w Mr. Qamar Abbas, ASI 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 04.11.2020 passed by the learned Single Judge of the Lahore High Court, Lahore, with a prayer to grant pre-arrest bail in cross-version recorded on 12.07.2020 under Sections 337-F(v)/337-F(i)/337- A(i)/109/147/149 PPC (Section 109 PPC was subsequently deleted) in case arising out of FIR No. 375/2020 dated 09.07.2020 registered under Sections 336/337-A(i)/109/34 PPC at Police Station Saddar Mandi Bahauddin, District Mandi Bahauddin in the safe administration of criminal justice. 2. Briefly stated the allegation against the petitioners is that they while armed with ‘sotas’ and ‘kasyan’ have trespassed into complainant’s house and beaten the inmates, due to which the complainant and his brothers sustained injuries. The petitioners were booked in the above-referred cross-version. They applied for pre-arrest bail before the learned Additional Sessions Judge, Mandi Bahauddin and the learned Court while taking into consideration all the facts and circumstances of the case, allowed them bail vide order dated Criminal Petition No. 1145-L/2020 2 15.08.2020 by a well reasoned detailed order. Being aggrieved, the complainant of the cross-version namely Abdul Rauf filed Criminal Miscellaneous No. 39399-BC/2020 before the High Court for cancellation of bail granted to the petitioners, which was adjudicated upon by a learned Single Bench of the High Court and vide order dated 04.11.2020, the bail granting order of the learned Additional Sessions Judge, Mandi Bahaudidin was recalled. Hence, the instant petition for grant of pre-arrest bail to the petitioners. 3. At the very outset, it has been argued by the learned counsel for the petitioners that the order passed by the learned Additional Sessions Judge, Mandi Bahauddin dated 15.08.2020 is well reasoned and when the petitioners have not misused the concession of bail, there was no reason for the learned Single Judge of the High Court to recall the bail granting order while touching upon the merits of the case. Contends that the consideration for grant of bail and cancellation whereof are entirely on different footing and none of the consideration for recalling the order is fulfilled by the learned High Court, therefore, the impugned order is not sustainable in the eyes of law. 4. On the other hand, learned Law Officer assisted by the learned counsel for the complainant has half-heartedly defended the order passed by the learned Single Judge. Learned counsel for the complainant conceded that on merits the petitioners have made out a case for grant of bail, which aspect was considered by the learned Additional Sessions Judge while confirming the ad interim pre-arrest bail to the petitioners. Contends that the High Court can touch upon the merits of the case if it finds that a bail granting order is perverse and capricious and as the order of the learned Additional Sessions Judge was against the law and the facts on the subject, therefore, the learned High Court has rightly recalled the same. 5. We have heard learned counsel for the parties and have gone through the record. There is no denial to this fact that the superior courts of the country since long have issued guidelines wherein the details of the considerations for the grant of bail and cancellation whereof are highlighted. This Court while handing down a judgment reported as Shahid Arshad Vs. Muhammad Naqi Butt (1976 SCMR 360) although found that the bail granting order passed by the High Court is not sustainable in the eyes of law but yet restrained to interfere in such Criminal Petition No. 1145-L/2020 3 order on the ground that there was nothing to show that the accused had misused the concession of bail. In a recent judgment reported as Samiullah Vs. Laiq Zada (2020 SCMR 1115), this Court has enunciated the following principles for cancellation/recalling of bail:- “i) If the bail granting order is patently illegal, erroneous, factually incorrect and has resulted into miscarriage of justice. ii) That the accused has misused the concession of bail in any manner. iii) That accused has tried to hamper prosecution evidence by persuading/pressurizing prosecution witnesses. iv) That there is likelihood of absconsion of the accused beyond the jurisdiction of court. v) That the accused has attempted to interfere with the smooth course of investigation. vi) That accused misused his liberty while indulging into similar offence. vii) That some fresh facts and material has been collected during the course of investigation with tends to establish guilt of the accused. 6. When we confronted the learned Law Officer and the learned counsel for the complainant to show us from the record as to whether the petitioners have violated any of the above-said conditions on the basis of which their bail can be cancelled, they had no answer. In Samiullah supra case, this Court further held that “ordinarily the superior courts are reluctant to interfere into the order extending concession of bail. The rationale behind is that once concession of bail is granted by a court of competent jurisdiction then very strong and exceptional grounds would be required to hamper with the concession extended to a person who is otherwise clothed with free life, any contrary action of the court would be synonymous to curtailing the liberty of such person, which otherwise is a precious right guaranteed under the Constitution of the country. Our judicial system has evolved beside others the concept of "benefit of reasonable doubt" for the sake of safe administration of criminal justice which cannot only be extended at the time of adjudication before the trial court or court of appeal rather if it is satisfying all legal contours, then it must be extended even at bail stage which is a sine qua non of a judicial pronouncement, hence, any unjustified action by the court of law intruding into the affairs would certainly frustrate the free life of an accused person after availing the concession of bail. It is not beyond Criminal Petition No. 1145-L/2020 4 the legitimate expectations that in our society mere levelling of accusation basing upon trumped-up charges is not something beyond imagination. Therefore, false implication/ exploitation which has become epidemic in our society has to be safeguarded by the majesty of the courts.” There is no denial to this fact that the petitioners have been nominated in the cross-version and FIR No. 375/2020 dated 09.07.2020 was registered against the complainant, who is one of the alleged injured of the cross-version. The learned Additional Sessions Judge while granting bail to the petitioners mainly took note of the fact that the occurrence took place on 04.07.2020 whereas the cross-version was recorded on 12.07.2020 after a delay of about 8 days, which has not been satisfactorily explained. He also took note of the fact that in the first medical examination of the injured, no bone fracture was observed but in the second report it came on record, which puts the story of the cross-version in mystery calling for further probe into the guilt of the petitioners, and that during the investigation the narration of the injuries by the complainant was found to be false. The learned High Court in the impugned order did not discuss these aspects of the matter at all. In view of the law laid down by this Court, we are constrained to observe that the learned High Court while recalling the bail granted to the petitioners has fell into error. 7. For what has been discussed above, we convert this petition into appeal, allow it and set aside the impugned order dated 04.11.2020 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.200,000/- 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

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Umar Ata Bandial Mr. Justice Syed Mansoor Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.1146 of 2021 (Against the order dated 24.09.2021 passed by the Peshawar High Court Peshawar in Crl.M.BA No.2378-P/2021) Yasar Khattak …..Petitioner(s) Versus The State & another …Respondent(s) For the Petitioner(s): Mr. Aftab Alam Yasir, ASC For the State: Mr. Shumail Aziz, Addl. A.G. KP For Respondent No.2: Mr. Iltaf Samad, ASC Date of Hearing 24.01.2022. ORDER Qazi Muhammad Amin Ahmed, J.- In the backdrop of an ongoing feud over property, Qaimullah complainant and his brother Hanifullah were assaulted at 9:00 hours on 28.5.2020 within the precincts of Police Station Lound Khurd District Mardan, jointly by Yasir, Anwar Shaheen, Fakhar Alam and Zahir Shah, real brothers inter se. Complainant survived the assault whereas his brother succumbed to the injury. As the investigation progressed, Zahir Shah co-accused was exonerated whereas nothing was recovered from the co-accused except the present petitioner, who pursuant to a disclosure, led to the recovery of a pistol, forensically wedded with two casings secured from the spot. A three member Bench of this Court vide order dated 15.04.2021 admitted co-accused to post arrest bail on the basis whereof, principle of requirement of consistency is being invoked for an identical treatment. 2. Heard. Record perused. 3. It would be advantageous to reproduce the relevant Criminal Petition No.1146 of 2021 portion of the order ibid:- “……It has further been observed by us that the instant case was registered against four persons including the petitioners, out of whom co-accused Zahir Shah with similar allegation has been found innocent during the course of investigation and his name was placed in column No.2 of the report under Section 173, Code of Criminal Procedure. So far as the petitioners are concerned, learned counsel appearing on behalf of State has confirmed that during the course of investigation nothing was recovered at their instance or from their possession. He further confirms under instructions that co-accused Yasir got recovered a pistol and two out of eight empties secured from the spot matched with that pistol. All these circumstances make the case of petitioners one of further inquiry falling within ambit of Section 497(2), Code of Criminal Procedure.” The above findings clearly suggest that accusation, notwithstanding, investigative conclusions drawn by the Investigating Officer, weighed with the Court to favourably receive the bail plea of the co-accused for their distinctly placed in a distinguishable position, that independently called for further probe vis-à-vis the role assigned to them, an analysis that hardly furnishes a ground to invoke principle of consistency qua the petitioner, distinctly saddled, a fact duly noted in the order ibid itself. Petition fails. Leave declined. Judge Judge Judge Islamabad, the 24th January, 2022 Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.1149-L/2017 & Criminal Petition NO.905-L of 2016 (Against the order dated 08.06.2016 of the Lahore High Court, Lahore passed in Cr.A. No.579/2012 with M.R. No.177 of 2012) Nasir alias Nasiree (in Cr.P.1149-L/2017) Shahbaz Ahmed (in Cr.P.905-L/2016) …Petitioner(s) Versus The State (in Cr.P.1149-L/2017) The State & another (in Cr.P.905-L/2016) …Respondent(s) For the Petitioner(s): Mian Muhammad Ismail Thaheem, ASC (in Cr.P.1149-L/2017) Mr. M. Safdar Shaheen Pirzada, ASC Syed Rifaqat Hussain Shah, AOR (in Cr.P.905-L/2016) For the State: Mirza M. Usman, Deputy Prosecutor General Punjab Date of hearing: 29.01.2021. ORDER Qazi Muhammad Amin Ahmed, J. Criminal Petition No.1149-L of 2017: Rizwan Ahmed, deceased, 20, alongwith Shakil Masih, injured (PW-2), in the backdrop of an election rivalry, were waylaid within the precincts of Police Station Tatleyali, District Gujranwala at 9:30 p.m. on 11.2.2006; Shahbaz Ahmed (PW-1) lodged report with the police at 10:30 p.m. wherein the petitioner as well as Qaisar Mehmood and Parvez, supported by two companions, untraced till date were Criminal Petition No.1149-L/2017 & Criminal Petition NO.905-L of 2016 2 arrayed as suspect. The petitioner, attributed a fatal shot to the deceased, stayed away from law whereas Qaisar Mehmood and Parvez Ahmed co-accused, assigned opening shots to the deceased and Shakil Masih (PW-2), respectively, were tried in his absence; convicted for homicide and murderous assault, they were sentenced to imprisonment for life and 10-years rigorous imprisonment; the former died during pendency of the case whereas the latter served out his sentence, reduced by the High Court. After arrest, the petitioner was convicted under clause (b) of section 302 of the Pakistan Penal Code, 1860, vide judgment dated 13.03.2012 by a learned Addl. Sessions Judge at Gujranwala; he was sentenced to death, altered into imprisonment for life vide impugned judgment dated 08.06.2016, vires whereof, are being assailed on the grounds that petitioner’s absconsion notwithstanding, there was no occasion for visiting him with a guilty verdict in a night affair with identity issue, looming large on the scene, merely on the strength of a misconceived and misplaced suspicion, rooted into a past motive that had long withered away. It is next argued that inconsequential recovery without any forensic comparison was entirely beside the mark and, thus, in absence of any corroboration, it was unsafe to place implicit reliance on a flawed ocular account. Learned Law Officer, assisted by counsel for the complainant, has faithfully defended the judgment. 2. Heard. Record perused. 3. Survival of Shahbaz Ahmed (PW-1) unscathed during the assault, by itself, cannot imply his absence from the scene and as such does not undermine his status as a witness worthy of credence; a closely related resident of the locality, his encounter with the deceased and the injured in the neighbourhood, does not raise eyebrows; steps taken by him after the incident are inconsonance with the investigative details and, thus, confirmatory to his presence. A somewhat lengthy cross-examination failed to tremor his testimony, substantially in line with the ocular account furnished by two other witnesses that included an injured as well; it squarely constitutes “proof beyond doubt” , admitting no hypothesis other than petitioner’s guilt whose absence from law for a period exceeding three years does not brilliantly reflect upon his unsupported plea of false implication; in retrospect, it also indemnifies the impact of inconsequential recovery Criminal Petition No.1149-L/2017 & Criminal Petition NO.905-L of 2016 3 of a .30 caliber pistol (P-4), otherwise found consistent with the contours of the fatal shot. Available source of light vividly shown in the site plan, in the given proximity inter se the parties, the issue of identification, blown out of proportion, least compromises preponderance of overwhelming evidence, inescapably pointed on the culpability of the accused, each judicially taken to the task. Concurrent conclusions by the courts below, on our own independent analysis, have been found by us, well within the remit of safe administration of criminal justice and, thus, call for no interference. Petition fails. Leave declined. Criminal Petition No.905-L of 2016 Learned counsel for the petitioner seeks withdrawal of this petition. Dismissed as withdrawn. Judge Judge Islamabad, the 29th January, 2021 Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Umar Ata Bandial Mr. Justice Syed Mansoor Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Crl. Petition No.114 of 2018 (Against the judgment dated 17.01.2018 of the High Court of Sindh, Sukkur Bench passed in Cr. Appeal No.D-99/2016) Abdul Ghafoor …Petitioner(s) Versus The State and another …Respondent(s) For the Petitioner(s): Mr. Muhammad Amjad Iqbal Qureshi, ASC Syed Rifaqat Hussain Shah, AOR For the Respondent(s): Raja Inaam Amin Minhas, Special Prosecutor ANF Date of hearing: 11.10.2021. ORDER Qazi Muhammad Amin Ahmed, J.- The petitioner was on the wheel of an oil-tanker when intercepted by a contingent of ANF Sakkur on 04.05.2013; upon search, an huge cache of cannabis weighing 500 k.g., concealed in the secret cavities, was recovered; Aziz Ahmed co-accused, on board, was also taken to the task; upon indictment, they claimed trial that resulted into their conviction under clause (b) of section 9 of the Control of Narcotic Substances Act, 1997; they were sentenced to imprisonment for life with a direction to pay fine vide judgment dated 25.04.2016. The High Court acquitted Aziz Ahmed from the charge, however, maintained petitioner’s conviction and sentence vide impugned judgment dated 17.01.2018, vires whereof, are being assailed primarily on the ground that prosecution hopelessly failed to drive home the charge inasmuch as none appeared to establish safe transmission of samples, secured at the time of seizure, to the office of Chemical Examiner so as to confirm the narcotic character of the contraband and, thus, there was no occasion for the trial Court as well as the High Court to assume that the seized contraband was Criminal Petition No. 114 of 2018 2 actually cannabis without being presumptuous, an option hardly available under the law. The learned Special Prosecutor has not been able to controvert the position taken at the bar. 2. Heard. Record perused. 3. Heinousness of the charge and huge quantity of the alleged contraband, notwithstanding, the prosecution was under a bounden responsibility to drive home the charge by proving each limb of its case that essentially included production of the witness, tasked with the responsibility of transmitting the samples to the office of Chemical Examiner. Failure is devastatingly appalling with unredeemable consequences that cast away the entire case. Petition is converted into appeal and allowed; the impugned judgment is set aside; the appellant shall be released forthwith if not required to be detained in any other case. Copy of this judgment be transmitted to the Director General Anti Narcotic Force; he shall order a probe into the grievous lapse in prosecution of the case with a view to fix responsibility for the delinquents. Judge Judge Judge Islamabad, the 11th October, 2021 Azmat/-

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 Nos.1152 & 1153 of 2020 (Against the judgment dated 07.07.2020 passed by the Islamabad High Court Islamabad in Crl. Appeal No.8 of 2011) Muhammad Makki (in Crl. P.1152/2020) Alam Sher & another (in Crl. P.1153/2020) …Petitioner(s) Versus The State, etc. (in both cases) …Respondent(s) For the Petitioner(s): Ch. Afrasiab Khan, ASC Syed Rifaqat Hussain Shah, AOR For the State: Mr. Niazullah Khan Niazi, Advocate General, Islamabad For the Respondent(s): Rukhsana Kousar (sister of complainant) Date of hearing: 11.01.2021. ORDER Qazi Muhammad Amin Ahmed, J.- Indicted for abduction for ransom, Muhammad Makki, Alam Sher, Aamir Rehman and Abdul Ghafoor, in absence of Adnan Khan, proclaimed offender, were tried through a private complaint by a learned Special Judge Anti-Terrorism Act, Rawalpindi; they were acquitted of the charge vide judgment dated 18.01.2011; barring Abdul Ghafoor, the abductee successfully assailed acquittals before the Islamabad High Court; convicted under section 365 of the Pakistan Penal Code, 1860, the remainder were sentenced to Criminal Petition Nos.1152 & 1153 of 2020 2 7-years R.I. with a direction to pay fine in the sum of Rs.500,000/- each, pre-trial period inclusive, vide impugned judgment dated 07.07.2020 vires whereof, are being challenged on the grounds that there was no occasion for the High Court to overturn well reasoned judgment of the trial Court, that too, after maintaining acquittal of identically placed co-accused, in the absence of convincingly strong grounds as required by law. It is next argued that after High Court’s refusal to accommodate complainant’s plea of abduction to exact ransom, the entire case was cast away and, thus, intervention by this Court is most called for. The learned Advocate General Islamabad has supported the impugned judgment; according to him, the learned Special Judge ran into error in ignoring the overwhelming evidence that squarely established abduction and subsequent recovery beyond a shadow of doubt; he adds that prosecution’s failure on coordinate charge, does not tremor its case to the extent of abduction and, thus, a partial failure must not result into denial of justice to a victim, grievously wronged. 2. The incident dates back to 15th of September 2009 during late hours within the precincts of Police Station Shalimar when Aamir Shahzad (PW-4) had taken his wife and sister to a dentist in F-11; he left the family to himself offer Ishaa prayer; he failed to rejoin the family in inclement weather, that returned home on its own, latter to find him gone missing. On the following night at about 9/10:00 p.m, the complainant received a call from abductee’s cell phone; an anonymous caller demanded for 25 crore as ransom. The vehicle was subsequently found abandoned near a filtration plant in F-11/4; the police were taken on board. Muhammad Afzal (PW-3), residing in the United States rushed back to rescue the abductee, no other than his brother; in his struggle to locate the abductee, he was approached by Abdul Ghafoor and Muhammad Makki accused; they offered him their good offices for a negotiated settlement; deal for finally struck for rupees 10 crore; it is in this backdrop, the Investigating Officer along with the witnesses, with photostat bills, discreetly confronted Aamir Rehman accused; in pursuance to his disclosure, they recovered the detenue from Flat No.5 of a high-rise building; Muhammad Makki and Alam Sher accused were also taken into custody from the scene. Dissatisfied with the police investigation, the family preferred a private Criminal Petition Nos.1152 & 1153 of 2020 3 complaint to prosecute the offenders by producing as many as eight witnesses, CWs inclusive. 3. Heard. Record perused. 4. Spreading over 32 pages, the trial Court judgment deals, at inordinate lengths, with issues primarily peripheral in nature, highlighting lapses in the investigative process; it blames the complainant and her witnesses for some delay in their disclosures as well as certain omissions regarding place of abductee’s confinement in the private complaint; concomitant discordance of a crisis devastating a terror stricken family has been unnecessarily overstretched to burden the prosecution to meet misconceived and artificial standards of proof, hardly relevant to the core issue while sidelining the preponderance of evidence furnished by the natural witnesses, with no axe to grind, rightly assessed by the High Court to have successfully driven home the charge. Peaceful equilibrium in the society essentially requires a dynamic and realistic approach in administration of criminal justice, no doubt with all procedural fairness and safeguards, essential to ensure fair trial to an accused by keeping the scales in balance. The present case starts with recourse to law by abductee’s sister on the following day of former’s disappearance after the vehicle last used by the family was spotted abandoned; the episode started with a script that cannot be viewed as suspect. Muhammad Afzal (PW-3) rushed back from the United States to rescue his brother and it was in this backdrop that Muhammad Makki and Abdul Ghafoor emerged from the blue as the “saviors” ; the chain of circumstances, ultimately connects itself with the abductee, latched under the surveillance of his captors; consistent and confidence inspiring, preponderance of formidable evidence is halfheartedly met by the defence with bald denials alone. Prosecution’s partial failure on the charge of section 365-A of the Act ibid as well as acquittal of Abdul Ghafoor on account of his absence from the scene at the time of raid on the D-day, though embarrassing to the prosecution, nonetheless, does not adversely reflect upon the integrity of the charge, firmly resting in the totality of chain of circumstances, ranging from abduction, surreptitious confinement of the abductee, ultimately leading to his recovery with accused on guard from a premise under their knowledge and occupation. Criminal Petition Nos.1152 & 1153 of 2020 4 Acquittal is not an immutable divine declaration of redemption; it is adjudication by a tribunal manned by individuals, susceptible to error and, thus, in order to avoid miscarriage of justice, a duty is cast upon the Appellate Court to undertake an effective and meaningful scrutiny of entire evidence; the High Court has remedied a grievous wrong, thus, no interference is called for. Petitions fail. Leave declined. Judge Judge Judge Islamabad, the 11th January, 2021 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MAQBOOL BAQAR MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CRIMINAL PETITION NO. 1154 OF 2021 (On appeal against the order dated 30.08.2021 passed by the Peshawar High Court, Peshawar in Cr.MBA No. 798- A/2021) Umer Khan … Petitioner VERSUS The State and another … Respondents For the Petitioner: Raja Faisal Younas Abbasi, ASC For the State: Syed Nayyab Hussain Gardezi, DAG Mr. Basit, I.O Date of Hearing: 01.11.2021 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 30.08.2021 passed by the learned Single Judge of the Peshawar High Court, Peshawar, with a prayer to grant post-arrest bail in case registered vide FIR No. 21/2021 dated 06.07.2021 under Section 22(1) of Prevention of Electronic Crimes Act, 2016 at Police Station Cyber Crimes Reporting Center, Abbottabad, in the interest of safe administration of criminal justice. 2. Briefly stated the allegation against the petitioner is that he was sharing child pornographic content on the Facebook through his mobile. On receipt of the information from the Facebook, the matter was inquired into by the Federal Investigating Agency and after its conclusion the aforesaid FIR was registered and the petitioner was apprehended. 3. At the very outset, it has been argued by learned counsel for the petitioner that the petitioner has been falsely roped in this case against the actual facts and circumstances of this case. Contends that there is no direct evidence to show that the petitioner CRIMINAL PETITION NO. 1154 OF 2021 2 has shared the pornographic content on Facebook. Contends that no victim has been associated in the present case. Lastly contends that the maximum punishment for the offence with which the petitioner is charged with is seven years and the same does not fall within the prohibitory clause, therefore, the petitioner may be released on bail. 4. On the other hand, learned Law Officer has defended the impugned order whereby post-arrest bail has been declined to the petitioner. He contended that the petitioner has committed a heinous offence and there is sufficient material available on record to connect him with the commission of the crime, 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 with their assistance. As per the contents of the crime report, the allegation leveled against the petitioner is that he was involved in sharing child pornographic content through his Facebook profile via his mobile device. There is no denial to this fact that it was the Facebook Authority who had contacted Federal Investigating Agency and had provided the information against the petitioner, upon which the FIA had inquired into the matter. The mobile phone of the petitioner was taken into possession and was sent to Forensic Science Laboratory and according to the report of the FSL, the Facebook profile of the petitioner was found active on his mobile phone and child pornographic videos and images were also extracted from his mobile phone. The mobile numbers which the petitioner was using in his mobile device were also found active and the same were registered in his name. We have noticed that one of the most alarming social evil prevailing in the society is child pornography. It has created a havoc in society as it contains a great threat to morality and the future of children. One of the reason for the rise of child abuse/rape cases is squarely because of child pornographic content. The concerns regarding child sexual abuse and exploitation have been prevailing in the society in the past also. However, due to various factors, the gravity and impact of the offense of child pornography is increasing at an alarming rate and this menace needs to be curbed with iron hands. Although the offence with which the petitioner has been charged with does not fall within the prohibitory clause of CRIMINAL PETITION NO. 1154 OF 2021 3 Section 497 Cr.P.C. and the maximum punishment for the same is seven years but keeping in view the nature of accusation, its impact on the society and the material collected so far merits the case to fall within the exception of granting bail when the offence falls within the non-prohibitory clause. Otherwise, it is not an absolute principle of law. So far as the argument of learned counsel for the petitioner that no victim has been associated in the case is concerned, the allegation against the petitioner is of spreading child pornographic videos and not of making them. Since when he was doing this act and how many children’s videos has he shared so far is yet to be determined. In any case, it is a crime to hollow out the society, therefore, the argument of the learned counsel for the petitioner is of no help to the petitioner. Even otherwise, this petition is barred by 03 days and no plausible explanation for the condonation of the delay has been given. 6. For what has been discussed above, this petition having no merit is accordingly dismissed and leave to appeal is refused. Before parting with the order, we direct the learned Trial Court to proceed with the trial expeditiously and conclude the same as early as possible. JUDGE JUDGE Islamabad, the 1st of November, 2021 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MAQBOOL BAQAR MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CRIMINAL PETITION NO. 1183 OF 2021 (On appeal against the order dated 15.10.2021 passed by the Peshawar High Court, Peshawar in Cr.Misc (Bail Application) No. 3098-P/2021) Sikandar Hayat … Petitioner VERSUS The State and another … Respondents For the Petitioner: Mr. Muhammad Fahim Wali, ASC For the State: Mr. Shumail Aziz, Addl. A.G Mr. Ziaullah, Inspector Date of Hearing: 01.11.2021 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 15.10.2021 passed by the learned Single Judge of the Peshawar High Court, Peshawar, with a prayer to grant post-arrest bail in case registered vide FIR No. 966 dated 03.08.2021 under Sections 302/324/148/149 PPC at Police Station University Town, Peshawar, in the interest of safe administration of criminal justice. 2. Briefly stated the allegation against the petitioner is that he along with co-accused while armed with firearms assaulted on the complainant party and due to the fire shots made by the petitioner, two persons have lost their lives. 3. At the very outset, it has been argued by learned counsel for the petitioner that the petitioner has been falsely roped in this case against the actual facts and circumstances of this case. Contends that the prosecution has involved five accused in the present case and the role ascribed to each one of them including the CRIMINAL PETITION NO. 1183 OF 2021 2 petitioner is of general nature. Contends that the report of the FSL as to empties suggest that they were fired from one and the same weapon and in this view of the matter the case of the petitioner falls within the ambit of further inquiry, therefore, he is entitled for the concession of bail. 4. On the other hand, learned Law Officer has defended the impugned order whereby post-arrest bail has been declined to the petitioner. He contended that the petitioner has been specifically nominated in the crime report with a specific role of firing at the deceased persons and the three natural eyewitnesses are deposing against him, 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 with their assistance. As per the contents of the crime report, the allegation leveled against the petitioner is that he along with four co-accused while armed with firearms has launched an attack on the complainant party and due to fire shots made by them two persons have been done to death. However, we have noted that only a general role of firing has been ascribed to the petitioner and no details have been given as to what kind of weapon the petitioner had used and on which parts of the body of the deceased, the alleged fire shots made by him landed. We have also noted that from the place of occurrence, 27 empties were taken into possession, which according to the report of the FSL were found to be fired from one and the same weapon. In this view of the matter, when the role ascribed to the petitioner is of general nature and according to the report of FSL only one weapon was used in the commission of the crime, it is the Trial Court who after recording of evidence would decide about the guilt or otherwise of the petitioner and until then the petitioner cannot be kept behind the bars for an indefinite period. Keeping in view all the facts and circumstances, the case of the petitioner squarely falls within the purview of Section 497(2) Cr.P.C. entitling for further inquiry into his guilt. 6. For what has been discussed above, we convert this petition into appeal, allow it and set aside the impugned order dated 15.10.2021. The petitioner is admitted to bail subject to his CRIMINAL PETITION NO. 1183 OF 2021 3 furnishing bail bonds in the sum of Rs.200,000/- with one surety in the like amount to the satisfaction of learned Trial Court. The above are the detailed reasons of our short order of even date. JUDGE JUDGE Islamabad, the 1st of November, 2021 Not Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE MUSHIR ALAM MR. JUSTICE DOST MUHAMMAD KHAN Criminal Petition No.1188/2016 (On appeal from the judgment dated 2.11.2016 passed by the Lahore Hgih Court, Bahawalpur Bench, Bahawalpur in Crl.Misc. No.1850/B/2016) Muhammad Noman … Petitioner VERSUS The State and another … Respondent(s) For the petitioner: Mr. Azam Nazeer Tarar, ASC Syed Rifaqat Hussain Shah, AOR For the respondent/State: Ch. Muhammad Sarwar Sindhu, Addl.PG,Pb Maqbool Ahmad, Inspector, CID Muhammad Ali, SI/SHO Date of hearing: 12.1.2017 ORDER Dost Muhammad Khan,J-. Brief facts of the case are that, according to Crime No.44/16, registered by Police Station CTD, Multan on 9.5.2016 at 4:30 pm, Noor Hassan ASI/CTD Bahawalpur alleged in his written complaint, sent to the Police Station that he was conducting raid near Toll Plaza, Bahawalpur when a secret informer told that five persons carrying handbags, were proceeding towards the Railway Bridge on river Sutlaj and appeared to be suspected militants, Crl.P.1188/16 2 thus, he bolted towards the spot with the police party and near Railway Bridge, river Sutlaj they spotted the gang, who attempted to flee away however, their attempt was foiled. On their arrest, they disclosed their names as (i) Abdul Hameed (ii) Sikandar Ilyas (iii) Usman Arif (iv) Muhammadullah while the fifth was the petitioner. From each one of the accused, one handbag each was recovered, containing explosive substances, time-bombs, arms & ammunition and some literature. Each bag was inscribed with the slogan, "ﺒﮐا ﷲﺮ". Full detail of the explosive substances, time-bombs, pistols, arms & ammunition of different kinds is mentioned in the report thus, they were charged for crimes u/S.9-ATA, S.7-ATA, S.4 Explosive Substances Act, S.13-2(A)/20, Arms Ordinance, 1965 and amended Ordinance, 2015. We have heard the learned ASC for the petitioner, Ch. Muhammad Sarwar Sindhu, learned Additional Prosecutor General, Punjab and have also put queries to Maqbool Ahmed, Inspector CTD and Muhammad Ali, SI/SHO, who in quick succession conducted investigation. 2. Learned counsel for the petitioner argued with a considerable vehemence that the petitioner was arrested on 6.4.2016, which fact is evident from the application of brother of the petitioner namely, Muhammad Salman Arif, who has alleged therein that on the night between 3/4 April, twenty to twenty five persons, dressed in black uniform, entered their house Survey No.55-A, New Muslim Town, Lahore without any lawful authority and took away the petitioner along with cell phones and three licensed guns/rifles, ATM Card and cash Crl.P.1188/16 3 amount. It is further stated in the application that he immediately called Emergency Response Force at 1:05 hrs, which reached at the spot after 1 ½ hrs. 3. This application of brother of the petitioner was duly entered by Rescue Police-15 in daily diary vide serial No.564 on the same date, with the exact time, certified copy of which is available at Pg.24. It was further urged that the petitioner is a businessman and a tax payer and record to this effect has been annexed with this petition and has never been reported to be a militant himself or in anyway belong to any militant group, nor has been found to be a facilitator. Learned ASC elaborating his point of view further referred to filing of “Habeas Corpus” petition before the Justice of Peace, though with some delay but explaining the same he urged that the petitioner’s brothers and mother were searching about the petitioner and have made several complaints/applications to different authorities including the SHO, PS Muslim Town, Lahore, RPO, Lahore and SSP as well, however, no inquiry/investigation was conducted about the incident of abduction of the petitioner from his house because of malafide intention of the police. We put questions to the SHO, Muslim Town that when such a report was made with Rescue Police-15 and he was also approached in this regard, why he did not investigate into the incident, as to whether the same had indeed taken place in that manner or it was a false information, given by the brother of the petitioner, however, he admitted that he did not perform his duties under the law and also could not offer any explanation for this negligent omission, as the written complaint submitted to him by the brother of the petitioner about the abduction of the petitioner from his house, was not inquired Crl.P.1188/16 4 into or investigated in any manner whatsoever, rather the same was deliberately suppressed. 4. We also put questions to the Investigating Officer of this case, as to whether the petitioner was found connected with any militant group or had been found financer or provided any other facility to such gang, his answer was a big, “NO”. He was also put a question that, when the incident of abduction of the petitioner, from his house was brought to his notice by the petitioner himself and his brother through a written application, whether he took a little pain to inquire from the Rescue Police-15 about the said incident or from the SHO of Muslim Town, Lahore, his reply was also in the negative. He was further asked, as to why this aspect of the matter was not inquired into/investigated, he was unable to offer any explanation, much less plausible. 5. True that the country is confronted with a formidable terrorist activities from one end to the other so much so, that twice the Armed Forces were called in aid of the civil administration/government to suppress this grave mischief of a considerable magnitude, in which Army Officers/soldiers as well as the personnel of other Law Enforcing Agencies have suffered causalities in thousands, while the public was the major victim besides the public and private properties were extensively damaged through explosive substances planted or through suicidal attacks, however, this should not, in any manner, distract the Court of Law from doing justice in a given case, when, the investigation/inquiry carried out is neither satisfactory nor it is free from malice and the citizens’ implication in Crl.P.1188/16 5 such nature of cases is not free from reasonable doubt, thus, they cannot be left at the mercy of the police’s traditional chicanery indulging in such like tactics, not authorized by the law. 6. While dealing with the liberty of the citizen at bail stage or otherwise, the Courts are required to take extra degree of care and caution so that actual terrorists/militants, challenging the writ of the State, may not go scot free, nor innocent citizens are grilled and put behind the bars, painting him/them as terrorists or belonging to militant gangs/groups because, in the present situation prevailing throughout the country, chances could not be ruled out of false implication of innocent citizens for ulterior motive, in some rare cases. 7. It is essential and obligatory duty of the superior police officers of the rank of SP, SSP and above that, when the accused make such allegations, supported by record of the Police itself, they have to take charge of the investigation and to dig out the truth because it is the duty of the Police as a whole, irrespective of rank and file to bring the correct and true facts/materials before the Court of Law so that the actual criminals are punished, sans innocent citizens. 8. In the present case, the facts and circumstances would show, that the investigation was one-sided and the other aspects of vital importance were not touched much less investigated into without any explanation offered by the investigating officer present in court, therefore, the case of the petitioner squarely falls within sub section (2) of S-497 Cr.P.C being susceptible to further inquiry. Therefore, in our considered view, the petitioner is found entitled to grant of bail as a matter of right and not as a matter of grace. Crl.P.1188/16 6 Accordingly this petition is converted into appeal and the same is allowed. 9. These are the detailed reasons for our short order of today which is reproduced below:- “For the reasons to be recorded later, petitioner is admitted to bail subject to furnishing solving bonds in the sum of Rs.200,000/- (two lac) with two PR bonds in the like amount to the satisfaction of the trial court.” Judge Judge Islamabad, the 12th January, 2017 Nisar/- Approved For Reporting.

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 Nos.1292-L and 1196-L of 2015 (Against the judgment dated 08.10.2015 passed by the Lahore High Court Lahore in Criminal Appeal Nos.2-J-ATA/2013, 2127/2010 with C.S.R. No.51-T/2010 ) Muhammad Yasin (in Cr.P.1292-L/2015) Muhammad Jameel (in Cr. P. 1196-L/2015) …Petitioner(s) Versus The State through P.G. Punjab (in Cr. P. 1292-L/2015) Muhammad Yasin & another (in Cr. P. 1196-L/2015) …Respondent(s) For the Petitioner(s): Mr. Naveed Ahmed Kh, ASC (in Cr. P.1292-L/2015) For the State: Mr. Kurram Khan, Additional Prosecutor General Punjab For the Complainant: Ch. Ghulam Sarwar Nihung, ASC (in Cr.P. 1196-L/2015) Date of hearing: 14.07.2020. JUDGMENT Qazi Muhammad Amin Ahmed, J.- Muhammad Ashraf son of Nazeer Ahmed, 50, was shot dead at 9:30 p.m. on 4.6.2008 within the remit of Police Station Ghulam Muhammad Abad, Faisalabad; incident was reported by his nephew Muhammad Jameel (PW-10), 10:20 p.m. at the spot; prime target of the assault Rashid struggled with multiple injuries, breathed his last on 14.6.2008; from amongst the witnesses Muhammad Zaman and Qaisar survived the assault; they were medically noted with firearm injuries, however, opted to stay away from the witness- box. Criminal Petition Nos.1292-L and 1196-L of 2015 2 According to the complainant, on the fateful night, he was at his grocery store along with Muhammad Ashraf son of Nazeer Ahmed, Muhammad Iqbal son of Muhammad Hussain and Muhammad Ashraf son of Muhammad Rafique when Muhammad Yasin, Younas alias Kala, Shahid alias Mithu, Muhammad Azam, Imtiaz Butt and Ilyas accompanied by an unknown companion confronted Rashid deceased who alongside Zulfiqar Ali, on a motorbike had just arrived at the scene. Muhammad Yasin along with the co-accused subdued Rashid deceased and after hitting him with an iron rod forced him to board on a rickshaw; Muhammad Ashraf deceased, Qaisar Manzoor and Muhammad Zaman attempted to intervene when all the accused with their pistols resorted to firing; a fire shot by Muhammad Yasin, petitioner, trapped Muhammad Ashraf deceased on his left chest, a fire shot by Azam (P.O.) hit Rashid on his face followed by a fire shot by Ilyas landing on the backside of his shoulder. Unknown assailant targeted Muhammad Zaman on his left deltoid while Shahid alias Mithu fired on the left flank of Qaisar Manzoor whereafter all the accused resorted to indiscriminate firing and took to the heels within the view of terror stricken neighbourhood. It is alleged that the assailants dealt in narcotics and they suspected Rashid deceased to have intermediated information to the police. Spot inspection includes seizure of blood as well as 22 casings; Muhammad Zaman and Qaisar Manzoor PWs were medically examined under a police docket at 10:20 p.m. followed by Rashid deceased at 10:40 p.m. however, autopsy on Ashraf deceased was conducted following day at 9:30 a.m. The accused, barring Azam and Shafqat, P.Os, unanimously claimed trial on 04.01.2010 that culminated into their acquittal except the petitioner vide judgment dated 21.07.2010; convicted on two counts of homicide as well as terrorism, he was sentenced to death on each, altered in appeal into imprisonment for life vide impugned judgment dated 8.10.2015. 2. Learned counsel for the petitioner contends that there was no occasion for the learned trial Court to return a guilty verdict qua the petitioner after it had disbelieved entire bulk of prosecution evidence qua majority of the accused that included Ilyas co-accused as well who was assigned a direct fire shot to Rashid deceased; an error repeated by the High Court in appeal; that prosecution’s failure to bring forth Muhammad Zaman and Qaisar Manzoor, the injured witnesses of the episode, tremors the very foundation of the case; seizure of 22 casings notwithstanding, Criminal Petition Nos.1292-L and 1196-L of 2015 3 nonetheless, in the absence of recovery of weapons except for an iron rod, has been cited to argue that occurrence did not take place in the manner as alleged in the crime report. Learned Law Officer assisted by learned counsel for the complainant has faithfully defended the impugned judgment; the latter while referring to the magnitude of violence inflicted upon the deceased, including Rashid who laid his life for siding with the law, prayed for reversal of the alteration of sentence, contending death being a conscionable wage in circumstances. 3. Heard. Record perused. 4. Medical examination of Rashid deceased as well as given up witnesses unambiguously suggest that occurrence took place on or around the time mentioned in the crime report; venue being at a distance of 1 ½ k.m. from the police station, arrival of the police and conclusion of complaint at 10:20 p.m. apparently reflect a remarkable promptitude, however, autopsy of Muhammad Ashraf deceased, held as late as at 9:30 a.m. following day, despite arrival of the injured and the dead body during the preceding night at 10:20 p.m. is quite intriguing. It is further mind boggling that examination of the injured in the hospital and recording of complaint at the spot are steps taking place at the same time i.e. 10:20 p.m. Coincidence even though without obliquity, nonetheless, when taken in the totality of circumstances admits a possibility that crime report was not recorded at a point of time purported therein. Delayed autopsy in a tertiary hospital i.e. Allied Hospital Faisalabad reinforces the above hypothesis that in retrospect cast its shadow on the ostensible promptitude behind the crime report and, thus, the argument that the foundation of the case was laid after deliberations and consultations cannot be dismissed out of hand. Desertion of Muhammad Zaman and Qaisar Manzoor (given up PWs), statedly won over by the accused, though reflects a possible societal phenomena unfortunately not uncommon, nonetheless, being the best witnesses in circumstances, their absence from the scene certainly calls for extra caution. The witnesses unanimously blamed Ilyas acquitted co-accused to have targeted Rashid deceased with a straight fire shot landing on the back of his left shoulder; while first Medical Officer i.e. Dr. Muhammad Yousaf (PW-1) who examined the deceased in injured condition remained somewhat reticent on the nature of injury, the autopsy conducted by Dr. Bashir Ahmed (PW-2) clearly established the injury attributed to Ilyas Criminal Petition Nos.1292-L and 1196-L of 2015 4 acquitted co-accused as an aftermath of entry wound, being exit of injury on the right cheek. Prosecution’s failure qua Ilyas accused both before the trial Court as well as in the High Court entails inescapable repercussions as the set of witnesses disbelieved qua Ilyas would essentially require independent corroboration vis-à-vis the remainder. With a non-specific and vaguely formulated motive, concurrently held out of consideration, in the absence of consequential recoveries, the witnesses, disbelieved with regard to an identically placed co-accused cannot join themselves to corroborate each other against the convicts; acquittal of Shahid alias Mithu, Imtiaz Butt, Muhammad Younas alias Kala and Saeed, though assigned roles that san harm to the deceased, nonetheless, further compound the prosecution predicament inasmuch as they were alleged to have resorted to indiscriminate firing; their departure cast away the entire case. On the whole prosecution case is found fraught with doubts, embedded in and deducible from the stated positions and, thus, it would be unsafe to maintain the convictions on the left over fragments. Criminal Petition No.1292-L of 2015 is converted into appeal and allowed; petitioner/appellant is 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.1196-L of 2015 stands dismissed. Judge Judge Judge Lahore, the 14th July, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Umar Ata Bandial Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.1205 of 2019 (Against order dated 24.09.2019 passed by the Peshawar High Court Peshawar in Crl. Appeal No.946-P of 2018) Asmat Ali …Petitioner(s) Versus The State …Respondent(s) For the Petitioner(s): Mr. M. Amjad Iqbal, ASC Syed Rifaqat Hussain Shah, AOR For the State: Mr. Arshad Hussain Yousafzai, ASC Date of hearing: 04.05.2020. ORDER Qazi Muhammad Amin Ahmed, J.- During an haul up, Asmat Ali, petitioner, on the wheel of truck bearing No.Kohat-C-1417 was intercepted by a contingent of Police Station Cantt. Kohat; 9600 grams of contraband, forensically confirmed as cannabis, recovered from the tool box of the vehicle; learned trial Judge vide judgment dated 24.10.2018 returned a guilty verdict; convicted under section 9 (c) of the Control of Narcotic Substances Act, 1997, he was sentenced to 10-years RI with a fine of Rs.100,000/-, upheld by the High Court vide impugned judgment dated 24.09.2019, vires whereof, are being assailed on a variety of grounds. 2. Heard. 3. We have examined the statements of recovery witnesses i.e. Muhammad Ali, SHO (PW-1) and Anwar Ali Head Constable/Incharge Check Post (PW-2); they are in tune with each other with no apparent motive to hound the petitioner on a trump up charge; substantial quantity of the contraband rules out a manipulated recovery. Petitioner, in his bid to disproof the charge, admitted most parts of the transaction on the eventful day except for an obvious denial regarding Criminal Petition No.1205 of 2019 2 the contraband; appearance of his defence witness Diswar Ali (DW-1) on behalf of the Assistant Commissioner District Lower Orakzai to suggest exit of the vehicle on 7.10.2017 from Boya Check Post fails to contradict petitioner’s interception at the check post. On the contrary, petitioner’s own statement on oath, obliquely confirmed by his witness, puts him in the saddle. Alleged insufficiency of “protocol” mentioned in the forensic report is beside the mark; it conclusively establishes the narcotic character of the substance with sufficient details regarding the test carried out. Conclusions concurrently drawn by the courts below, being in accord with the principles of safe administration of criminal justice, do not call for interference. Petition fails. Leave declined. Judge Judge Islamabad, the 4th May, 2020 Not approved for reporting Azmat/-

                                                                                                                                                                            1                                                                                                                                                                                                                                                                                                    2                                                                                                                                                                                                                               3                                                                                                                                                                                              4 5

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Umar Ata Bandial Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.120 of 2020 (Against judgment dated 18.11.2019 passed by the Lahore High Court Lahore in Cr. Appeal No.219286/2018) Allah Rakha …Petitioner(s) Versus The State through P.G. Punjab & another …Respondent(s) For the Petitioner(s): Mr. M. Shahzad Siddiqui, ASC Syed Rifaqat Hussain Shah, AOR For the State: N.R. Date of hearing: 07.05.2020. ORDER Qazi Muhammad Amin Ahmed, J.- Petitioner was detached as Civil Nazir with the learned Senior Civil Judge Sialkot; during routine audit, he was found to have misappropriated various amounts deposited under different heads, calculated as Rs.36,00,000/; confronted with his misconduct, he deposited back a sum of Rs.7,00,000/-, with undertaking to clear the remainder of liability, a commitment that remained unfulfilled. After preliminary inquiry, he was sent to face trial before the learned Special Judge Anti- Corruption (Provincial) Gujranwala; vide judgment dated 16.5.2018, he was returned a guilty verdict, in consequence whereof, he was convicted and sentenced as below:- “Under section 409 PPC, 10-years RI with fine of Rs.5,00,000/- Under section 420 PPC, 5-years RI with fine of Rs.5,00,000/- Under section 468 PPC, 5-years RI with fine of Rs.5,00,000/- Under section 471 PPC, 5-years RI with fine of Rs.5,00,000/- Under section 5(2)C PCA, 5-years RI with fine of Rs.5,00,000/- In case of default of payment of fine, he shall further undergo six months SI for each offence; sentences shall run concurrently with benefit of section 382-B Cr.P.C..” Criminal Petition No.120 of 2020 2 Petitioner’s appeal met with no better fate in the High Court vide impugned judgment dated 18.11.2019, vires whereof, have been assailed on a variety of grounds, however, upon reconsideration, the learned counsel has prayed for reduction of sentence recorded under section 409 of the Pakistan Penal Code, 1860 from ten years to five years, a quantum equivalent to coordinate charges. 2. We have thoughtfully considered the alternate submission. The petitioner has been facing the consequences of his misconduct since the year 2015; he deposited back a sum of Rs.700,000/- and failed to clear the remainder liability on account of his obvious financial incapacity; he has been dismissed from the service. The learned trial Judge considered a period of five years as appropriate sentence on coordinate charges, however, awarded maximum sentence provided for an offence under section 409 of the Code ibid. Although the petitioner being a part of system of administration of justice was certainly under a heavier onus to maintain highest standard of integrity and rectitude, nonetheless, his indiscretion has not brought him anything other than an abiding stigma and loss of post retirement comforts, therefore, in the above backdrop, reduction of sentence recorded on the said count to five years RI would be a wage, conscionable in circumstances. The petition is dismissed, however, the sentence is accordingly reduced to run concurrently with coordinate charges, pre-trial period inclusive. Judge Judge Islamabad, the 7th May, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Maqbool Baqar Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.1210 of 2020 (Against the order dated 25.09.2020 passed by the Peshawar High Court in Cr. Misc. (BA) No.2881-P/2020) Lal Marjan Abid …Petitioner(s) Versus Islam Gul and others …Respondent(s) For the Petitioner(s): Mr. Asad Ullah Khan Chamkani, ASC For the Respondent(s): Mr. Zahid Yousaf Qureshi, Additional Advocate General, Khyber Pakhtunkhwa with M. Aslam, SI Date of hearing: 09.12.2020. ORDER Qazi Muhammad Amin Ahmed, J.- Two masked pillion riders surprised the complainant and the witnesses with sudden indiscriminate firing at 5:45 p.m. on 28.7.2020 within the remits of Police Station Barra District Khyber; from amongst the injured, Safeer subsequently succumbed to the injuries. As the investigation progressed, the complainant came up with a supplementary statement purportedly recorded on 6.8.2020 wherein the petitioners were arrayed as the culprits against the backdrop of deceased’s runaway marriage with a lady related with them, way back in the year 2012. 2. Heard. Record perused. 3. Be that as it may, it is prosecution’s own case that the assailants who emerged at the spot all of a sudden had concealed their faces with masks; 19 casings of 7.66 caliber secured from the spot suggest use of an automatic weapon, indicating suddenness of the Criminal Petition No.1210 of 2020 2 episode in retrospect. Investigating Officer’s failure to recover the weapon or the motorbike used during the occurrence brings fate of prosecution case to be essentially decided on the basis of supplementary statement, evidentiary value whereof, is to be best assessed after recording of evidence. A case for petitioners’ release on bail is made out within the contemplation of sub section 2 of section 497 of the Code of Criminal Procedure 1898; they shall be released upon furnishing bonds in the sum of Rs.500,000/- with one surety each in the like amount to the satisfaction of the learned trial Court. Petition is converted into appeal and allowed. Judge Judge Islamabad, the 9th December, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CRIMINAL PETITION NO. 1212-L OF 2022 (On appeal against the order dated 21.09.2022 passed by the Lahore High Court, Lahore in Crl. Misc. No. 34009-B/2022) Muhammad Imran … Petitioner Versus The State etc … Respondents For the Petitioner: Mr. Abdul Samad Khan Bisriya, ASC a/w petitioner (Both via video link from Lahore) For the State: Nemo For the Complainant: Nemo Date of Hearing: 01.03.2023 ORDER SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through the instant petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed the order dated 21.09.2022 passed by the learned Single Judge of the learned Lahore High Court, Lahore, with a prayer to grant pre- arrest bail in case registered vide FIR No. 160 dated 01.05.2022 under Section 379 PPC at Police Station Shahbore Okara, in the interest of safe administration of criminal justice. 2. Briefly stated the prosecution story as narrated in the FIR is that the complainant had cultivated wheat crop on her agricultural land measuring 2 kanals situated in District Okara. On 14.04.2022 at about 11.00 am, the petitioner along with co-accused entered in her land, cut the wheat, which was worth Rs.50,000/- and took away the same with him in a tractor. 3. At the very outset, it has been argued by the learned counsel for the petitioner that the petitioner has been falsely roped in this case against the actual facts and circumstances due to mala fides of the complainant in connivance with local police. Contends that the FIR was lodged after an inordinate delay of 16 days, which shows that the same was registered after Criminal Petition No. 1212-L/2022 -: 2 :- deliberation and consultation. Contends that the land, which is the root cause of the occurrence, does not belong to the complainant and the petitioner’s real aunt is in continuous possession of the property since long. Contends that in the crime report no specific role has been attributed to the petitioner and the same is general in nature, therefore, the case of the petitioner is one of further inquiry. Contends that the co-accused namely Sharif, who was ascribed the similar role, has been granted bail by the court of competent jurisdiction, therefore, following the rule of consistency the petitioner also deserves the same treatment to be meted out. Lastly contends that learned High Court while declining bail to the petitioner has not followed the guidelines enunciated by this Court, therefore, the same may be set at naught. 4. None has entered appearance on behalf of the State and the complainant despite of the fact that notice was dully issued to them by this Court vide order dated 03.02.2023. Therefore, we are left with no option except to hear this case on merits. 5. We have heard learned counsel for the petitioner at some length and have perused the available record with his able assistance. As per the contents of the crime report, the allegation against the petitioner is that he cut the standing crop of wheat from the land of the complainant; took away the same with him and caused her a loss of Rs.50,000/-. However, it is the stance of the petitioner that the complainant is not in possession of the land in question and it is the paternal aunt of the petitioner, who is in possession of the land and they have the requisite title documents with them. It seems, the primary dispute between the parties is with regard to the ownership/possession of the land. 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 16 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 three co-accused. We have been informed that two co-accused of the petitioner have been declared innocent during investigation. The other co-accused Sharif, who was ascribed the similar Criminal Petition No. 1212-L/2022 -: 3 :- role, 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). Even otherwise, all the four accused have been ascribed the role of jointly causing a loss of Rs.50,000/- 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. It is now established that while granting pre-arrest bail, the merits of the case can be touched upon by the Court. Reliance is placed on Miran Bux Vs. The State (PLD 1989 SC 347), Sajid Hussain @ Joji Vs. The State (PLD 2021 SC 898), Javed Iqbal Vs. The State (PLD 2022 SCMR 1424) & Muhammad Ijaz Vs. The State (2022 SCMR 1271). Taking into consideration all the facts and circumstances stated above, we are of the view that the case of the petitioner squarely falls within the ambit of Section 497(2) Cr.P.C. entitling for further inquiry into his guilt. 6. For what has been discussed above, we convert this petition into appeal, allow it, set aside the impugned order dated 21.09.2022 and confirm the ad interim pre-arrest bail granted to the petitioner vide this Court’s order dated 03.02.2023. The above are the detailed reasons of our short order of even date. JUDGE JUDGE Islamabad, the 1st of March, 2023 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Umar Ata Bandial Mr. Justice Syed Mansoor Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.1225 of 2021 (Against the order dated 14.10.2021 passed by the Lahore High Court Lahore in Crl. Misc. No. 51549-B/2021) Kashif alias Wajid alias Waju …..Petitioner(s) Versus The State & another …Respondent(s) For the Petitioner(s): Mr. Aurangzeb Maral, ASC For the State: Ch. Muhammad Sarwar Sidhu, Addl. P.G. Punjab along with Ghulam Muhammadm DSP, M. Irfan, SI and Nadeem, SHO For the Complainant: In person. Date of Hearing 27.01.2022. ORDER Qazi Muhammad Amin Ahmed, J.- Mohsin Ali Shah and Aftab son of Ghulam Rasool were surprised by two unknown assassins at their Dera, 8:00 p.m. on 31.8.2015, located within the precincts of Police Station Ferozwala District Gujranwala; incident was reported by Ghazanfar Ali Gillani, a nephew of Mohsin Ali Shah who gave assailants’ description, without citing motive for the crime. Mohsin Ali Shah deceased was survived by his daughters; of them, Sidra Batool came forward to record a supplementary statement on 7.12.2015 wherein she nominated the petitioner and Muhammad Farooq as suspects for the crime; she claimed to have herself witnessed the occurrence. Alleging complainant’s collaboration with Iqbal Butter co-accused, since acquitted, who according to her, had engaged the accused, hired assassins, to murder the deceased in the backdrop of election rivalry. Criminal Petition No.1225 of 2021 Pursuant to supplementary statement dated 7.12.2015, the police proceeded to arrest the petitioner and effected some recoveries on his disclosure; it also arrayed Iqbal Butter as architect behind the crime, however, it is admitted at the bar that he has been acquitted from the charge. Blamed as hired assassins, albeit with no past reflecting upon their alleged status, statedly employed with afore-named Iqbal Butter as his security guards, the Investigating Officer recovered their uniforms in a bid to connect them with the crime. 2. Heard. Record perused. 3. Prosecution case initially set up in the crime report by Ghazanfar Ali Gillani, no other than deceased’s nephew, is diametrically different from the version advanced by Sidra Batool PW, a real daughter undoubtedly most devastated by the occurrence, nonetheless, her plea that she being a Parda Nashin lady unsuspectingly stayed away from the investigative process as well as evidentiary value of her supplementary statement to take the petitioner on board in wake thereof are the issues that squarely bring petitioner’s case, for the present, within the purview of subsection 2 of section 497 of the Code of Criminal Procedure, 1898 and, thus, would be best settled after recording of evidence during the trial, already in progress, in view whereof, it would be unconscionable to keep the petitioner in custody, particularly when it is not serving any useful purpose, relative to investigation. Petition is converted into appeal and allowed; the appellant/petitioner shall be released on bail upon furnishing of 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 27th January, 2022 Azma/-

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.1228/2020 (Against the order dated 01.10.2020 passed by Peshawar High Court, Bannu Bench in BCA No.45-B/2020) Sharif Khan : … Petitioner(s) Versus The State and another : … Respondent(s) For the Petitioner(s) : Mr. Sher Afzal Khan Marwat ASC Mr. Mehmood A. Sheikh AOR For the (State) : Raja Muhammad Rizwan Satti, State counsel for KPK Date of Hearing : 26.11.2020 …. ORDER SAYYED MAZAHAR ALI AKBAR NAQVI, J: - The petitioner has invoked the jurisdiction of this Court under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 against the order dated 01.10.2020 passed by the learned single bench of Peshawar High Court, Bannu Bench in BCA No.45-B/2020 with a prayer to grant post arrest bail to the petitioner in the interest of safe administration of criminal justice. 2. As per allegation contained in the crime report bearing No.46/2020 dated 17.02.2020 offence under section 302/34 PPC registered with Police Station Tajori, District Lakki Marwat. It is mentioned that he alongwith two others while armed with Kalashnikov reached to the lands belonging to the complainant at 16:45 PM, in the meantime they all resorted to indiscriminate firing with their respective weapons. The complainant sustained injuries and fell down. All accused after Criminal Petition No.1228/2020 Sharif Khan Vs, The State etc 2 commission of offence decamped from the place of occurrence. Motive behind the occurrence is previous dispute over landed property. The petitioner applied for post arrest bail before the learned trial court which was allowed vide order dated 27.07.2020. The complainant being aggrieved by the order of learned trial court filed a petition BCA No.45- B/2020 for cancellation of bail before Peshawar High Court, Bannu Bench. The learned High Court adjudicated the matter and after hearing both the parties, accepted the application and recalled the bail granting order extended to the petitioner vide order dated 01.10.2020 hence, the instant petition. 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. Further contends that the petitioner has no nexus with the crime alleged against him. Contends that the petitioner is an old man, aged 60/61 years and is also chronic cardiac patient. Contends that the petitioner joined investigation carried out by the local police where he pleaded his alibi. Contends that after a thorough probe, the plea extended by the petitioner was accepted and as such, the petitioner was declared innocent by the local police. Contends that nothing has been recovered from the petitioner. Contends that consideration for grant of post arrest bail and cancelation whereof are entirely on different footing. Contends that all those consideration were not taken into account by the learned High Court while recalling the order passed by the learned trial court. Lastly contends that the name of the petitioner was placed in column No.02 of the report u/s 173 Cr.PC hence he is entitled for the concession of bail on this score alone. 4. On the other hand, the learned counsel for the complainant argued that the petitioner is nominated in the crime report. The offence Criminal Petition No.1228/2020 Sharif Khan Vs, The State etc 3 charged against the petitioner entails capital punishment. Contends that the ipse dixit of the police is of no avail to the petitioner at this stage. Learned High Court has recalled the order on strong foundation and any interference by this Court would prejudice the case of the prosecution. 5. We have heard the learned counsel for the parties and gone through the record. Undeniably, the petitioner is nominated in the crime report as one of the assailant besides two others who resorted to indiscriminate firing. In response to the accusation, the petitioner surrendered himself before the local police and pleaded his innocence while raising plea of alibi. The Investigating Officer in order to verify the plea raised by the petitioner, investigated the matter at length and finally came to the conclusion that the petitioner was not present at the spot at the time of occurrence. As a consequent, he was declared innocent while placing his name in the column No.02 of the report u/s 173 Cr.PC otherwise the deceased sustained two injuries whereas while lodging crime report, the complainant has assigned allegation against three persons who indulged into indiscriminate firing with their respective weapons. Contradiction regarding the number of assailant and injuries sustained by the deceased was also considered by the Investigating Officer. It is also an admitted fact that the allegation against all of the accused persons was generalized in nature and there was no specification of injury attributed to anyone of the assailants. These aspects were taken into consideration by the learned trial court while granting post arrest bail to the petitioner which order of the learned trial court was challenged and ultimately it was recalled by the learned High Court. The crux of the arguments advanced by the defence counsel relates to that the learned High Court has altogether ignored principles enunciated governing for grant of bail and cancellation whereof Criminal Petition No.1228/2020 Sharif Khan Vs, The State etc 4 as enunciated by the superior courts from time to time. The rationale behind said principle can be gauged from a salutary judgment titled as Tariq Bashir and 05 others Versus The State (PLD 1995 SC 34). Para No.09 of the aforesaid judgment is reproduced as under: - “9. The consideration for the grant of bail and for cancellation of the same are altogether different. Once the bail is granted by a Court of competent jurisdiction, then strong and exceptional grounds would be required for cancellation thereof. To deprive a person on post arrest bail of the liberty is a most serious step to be taken. There is no legal compulsion to cancel the bail of the accused who allegedly has committed crime punishable with death, imprisonment for life or imprisonment for ten years”. In a recent reported judgment titled as “Sami Ullah and another Vs, Laiq Zada and other” (2020 SCMR 1115) handed down by this Court has reiterated the same principles which are reproduced as under: - i) If the bail granting order is patently illegal, erroneous, factually incorrect and has resulted into miscarriage of justice. ii) That the accused has misused the concession of bail in any manner. iii) That accused has tried to hamper prosecution evidence by persuading/pressurizing prosecution witnesses. iv) That there is likelihood of absconsion of the accused beyond the jurisdiction of court. v) That the accused has attempted to interfere with the smooth course of investigation. vi) That accused misused his liberty while indulging into similar offence. vii) That some fresh facts and material has been collected during the course of investigation which tends to establish guilt of the accused. Criminal Petition No.1228/2020 Sharif Khan Vs, The State etc 5 Ordinarily the superior courts are hesitant to interfere into the order extending concession of bail; rather they have shown reluctance to intervene in such like matters. This very aspect was dealt by this Court in a judgment reported as Shahid Arshad Versus Muhammad Naqi Butt and 02 others (1976 SCMR 360). Though this Court was not pleased with the order passed by the learned single bench of the High Court however they refrain to exercise the power on this very ground which is reproduced as under: - “In these circumstances although we are not happy about the order passed by the learned Single Judge of the High Court, we do not think it advisable to interfere with his order at this stage. If at any time any one of the said two respondents misuses the privilege of bail it will be open to the petitioner to approach the High Court for cancellation of bail.” The intent behind is that once concession of bail is granted by a court of competent jurisdiction then very strong and exceptional grounds would be required to hamper with the concession extended to an accused who is otherwise clothed with free life, as a consequent of concession and if any view taken by the court it would be synonymous to curtailing the liberty of said accused prior to completion of trial, which otherwise is a precious right guaranteed under the Constitution of the country. 6. In view the facts and circumstances narrated above and law on the subject, we are of the considered view that learned Single Bench has erred in appreciation of law on the subject while recalling the bail granting order passed by the learned trial court hence, the same is set at naught, as a consequent we are of the opinion that the case of the petitioner is of further inquiry fully covered under section 497(2) Cr.PC entitling for concession of bail. As a consequence, leave to appeal is Criminal Petition No.1228/2020 Sharif Khan Vs, The State etc 6 granted in the instant petition while converting it into appeal and the same is allowed. The petitioner shall be released on bail subject to his furnishing bail bonds in the sum of Rs.1,00,000/- with two surety in the like amount to the satisfaction of the learned trial court/Duty Judge. JUDGE JUDGE JUDGE Islamabad/26.11.2020 Approved for reporting/B-III Syed Rashid Maqsood

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: MR. JUSTICE DOST MUHAMMAD KHAN MR. JUSTICE QAZI FAEZ ISA MR. JUSTICE FAISAL ARAB CRIMINAL PETITION NO. 1232 OF 2016 (Against the order dated 27.10.2016 of the Lahore High Court, Lahore passed in Criminal Misc. No.7923-B/2016). Adnan Prince. … Petitioner(s) VERSUS The State through P.G., Punjab and another. … Respondent(s) For the Petitioner(s): Mrs. Asma Jahangir, Sr. ASC. Ch. Akhtar Ali, AOR. For Respondent No. 1/State: Ch. Zubair Ahmed Farooq, Addl.PG., Punjab. Muhammad Akram, SI/IO. For Respondent No. 2: Mr. Ghulam Mustafa Ch., ASC. Mr. Ghulam Hussain, AOR (absent). Date of Hearing: 01.02.2017. JUDGMENT Dost Muhammad Khan, J:- Issue notice to the respondents. During the course of hearing, learned Additional Prosecutor General, Punjab accepts notice, however, he stated that he may be given time to go through the order sheets of the learned trial Court and this case may be taken up after the break time, i.e. 11:30 am. 2. The case was taken up for hearing after the break. Petitioner is seeking leave to appeal against the judgment/order dated 27.10.2016 of the learned single Judge of the Lahore High Court, Lahore, whereby the bail petition of the petitioner was dismissed despite of statutory delay in Crl.P.No.1232/2016 2 the conclusion of the trial, which according to the record, is almost three years and three months, if counted from the date of the arrest of the accused/petitioner. 3. The earlier bail petition of the petitioner was dismissed on merits upto this Court, however, after the expiry of statutory period, provided in the proviso to Section 497 Cr.P.C. he repeated his bail petition but could not succeed. He is facing trial in case FIR No. 675 dated 09.10.2013 for crimes under section 295-A, B & C of the PPC registered at Police Station Township, District Lahore. 4. We have gone through the brief summary/list of the order sheets of the learned trial Court where delay has mainly been caused by the prosecution or the Court itself, seized of the trial and even if the adjournments sought by the accused/petitioner due to absence of his counsel or his non-availability is excluded, even then he would be entitled to the concession of bail because in that case too his total detention during the trial becomes more than two years. 5. The learned Additional Prosecutor General, Punjab assisted by the counsel for the informant/complainant contended that this Court has already dismissed a bail petition by holding that once adjournments are sought by the accused/petitioner then it is not a matter of mathematical calculation and that could be a ground to refuse bail to accused person. 6. The judgment on which reliance was placed was delivered at the time when relevant provisions of Criminal Procedure Code were not amended and Article 10-A was not part of the Constitution of Pakistan which require that each and every accused must be provided opportunity of fair trial and also the State has been put under obligation that each Crl.P.No.1232/2016 3 and every accused must be provided opportunity of fair trial, therefore, in our considered view the said ratio laid down by this Court would not be strictly attracted. 7. It has been consistently held by this Court that if a case on such statutory delay in the conclusion of trial is made out then, ordinarily, bail should not be refused on hyper technical ground. 8. The Primary object behind this view is that in case any accused person under detention is acquitted at the end of the trial then, in no manner the wrong, caused to him due to long incarceration in prison pending trial, he cannot be compensated in any manner while on the other hand, in case, if he is convicted then, he has to be rearrested and put behind the bars to undergo his sentence and in that case no prejudice would be caused to the prosecution/complainant. 9. Of course, it is too late but we are constrained to give a wake-up call to the prosecution/State that in Criminal cases involving capital punishment, the Investigators and Prosecutors, consisting of large fleets who are being sustained and maintained at the cost of tax payers money of the poor people, shall diligently perform their statutory duties/obligations otherwise, they will be guilty of violating the mandatory statutory provisions of the Cr.PC., the Constitution and Law relating to the prosecution branch. It is a universal principle of law that to have a speedy trial is the right of every accused person, therefore, un- necessary delay in trial of such cases would amount to denial of justice. Many years back, the State/Government with the object to put the criminal justice system into the correct channels, bifurcated the police force to preventive/detective, investigation and prosecution wings. The establishment of the same cost dearly the public exchequer because Crl.P.No.1232/2016 4 extraordinary budget was allocated for this purpose by all the Governments of the Provinces including Federal Government, however, such costly exercise could not improve the system because supervising officers of these three wings of the police are taking least interest to streamline the working of each wing, in an efficient and effective manner and to comply with the mandatory provisions of law. Thus even today charge sheets and submission of the challans before the competent courts in criminal cases are delayed beyond the mandatory statutory period for no reason much less plausible. Even interim challans as required under the law are not submitted within the statutory period. This conduct and attitude as well as performance of investigating, prosecution and detective agencies are absolutely un-acceptable and un- condonable because on the one hand, the law is disregarded while on the other hand, with the passage of time and long delay in the submission of challans, trial in each case is delayed and some of the witnesses including star witness either vanish being killed by the opponents, meet natural death or abandon their permanent abode/place of official duties due to transfer to another place or district making it a cumbersome job for the trial court to procure their attendance. This is one of the major contributory factor in the backlog crisis/pendency of criminal cases. Such type of un-condonable delay in many cases becomes a cause of frustration both for the accused, the aggrieved complainant party and in some cases, the aggrieved party ordinarily takes the law into hands indulging in revengeful acts. 10. This has certainly resulted in unrest and element of intolerance in the society which ultimately would have negative impacts on the performance of the government as a whole. Crl.P.No.1232/2016 5 11. Accordingly, copy of this judgment be sent to the Attorney General of Pakistan, all the Prosecutor Generals of the Provinces and Islamabad Capital Territory-ICT, Advocate Generals of the four Provinces, DIGs/Addl. IGPs who are the Incharges of the Investigation Wings, Ministry of Interior, Govt. of Pakistan and all the Chief Secretaries of the four Provinces, all the Home Secretaries of the provinces, IGP-Islamabad, Chief Commissioner-ICT with the direction to hold deliberations and consultations and after giving deep thought to the subject matter, they should collectively and individually devise a proper strategy/policy to arrest this grave menace of delay and causes thereof and to immediately redress the same within the possible minimum time so that compliance is made with the mandatory provision of law and the relevant article of the Constitution in its true letter and spirit and to make accountable each and every officer who is found responsible for such delay and to show a visible and efficient performance in all three fields, failing which the public would be justified to protest that their money is going waste without any fruitful result even after introduction of the new system. 12. Copy of the actions taken alongwith minutes of each and every action taken, in view of above guidelines be submitted periodically to the Registrar of this Court with detailed information about the cases pending investigation before the Investigating Agency, the Prosecution Branch and to explain the delay in the submission of challans to the trial court. 13. As discussed in the earlier part of this judgment, we are of the view that the long delay caused in the conclusion of the trial in this case where- after three years and three months long period only Crl.P.No.1232/2016 6 examination-in-chief of a single witness has been recorded is a matter of concern for the Court which shall not go un-noticed. 14. The inordinate and shocking delay in the conclusion of trial in this case has made out a case for grant of bail which cannot be refused to the petitioner on any ground much less justifiable. Accordingly, this petition is converted into appeal and is allowed, the appellant-Adnan Prince son of Parvaiz Shahid is granted bail subject to his furnishing bail bonds in the sum of Rs.300,000/- (three lac) with two reliable sureties in the like amount to the satisfaction of the trial court. Judge Judge Judge Bench-IV Islamabad: 01.02.2017 (M. Tauseef) ‘Approved for Reporting’

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.1245 of 2020 (Against the order dated 03.11.2020 passed by the Lahore High Court Multan Bench Multan in Crl. Misc. No.6529-B/2020) Muhammad Zahid Aslam & another …Petitioner(s) Versus The State & another …Respondent(s) For the Petitioner(s): Mr. James Joseph, ASC For the State: Mirza Abid Majeed, DPG Punjab with Muhammad Akram, SP Investigation, Pervaiz Ahmed, DSP/I.O and Tahir Inspector, Rajanpur. For the Complainant: Mr. Shah Khawar, ASC Date of hearing: 10.02.2021. ORDER Qazi Muhammad Amin Ahmed, J.- In a series of events that occurred between January 2015 to September 2019, Syed Ahsan Ali Raza Shamsi alleges to have been deprived of a colossal amount of rupees 20 million, grabbed by Muhammad Zahid alias Sain Sarkar, petitioner, transacted through banking channel as well as vehicles valuing rupees 40 million; he also blamed Ali Raza Mashahadi alias Madhu Lal to have received a sum of Rs.300,000/-, that too, through a documented transaction. According to the complainant, he met Muhammad Zahid alias Sain Sarkar, a supposititious saint, in January, 2015 who introduced him to Ali Raza Mashahadi alias Madhu Lal; they lured him into their spell to receive the amounts as well as the vehicles; they also threatened to eliminate his parents through sorcery, finally prompting him to report the fraud to the police on 7.1.2020. The Criminal Petition No. 1245 of 2020 2 petitioners denied accusations point-blank, however, were declined judicial protection both by the Court of Session as well as the High Court. Given complainant’s status as a lawyer’s son, who boosted his own law practice with a substantial holding and in view of peculiarity of allegations, paralleled by a story supported by bank transactions, District Police Officer Rajanpur was directed to submit a comprehensive report, an exercise, ordinarily avoided by this Court in such proceedings, nonetheless, found by us of little assistance. 2. Heard. Record perused. 3. It goes without saying that grant of pre-arrest bail in a cognizable criminal case is an extraordinary remedy, cautiously granted to protect dignity and honour of a citizen, manifestly found being harassed or hounded through process of law actuated by motives, oblique and sinister, while taking into account the possible set back, likely to be endured by the prosecution during investigative process. It is in this narrow spectrum that the plea raised by the petitioners during investigation as well as before the Court, merits consideration. An agreement to sell, executed between the complainant and a minor son of Muhammad Zahid alias Sain Sarkar, petitioner, dated 25.09.2018 is on the record, however, conspicuously sans reference in the crime report lodged in as late as January 2020. A good number of receipts reflecting multiple transactions between the parties regarding a fish farm await attention by the Investigating Officer; similarly a suit by the complainant against Muhammad Zahid alias Sain Sarkar, with a claim of Rs.97,26,000/- instituted on 12.12.2019 clamours for explanation. Through banking transactions dated 21.05.2018 01.2.2019, 06.02.2019 and 28.02.2019, Muhammad Zahid alias Sain Sarkar channeled amounts to the tune of Rs.10,00,000/-, Rs.1,50,000/-, Rs.500,000/- and Rs.6,50,000 respectively in complainant’s bank account, unmistakably suggest a lot more than what meets the eye, without transgressing the barriers of tentative assessment. Argument that a civil dispute, admittedly earlier settled by a local notable, is being converted into criminal prosecution to cast its rigors on the petitioners and as such mala fide is lurking behind the intended arrest is not beside the mark. Liberal application of penal provisions, scheduled as non-bailable, in the absence of contents, to prima facie attract their mischief, lends credence to an intriguing Criminal Petition No. 1245 of 2020 3 collaboration between the complainant and the police; a case for judicial protection stands made out. Petitions are converted into appeal and allowed; ad-interim bail already granted to the petitioners/appellants is confirmed on their furnishing fresh bonds in the sum of rupees one million with two sureties each in the like amount to the satisfaction of the learned trial Court. Judge Judge Islamabad, the 10th February, 2021 Azmat/-

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE MUNIB AKHTAR MR. JUSTICE SAYYED MAZAHAR ALl AKBAR NAUVI (DJ) AFt CRIMINAL PETITION NO. 124 OF 2022 (On appeal against the order dated 01.02.2022 passed by the Lahore High Court, Lahore in CH. Misc, No. 21507-612021) Muhammad Amjad Shahzad Petitioner VERSUS Muhammad Akhtar Shahzad and another Respondents For the Petitioner: Sardar Muhammad Latif Khan Khosa 1 Sr. ASC Ch. Akhtar Ali, AOR For the Respondent: Mr. Shoukat Aziz Siddiqui, ASC Syed Rifaqat Hussain Shah, AOR a/w respondent For the State: Mr. Ahmed Raza Gillani, Addl. P.G. Mr. Akhtar Nawaz, ASP Wazirabad Mr. Tariq Mehmood, S.I. Date of Hearing: 30.032022 ORDER SAYYED MAZAHAR ALl 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 Muhammad Akhtar Shahzad by the learned Lahore High Court, Lahore vide order dated 01.02.2022 in case registered vide FIR No. 224 dated 0705.2019 under Sections 302/109 PPC at Police Station Saddar Wazirabad, District Gujranwala, in the interest of safe administration of criminal justice. S CHrninal Petition No. 12412022 2 2. Briefly stated the allegation against the respondent is that he committed murder of his real father and brother by firing upon them with pistol 9 mm. The motive behind the occurrence as mentioned in the crime report is that the respondent had exchange of hot words with the father as he was demanding share of inheritance from the property of the father in his lifetime, which was resisted by the deceased father. 3. At the very outset, learned counsel for the petitioner/complainant argued that the respondent is specifically nominated in the crime report with an allegation of causing firearm injuries on the person of both the deceased. Contends that there is no question of mis-identity as the respondent is real brother of the complainant and the PWs. Contends that the allegation of causing firearm injuries is fully established from the medical record, which is in line with the prosecution version. Contends that the respondent remained absconder for a period of one year, which prima fade shows his involvement in the aforesaid crime. Contends that the respondent is involved in series of cases of similar nature and as such he can be dubbed as hardened criminal. Contends that the weapon of offence has already been recovered from the respondent which matched with the empties recovered from the scene of occurrence one year earlier. Contends that the order of the learned High Court is not sustainable in the eyes of law as the grounds taken for the grant of bail relates to statement of one of the PWs under Section 161 Cr.P.0 when she has taken a somersault after considerable time and as such the same has no legal value. Lastly it is contended that the impugned order is patently illegal, perverse and fanciful, as such the same is not sustainable in law by any stretch of imagination. 4. Learned Law Officer concurred the arguments advanced by the learned counsel for the complainant in letter and spirit. S. On the other hand, learned counsel for the respondent has made an attempt to defend the impugned order on the ground that the nsiderations for the grant of bail and cancellation whereof are entirely Cdminnl Petition No, 22412022 3 on different footing. Contends that the FIR was lodged with inordinate delay of more than 9 hours for which no plausible explanation has been given. Contends that as new avenues in the prosecution version have been opened, therefore, the respondent has made out a case for further inquiry, consequently the bail granted to him cannot be recalled on the basis of perversity. Contends that when one of the witness has made two divergent statements, it becomes the case of two versions and as such the case of the respondent is covered by Section 497(2) Cr.P.C. Contends that the respondent had made an attempt to advance his version ) which is contrary to the prosecution case, however, the same has not been accredited by the Investigating Officer during course of investigation. However, he states that the private complaint has been filed by the respondent) which is at the stage of preliminary proceedings. Contends that this petition for cancellation of bail is not sustainable in the eyes of law, hence, is liable to be dismissed. 6. We have heard learned counsel for the parties at some length and have perused the available record. The instant case has a chequered history, which is worth mentioning. There is no denial to this fact that the respondent is nominated in the crime report with specific accusation of causing firearm injuries on the person of his real father and brother, resulting into their brutal murder. The matter was reported to the police with inordinate delay of 9 hours but the delay in this case has been fully explained. It is mentioned without any doubt that after sustaining injuries, the brother of the respondent was taken to nearby Tehsil Headquarter Hospital, Wazirabad, but due to his precarious condition, he was shifted to District Headquarter Hospital, Gujranwala, therefore, the time consumed in transportation cannot be used against the complainant and as such the element of delay in lodging the FIR is fully satisfied, as according to the record the deceased has died in DHQ Hospital, Gujranwala. The injuries ascribed to the respondent are fully supported by medical evidence. Apart from this, it is worth mentioning that the respondent after commission of the offence absconded himself and thereafter he filed three successive Cnmthal PeEl ion No, 12412022 4 applications for pre-arrest bail before the High Court after its dismissal from the court of first instance. The first bail petition bearing Cr1. Misc. No. 41490-13/2019 was dismissed due to non-prosecution on 1410,2019. Another application bearing Cr1. Misc. No. 61063-13/2019 was dismissed for non-prosecution vide order dated 25.10.2019. Lastly, the third one bearing Cr1. Misc. No. 64967-13/2019 was also dismissed for non-prosecution on 01.11.2019. Finally, the respondent was taken into custody on 04.05.2020 after dismissal of third application and thereafter, he was granted post- arrest bail vide impugned order dated 01.02.2022. It is apathy to point out that the main ground on which the learned single bench granted post- arrest bail to the respondent is that one of the witness has taken a somersault contrary to the earlier statement made under Section 161 Cr.P.C. and filed a private complaint wherein she has advanced a story altogether different to the story advanced by the prosecution. This solitary ground, if taken in favour of the respondent, it will open new avenues, contrary to the safe administration of criminal justice whereby at any stage if one of the witness makes a divergent statement to the earlier one bringing the case within the ambit of Section 497(2) Cr.P.C. then it will transform into mockery in the eyes of law. We have noticed that it has become customary in number of cases that each one of the witness after settling his score with the accused party comes forward to file a complaint contrary to the prosecution case with an intent just to frustrate the case of the prosecution. This practice cannot be ordained in any manner. The prosecution witness at any stage may repudiate from the earlier statement and can make a divergent statement before the court during the course of trial enabling the prosecution an opportunity to get him declared hostile and cross-examine so that truth can be brought on the record. Probably same is the situation in this case where one of the sister of the respondent had made statement under Section 161 Cr.P.0 in line with the prosecution version at the time of lodging of crime report but subsequently after lapse of more than one year, she had taken a different stance while making a statement, which is contrary to the prosecution version with an intent to benefit the respondent. As the respondent is -- II -- Cthnina! Petthon No. 32412022 5 involved in number of cases of similar nature and having clandestine background, the possibility of fear and undue pressure faced by the witness cannot be ruled out, as argued by the learned counsel for the petitioner/complainant. As far as the argument of learned counsel for the respondent that the considerations for the grant of post-arrest bail and cancellation whereof are entirely on different footing, it is worth mentioning that it is a case where the learned High Court while granting bail has misinterpreted the considerations in toto and has exercised discretion arbitrarily, fancifully and in complete disregard to the principles enunciated by this Court, which cannot be given assent by this Court. Apart from this, we have noticed that the alleged recovered pistol 9mm from the respondent on 08.05.2020 was sent to the office of the Forensic Science Agency and all the empties recovered from the place of occurrence were found to be fired from the same, a positive report has been issued by the said Agency. We have specifically inquired from the learned counsel for the respondent about the stage of the private complaint lodged by the respondent to which he informed that the private complaint is still at the preliminary stage and even no notice has been issued to the respondents mentioned over there, therefore, the same is of no help to the respondent. We have been informed that several FIRs of similar nature have been registered against the respondent. Although learned counsel for the respondent vehemently stated that in all of the cases, the respondent has been acquitted of the charge but no document in this regard could be placed on record, however, it is also controverted by the Investigating Officer present in the court. 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, fanciful and without any legal justification. We are under bounden duty to attend to the facts and circumstances of the Us brought before us and to evaluate the same in such a manner so that no injustice is caused to either of the party. In the instant case, the learned High Court has not given any sticiable reasoning to bring the case of the respondent within the ambit Cn-.l Petition Ho, 12412022 A of Section 497(2) Cr.P.0 calling for further probe into his guilt. 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 illegal, perverse, fanciful, arbitrary. 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 01.02.2022. The above are the detailed reasons of our short order of even date. Islamabad, the 30th of March, 2022 Approved For Reporting I[l.iiiitii,l

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE SARDAR TARIQ MASOOD MR. JUSTICE AMIN-UD-DIN KHAN MR. JUSTICE MUHAMMAD ALI MAZHAR CRIMINAL PETITION NO.1251 OF 2022 (Against the order dated 29.08.2022 passed by Islamabad High Court, Islamabad in Crl. Misc. No.1013-B-2022) Javed Iqbal ...Petitioner Versus The State through D.A.G., Islamabad & another …Respondents For the petitioner : Mr. Adil Aziz Qazi, ASC. Sheikh Mehmood Ahmed, ASC. For the respondents : Raja Shafqat Abbasi, Deputy Attorney General Pakistan. Faisal, I.O FIA. (for the State) Date of Hearing: 01.11.2022 JUDGMENT SARDAR TARIQ MASOOD, J: Petitioner, Javed Iqbal was arrested in case FIR No.27/19 dated 19.09.2019 for the offences under sections 13/14 of the Prevention of Electronic Crimes Act, 2016 (PECA, 2016) read with sections 420, 468, 471 and 109 of the Pakistan Penal Code, 1860 (PPC) registered at Police Station F.I.A, Cyber Crime Reporting Centre, Islamabad. He approached the Special Court established under the PECA, 2016, for his release on bail but his application was dismissed vide order dated 07.07.2022 by the Judge, Prevention of Electronic Crime Court, Islamabad. He approached the High Court through Criminal Misc. No.1013-B of 2022 for grant of post-arrest bail, which vide impugned order dated 29.08.2022 was allowed, subject to his furnishing of bail bonds in the sum of Rs.500,000/- with one surety in the like amount to the satisfaction of the trial Court. The petitioner was, however, further directed to deposit Rs.3.5 million in the trial Court. Although the petitioner has been granted bail but due to the condition of depositing of Rs.3.5 million in the Crl.P.1251/2022 2 trial Court, he is still lying in the jail; hence, this petition for leave to appeal. 2. Learned counsel for the petitioner contends that the petitioner is aggrieved of the impugned order for the reason that despite grant of bail by the High Court the petitioner is still lying in the jail because while granting bail to him, the High Court not only asked him to furnish bail bonds in the sum of Rs.500,000/- with one surety but also directed him to deposit Rs.3.5 million in the trial Court, which according to learned counsel is not permissible under the law. Further contends that the High Court assumed that the amount of Rs.3.5 million is admitted by the petitioner but the fact of the matter is that the said amount is denied by the petitioner, and that the High Court has itself observed in the impugned order that all other questions could only be resolved during the course of trial but illegally imposed the condition of deposit of Rs.3.5 million. In this regard the learned counsel relied upon various judgments of this Court. 3. On the other hand, learned DAG contends that although this is a legal position that no such condition can be imposed by the Court while granting bail but according to him, the petitioner has admitted his liability, therefore, such a direction was not illegal. 4. Heard the learned counsel for the petitioner, learned Deputy Attorney General and perused the record with their able assistance. The only question for consideration before us is as to whether the Court while granting bail to an accused can impose any other condition or not. In case the Court considers it expedient to release an accused on bail during pendency of trial, it can certainly require him to execute a bond, either personally or through sureties, setting an amount therein having regard to the facts and circumstances of each case. In order to ensure future attendance, the accused is required to submit bail bond under section 499 of the Code of Criminal Procedure, 1898 (the Code) and while asking the accused to submit sureties, the Court is not required to impose any condition upon the accused for further depositing of money. In case of default or non-appearance in Court, the Court may proceed to forfeit such bail bond under section 514 of the Code. When the Court comes to a conclusion that an accused is entitled to be released on bail then of course such bail granting order cannot be subjected to riders and conditions. While admitting to an accused person on bail, actually he is released from the custody of the authorized officer/judicial lockup of the Court and his custody is entrusted to a person known as his surety, who is bound to produce him in Court at a specific Crl.P.1251/2022 3 time and place to answer the charge against him. Even no condition can be imposed upon an accused person in order to desist him from the repetition of the offence. This Court, since the year 1963 till date, has dis-approved the imposition of any condition while granting bail to an accused person as section 499 of the Code, under which bail bonds are submitted in the Court, is very much clear that bail bonds are sufficient for release of a person/accused. In this regard reliance may be placed on the case of Mian Mahmud Ali Qasuri and others v. The State (PLD 1963 SC 478), wherein the question for consideration before this Court was whether a Criminal Court while granting bail could incorporation in the bail bond a condition other than any of the conditions mentioned in section 499 of the Code. This Court after relying upon “Concise Law Dictionary” observed that an accused person is said, at common law, to be admitted to bail, when he is released from the custody of the officers of the Court and is entrusted to the custody of persons known as his sureties, who are bound to produce him to answer, at a specified time and place, the charge against him and who in default of so doing are liable to forfeit such sum as is specified when bail is granted. The Court also considered the provisions of Sections 497, 499 and 500 of the Code and observed that under Section 497 ibid, an accused of a non- bailable offence can also be released on bail or on execution of a bond for his presence. As per Section 500 ibid, as soon as the bond has been executed, the accused shall be released. It was finally held that it seems fairly clear on the language employed by Section 499 ibid that such a condition cannot be incorporated in a bail or surety bond itself. In the case of Faizur Rahman Sarkar v. The State and 2 others (1970 SCMR 175), it was reiterated that a person admitted to bail cannot be subjected to the condition that he shall desist from the repetition of the offence with which he is charged. It was further held that when bail was granted to the accused not as a mean of enforcing recovery of fine, but on its own merits, then that order could not be made dependent on the payment of fine. In the case of Mst. Afshan Bibi v. The State (1998 SCMR 6), where the State counsel could not point out any case-law to show that the High Court is authorized to impose condition on the release of the accused on bail, this Court observed that it is well-settled that the accused person can be released on bail on the strength of surety to be provided by him. In the case of Saeed Zaman v. The State and another (2020 SCMR 1855) it was held that law on the grant or refusal of bail in criminal cases is well settled, in that, the regime is an interlocutory arrangement to ensure physical presence of an accused so as to confront Crl.P.1251/2022 4 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 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. In case the Court consider it expedient to release an accused on bail pending conclusion of 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. In the case of Jehanzeb Khan v. The State through A.G. Khyber Pakhtunkhwa and others (2020 SCMR 1268) it was held that the Court may decline the request for bail, considering the facts and circumstances of each case, even in cases falling outside the ambit of prohibition, however, the corporal coercion cannot 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. In the case of Maqbool Ahmed Mahessar and others v. National Accountability Bureau (NAB) through Chairman and others (2021 SCMR 1166) where the accused were admitted to pre-arrest bails in different NAB references with a direction to furnish deposits equivalent to the amounts allegedly embezzled by them, this Court held that such a direction for release of an accused on bail has been held by this Court as ultra vires in many judgments. An accused seeking bail desires transfer of his custody from Superintendent of the Jail, where he is confined, to his surety who undertakes his production as and when required by the Court and for that he has to make out a case in accordance with the law applicable thereto; he cannot be allowed or required to barter his freedom. 5. The crux of the above case-law is that: (a) in terms of section 499 of the Code the Court cannot require an undertaking from an accused person before granting bail to desist from the repetition of the offence with which he is charged, as a condition precedent to the grant of bail; such a Crl.P.1251/2022 5 condition cannot be incorporated in a bail or surety bond itself; (b) when bail is granted to an accused not as a mean of enforcing recovery of fine, but on its own merits, the same could not be made dependent on the payment of fine; any such condition would amount to curtail his liberty, for which he otherwise is entitled; (c) grant of bail cannot be subjected to riders and conditions, if otherwise, a case stands made out; and (d) an accused seeking bail, after submitting bail bond through sureties, desire transfer of his custody to his sureties who undertake his production as and when required by the Court and for that he has to make out a case in accordance with the law applicable thereto; he cannot be allowed or required to barter his freedom, and imposing any condition other than submission of sureties would be against the dictum laid down by this Court. Thus, the contention of learned DAG and the approach of the learned High Court is not in accordance with the dictum laid down by this Court, referred above. 6. In view of the above, the High Court wrongly and without any legal backing had imposed the condition of depositing of Rs.3.5 million besides the surety bonds, thus, while converting this petition into an appeal, the same is allowed. Consequently, the condition imposed by the High Court of depositing of Rs.3.5 million in the trial Court is set-aside and the order of granting post-arrest bail to the appellant, subject to his furnishing bail bonds of Rs.500,000/- (Rupees five hundred thousand) with one surety is maintained. Islamabad, the 01.11.2022 M.Saeed/** APPROVED FOR REPORTING. JUDGE JUDGE JUDGE JUDGE Crl.P.1251/2022 6 APPROVED FOR REPORTING

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MAQBOOL BAQAR MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI MR. JUSTICE JAMAL KHAN MANDOKHAIL CRIMINAL PETITION NO. 1255 OF 2021 (On appeal against the order 22.10.2021 passed by the Lahore High Court, Lahore in Crl. Misc. No. 40770- B/2021) Muhammad Kashif Iqbal … Petitioner Versus The State and another …Respondent(s) For the Petitioner: Mian Ismat Ullah, ASC a/w petitioner For the State: Mirza Muhammad Usman, DPG Mr. Tausif, DSP Mr. Zubair, ASI For Respondent (2): Mr. Munawar Iqbal Duggal, ASC Date of Hearing: 12.01.2022 ORDER SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through the instant petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed the order dated 22.10.2021 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. 868 dated 26.05.2021 under Sections 420/468/471 PPC at Police Station Madina Town, District Faisalabad, in the interest of safe administration of criminal justice. 2. Briefly stated the prosecution story is that the complainant and the petitioner had a joint bank account. The allegation against the petitioner is that he dishonestly made forged signatures of the complainant on a cheque and issued the said cheque to his co-accused, which was presented to bank but it was declined due to insufficient funds and thus committed cheating and fraud. 3. At the very outset, it has been argued by learned counsel for the petitioner that the petitioner has been falsely roped in the Criminal Petition No. 1255/2021 -: 2 :- present case against the actual facts and circumstances due to mala fides of the complainant in connivance with local police. Contends that the petitioner neither handed over the disputed cheque to the co- accused nor he was a beneficiary of the same. Contends that it was the complainant who himself issued the cheque to the co-accused against some transactions as the cheque book was in his own custody. Contends that no forensic test has been conducted to ascertain the authenticity of disputed signatures of the complainant. Lastly contends that the co-accused of the petitioner has been granted post-arrest bail by the learned Magistrate, therefore, following the rule of consistency the petitioner also deserves to be granted the concession of bail. 4. On the other hand, learned Law Officer assisted by the learned counsel for the complainant contended that the petitioner is specifically nominated in the crime report with a specific role of committing fraud and cheating. They submitted that the extraordinary concession of pre-arrest bail is meant for innocent persons but as there are no such circumstances available in this case, therefore, the same relief may not be granted to the petitioner. 5. We have heard learned counsel for the parties at some length and have perused the evidence available on the record. As per the contents of the crime report, the petitioner and the complainant were maintaining a joint bank account. The allegation against the petitioner is that he made forged signatures of the complainant on a cheque and issued the said cheque to his co-accused. When the cheque was presented to the bank, it returned the same due to insufficient funds and mismatch of the signatures of the complainant. It is the case of the petitioner that the cheque book was in the custody of the complainant; ten cheques from the same cheque book have already been encashed at the behest of the complainant and the petitioner never issued the disputed cheque. On our specific query, we have been informed that no forensic test of the alleged forged signatures of the complainant has been conducted so far to ascertain as to whether the signatures are forged or the real one. The amount for which the cheque was given has not been mentioned in the crime report. It is an admitted fact that the co-accused of the petitioner has been granted post-arrest bail by the court of competent jurisdiction Criminal Petition No. 1255/2021 -: 3 :- 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 petitioner because of the reason that soon after his arrest he would become entitled for the concession of post- arrest bail on the plea of consistency. In the case reported as Muhammad Ramzan Vs. Zafarullah (1986 SCMR 1380), the respondent 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.” Keeping in view all the facts and circumstances, the case of the petitioner squarely falls within the purview of Section 497(2) Cr.P.C. entitling for further inquiry into his guilt. 6. For what has been discussed above, we convert this petition into appeal, allow it, set aside the impugned order dated 22.10.2021 passed by the learned High Court and confirm the ad- interim pre-arrest bail granted by this Court vide order dated 03.12.2021. JUDGE JUDGE JUDGE Islamabad, the 12th of January, 2022 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.126-P/2011 (Against the judgment dated 23.11.2011 of the Peshawar High Court Peshawar passed in Cr.A. No.571/2009) Abdul Latif …Petitioner(s) Versus Noor Zaman and another …Respondent(s) For the Petitioner(s): Mr. Suhail Akhtar, ASC For the Respondent(s): N.R. Date of hearing: 28.6.2021 ORDER Qazi Muhammad Amin Ahmed, J.- Falak Naz, 15, was shot dead at 10:45 a.m. on 28.7.2007 within the precincts of Police Station Dargai Malakand; the incident was reported by her cousin Muhammad Shakil; he blamed Noor Zaman respondent, an aspirant for her hand, to have committed the murder to avenge the refusal; he cited in the crime report one Zafar Ali as well as deceased’s aunt Pashmina as witnesses of the crime, swapped by her maternal uncle Yousaf Khan (PW-6) and mother Mst. Nasreen (PW-7) to drive home the charge in the absence of the complainant. The learned trial Judge while acquitting Muhammad Nawaz, co-accused, blamed for abetment, proceeded to convict the respondent under clause (b) of section 302 of the Pakistan Penal Code, 1860 and sentenced him to death vide judgment dated 19.11.2009, set aside by a learned Division Bench of Peshawar High Court vide impugned judgment dated 23.11.2011, primarily on the ground that after defection of all the witnesses named in the crime report, there was hardly an occasion for the trial Judge to return a guilty verdict on the strength of swapped witnesses, never named in the crime report. 2. Learned counsel for the petitioner blamed exasperating delays in the legal process to justify complainant’s departure abroad for good; according to him, the witnesses though not named in the crime report, nonetheless, had seen the gory incident and, thus, their testimonies can be safely relied upon to secure the ends of justice as brutal murder of an innocent teenager must not go unpunished; Criminal Petition No.126-P/2018 2 absence of a witness’s name in the crime report, otherwise proving his presence at the scene to have witnessed the crime is sufficient to bring home the charge as the First Information Report is not expected to be prosecution’s last word, concluded the learned counsel. 3. Heard. Record perused. 4. Gruesome murder of Falak Naz, a in her burgeoning youth, is most shocking to say the least, nonetheless, dispatching respondent to the gallows in the absence of reliable evidence, convincingly excluding every hypothesis of his innocence, is an issue altogether different. In our adversarial system of administration of criminal justice, responsibility lies with the prosecution to establish the charge “beyond doubt” on the preponderance of confidence inspiring evidence; the case in hand, unfortunately, fails to qualify the requisite standard/quality of proof. The complainant conveniently left the scene without even once appearing before the Court; same goes for the other witnesses that included Pashmina Bibi, no other than deceased’s aunt in first degree. No doubt, First Information Report is not an encyclopedia of prosecution’s case, nonetheless, it does contain certain details that serves as its mainstay in the voyage; witnesses are the most prominent part of those details as their testimonies provide evidentiary certainty regarding the guilt of an offender. Replacement of the witnesses previously named in the crime report with those, lacking reference therein, would inevitably tremor the whole edifice as the transposition reasonably hypothesizes their absence at the scene. Explanations furnished by the substituted set of witnesses find no support from the record as statement of Mst. Nasreen (PW-7), deceased’s mother, is contradicted both by the Investigating Officer (PW-8) as well as the site plan of the crime scene. In the absence of confidence inspiring evidence, the respondent could not have been convicted and sentenced merely on the strength of moral certainty regarding his guilt. View taken by the High Court being in accord with the well settled principles of safe administration of criminal justice calls for no interference. Petition fails. Leave declined. Judge Judge Peshawar, the 28th June, 2021 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE MUNIB AKHTAR MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CRIMINAL PETITION NO. 1267 OF 2022 (On appeal against the order dated 15.08.2022 passed by the Peshawar High Court, Peshawar in Crl. MBA No. 2260-P/2022) Mst. Asiya … Petitioner Versus The State and another …Respondent(s) For the Petitioner: Mr. Arshad Jan, ASC For the Respondent (2): Mr. Aftab Alam Yasir, ASC Syed Rifaqat Hussain Shah, AOR For the State: Mr. Shumail Aziz, Addl. A.G. Mr. Shahjee Hussain, Inspector Date of Hearing: 18.11.2022 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through the instant petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed the order dated 15.08.2022 passed by the learned Single Judge of the learned Peshawar High Court, Peshawar, with a prayer to grant post-arrest bail in case registered vide FIR No. 613 dated 03.06.2022 under Sections 302/34/297/201/203 PPC at Police Station Nowshera Kalan, District Nowshera, in the interest of safe administration of criminal justice. 2. Briefly stated the prosecution story is that husband of the petitioner namely Barkat Ali went missing on 18.05.2022. The petitioner reported the matter to the Police on 24.05.2022 vide Naqalmad No. 8. Thereafter, the local police initiated an inquiry wherein it transpired that on 19.05.2022, the local police of Police Station Nizampur found an unknown burnt dead body, which was buried in graveyard of Akora Khattak. The same Criminal Petition No. 1267/2022 -: 2 :- was identified by Asghar Ali, brother of the deceased. On 03.06.2022, said Asghar Ali got recorded statement under Section 164 Cr.P.C wherein he stated that his brother has been done to death by Noor Zaman and Hassan Dar on the instigation/abetment of the petitioner. Thereafter, the formal FIR was lodged in the instant case. 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 was only involved to the extent of abetment but no proof in this regard could be placed on record. Contends that the principal accused Hassan Dad has been granted post-arrest bail by the learned High Court, therefore, following the rule of consistency, the petitioner also deserves the same treatment to be meted out. Contends that the petitioner has a suckling baby girl of about 17 months of age with her, which alone entitles her for the grant of bail. Contends that the whole story narrated by the complainant is concocted one and no independent witness has been associated with the case. Lastly contends that the case of the petitioner squarely falls within the purview of Section 497(2) Cr.P.C. entitling for further inquiry into her guilt. 4. On the other hand, learned Law Officer assisted by learned counsel for the complainant defended the impugned order. It has been contended that though the petitioner is not specifically nominated in the crime report, however, a specific motive has been attributed to her. It is further argued that the baby of the petitioner is not residing with her in jail, therefore, she does not deserve any leniency by this Court. 5. We have heard learned counsel for the parties at some length and have perused the available record with their able assistance. There is no denial to the fact that it was the petitioner, who had reported the matter to the Police on 24.05.2022 that her husband went missing. It was subsequent in time that she was implicated in the case pursuant to the statement of brother of the deceased recorded under Section 164 Cr.P.C. after lapse of 15 days. Admittedly, the recovered dead body of the deceased was fully burnt and overall condition of the dead body Criminal Petition No. 1267/2022 -: 3 :- made it impossible to identify the deceased. According to the brother of the deceased, he identified the deceased from pictures, which prima facie may hamper the possibility of identification. We have been informed that although DNA test of the corpse has been done but the report is still awaited. We have specifically asked the learned Law Officer as to on which date the sample for DNA test was collected and sent to Forensic Science Laboratory and in how much time the report will come but no specific date could be pointed out to us. The only allegation against the petitioner is that the whole occurrence was committed by the accused on her instigation/abetment. However, no specific date, time and place where the conspiracy was hatched has been mentioned in the said statement. Even name and number of witnesses to that extent are not available on the record. 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 abetment. All the three ingredients of Section 107 PPC are prima facie missing in this case. We have specifically asked the learned Law Officer and the learned counsel for the complainant to show us from record any material, which could prima facie connect the petitioner with the commission of the crime but except the Call Data Record (CDR), nothing could be relied upon. This Court in a number of cases has held that in absence of any concrete material the Call Data Record is not a conclusive piece of evidence to ascertain the guilt or otherwise of an accused. We have been informed that the petitioner has two children, one of which is a suckling baby girl of 17 months, who has been confined with her in jail. The other one is living with the grandmother. Learned counsel for the complainant could not deny this fact. In Mst. Nusrat Vs. The State (1996 SCMR 973) this Court has candidly held that “the suckling child of the petitioner kept in jail is undoubtedly innocent. He is kept in jail with mother obviously for his welfare. The concept of "welfare of minor" is incompatible with jail life. So, instead of detaining the innocent child infant in the jail for the crime allegedly committed by his mother, it would be in the interest of justice as well as welfare of minor if the mother is released from the jail.” This view was further reiterated by this Court in Criminal Petition No. 164/2022 passed on 14.04.2022. The principal Criminal Petition No. 1267/2022 -: 4 :- accused namely Hassan Dar has been granted post-arrest bail by the learned High Court. We are of the considered view that the case of the petitioner is even at better footing as compared to the said accused. In this view of the matter, following the rule of consistency, the petitioner also deserves the same treatment to be meted out. Reliance is placed on the case reported as Muhammad Fazal @ Bodi Vs. The State (1979 SCMR 9), Muhammad Ajmal Vs. The State (2022 SCMR 274) & Muhammad Usman Shakir Vs. The State (2021 SCMR 1880). The petitioner is behind the bars for the last more than five months. This court has time and again held that liberty of a person is a precious right, which cannot be taken away unless there are exceptional grounds to do so. She is otherwise a woman and her case is covered by first proviso to sub-Section 1 of Section 497 Cr.P.C. Merely on the basis of bald allegations, the liberty of a person cannot be curtailed. In these circumstances, the petitioner has made out a case for bail as her case squarely falls within the purview of Section 497(2) Cr.P.C. entitling for further inquiry into her guilt. 6. For what has been discussed above, we convert this petition into appeal, allow it and set aside the impugned order dated 15.08.2022. The petitioner is admitted to bail subject to her furnishing bail bonds in the sum of Rs.200,000/- with one surety in the like amount to the satisfaction of learned Trial Court. The above are the detailed reasons of our short order of even date. JUDGE JUDGE JUDGE Islamabad, the 18th of November, 2022 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Umar Ata Bandial Mr. Justice Syed Mansoor Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.1268-L of 2021 (Against the order dated 17.08.2021 passed by the Lahore High Court Lahore in Crl. Misc. No. 23255-B/2021) Dilawar Ali …..Petitioner(s) Versus The State, etc. …Respondent(s) For the Petitioner(s): Mr. Javed Imran Ranjha, ASC (via video link Lahore) For the State: Ch. Muhammad Sarwar Sidhu, Addl. P.G. Punjab along with Shirjeel Awan, SI and M. Usman, SI Date of Hearing 27.01.2022. ORDER Qazi Muhammad Amin Ahmed, J.- Declined downstairs throughout, lastly by a learned Judge-in-Chamber of the Lahore High Court Lahore, vide impugned order dated 18.07.2021, Dilawar Ali, petitioner herein, blamed to have strangulated his better half Muqaddas Bibi, survived by an infant daughter of 9 month, to death, seeks leave to appeal therefrom for admission to post arrest bail. The deceased, often complained maltreatment and shared agony with her parents, however, she was advised to exercise restraint to save the bond, a hope that withered away on the fateful day. Petitioner attempted to hush up the death as suicidal, an hypothesis seemingly contradicted by the autopsy report. 2. Heard. Record perused. 3. With an infant baby girl of 9 months, it is rather hard to entertain hypothesis of suicide by a feeding mother. Medical Office noted a ligature mark around the neck seemingly a complete scar, Criminal Petition No.1268-L of 2021 circumference the neck between both ears; it is thick and hard with parchment, without there being any obliquity, that inevitably occurs in a case of voluntary suicide on account of sudden fall through gravitational pull. External as well as internal patcheal hemorrhage unmistakably suggest application of manual compression, a sign diametrically inconsistent with the plea of suicide, further confirmed by an intact hyoid bone. Instead of taking the police on board, petitioner preferred to avail remedy of ad interim pre-arrest bail, a protection hardly available to him under the law, however, finally recalled on 29.10.2020 and it is thereafter that he came up with the plea of suicide, a circumstance nugatory in itself. Joint abode of the spouses is a common ground and, thus, a statutory burden within the contemplation of Article 122 of the Qanun-i-Shahadat Order, 1984 is cast upon the petitioner to explain as to what befell upon his wife who spent the preceding night with him under the same roof; his failure to vindicate his position is further aggravated by the statements of witnesses, suggesting an ongoing acrimony between the spouses and, thus, constitutes “reasonable grounds” within the contemplation of section 497 of the Code of Criminal Procedure, 1898. View concurrently taken on the basis of aforementioned material, being within the remit of law, is not open to any legitimate exception. Petition fails. Leave declined. Judge Judge Judge Islamabad, the 27th January, 2022 Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Maqbool Baqar Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.1269 of 2020 (Against the judgment dated 12.10.2020 passed by the Lahore High Court, Multan Bench in Crl. Misc. No.4045-B/2020) Syed Hamad Raza …Petitioner(s) Versus The State & others …Respondent(s) For the Petitioner(s): Mr. Khuram Masaud Kiyani, ASC Syed Rifaqat Hussain Shah, AOR For the Respondent(s): Mr. Altaf Ibrahim Qureshi, ASC Mr. Sanaullah Zahid ASC Mr. Anis M. Shahzad, AOR with accused For the State: Mirza Abid Majeed, Deputy Prosecutor General with M. Ashraf, I.O. Date of hearing: 16.11.2021. ORDER Qazi Muhammad Amin Ahmed, J.- Aqeel Abbas and Syed Samar Abbas, members of an unlawful assembly, blamed for murderous assault as well as homicide, in the backdrop of a dispute that cropped up soon after a religious congregation, within the precincts of Police Station Harrapa, District Sahiwal on 15.5.2020, an incident wherein three persons lost their lives while four others survived the assault with multiple injuries, were admitted to bail in anticipation to their arrest by a learned Judge-in-Chamber of the Lahore High Court at Multan Bench vide impugned order dated 12.10.2020. The learned counsel, at the very outset, does not press this petition to the extent of Syed Samar Abbas, saddled with mere presence at the crime scene, however, contends that there was no occasion for grant of judicial protection to Aqeel Abbas, attributed a butt blow to the Criminal Petition No. 1269 of 2021 2 petitioner, a role duly confirmed by medico legal examination, conducted same day, under a police docket; it is next argued that investigation confirmed respondent’s participation in the occurrence and, thus, his remission into custody for recovery was a most essential step, grievously hampered to the detriment of prosecution by the impugned order; colossal loss of lives with massive violence endured by the witnesses sans space to entertain any hypothesis of mala fide, a sine qua non, to extend extraordinary protection of pre-arrest bail, concluded the learned counsel; he has been joined in his opposition by the learned Law Officer. Contrarily, the learned counsel for the respondents argued that the injury shown to have been suffered by the complainant could well be result of a fall, in any case, designated as Shajjah-i-Khafifa within the contemplation of section 337 A(i) of the Pakistan Penal Code, 1860, scheduled as bailable and as such the respondent was justifiably granted pre-arrest bail. 2. Heard. Record perused. 3. The respondent prominently figures in the array of assailants in the crime report with a specific role supported by the witnesses in their statements recorded under section 161 of the Code of Criminal Procedure, 1898; medical evidence, prima facie, confirmed the role assigned to the respondent and, thus, we failed to find any justification for the High Court to extend judicial protection merely on the ground that “he was related to the co-accused or that probability of his false implication as a result of wider net and exaggeration being possible factors constituted mala fide intention and ulterior motive” ; such sweeping findings with drastic consequences for the prosecution at the initial stage of the case, that too, structured subjectively on a premise lacking evidential foundations failed to commend our approval. Similarly, we are not impressed by the argument that the respondent could only be saddled with the mischief of section 337 A(i) of the Code ibid as the injury allegedly caused by him was medically opined as Shajjah-i-Khafifa for the plain reason that role of a participant in a non- bailable offence cannot be quantified to stretch out space for his admission to pre-arrest bail nor can be viewed as a factor to dispense with the requirement of reasonably demonstrating mala fide behind the intended arrest; such matters are part of a post arrest bail agenda, not a substitute for pre-arrest bail. For effective and meaningful administration of criminal justice to curb criminal behaviours and with a view to put in place effective deterrence, law must take its course, Criminal Petition No. 1269 of 2021 3 unmistakably, arrest in cognizable non-bailable offences, without let or hindrance, for smooth conclusion of investigative process. Petition to the extent of respondent Aqeel Abbas is converted into appeal and allowed; impugned order dated 12.10.2020 to his extent is set aside and bail granted to him is cancelled. Judge Judge Islamabad, the 16th November, 2021 Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Maqbool Baqar Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.1271 of 2019 (Against order dated 21.11.2019 passed by Lahore High Court Lahore in Crl. Misc. No.65106-B/2019) Babar Latif …Petitioner(s) Versus The State through P.G. Punjab & another …Respondent(s) For the Petitioner(s): Khawaja Awais Mushtaq, ASC For the respondent(s): Mr. Azhar Ch. ASC Syed Rifaqat Hussain Shah, AOR For the State: Mirza Abid Majeed, Deputy Prosecutor General, Punjab with Anwar, SI. Date of hearing: 16.1.2020. ORDER Qazi Muhammad Amin Ahmed, J.- Behind bars since 28.8.2019, Babar Latif, petitioner seeks admission to bail; he alongside co-accused is attributed fatal shot to the deceased, en route with his sons on 27.4.2019 at 9:00 p.m. within the remit of Police Station Saddar Sialkot; crime report sans the motive. Specific role qua the deceased notwithstanding, nonetheless, the petitioner was blamed by the investigator to have instead abetted the crime without being present at the spot. Co-accused Adnan, saddled with the recovery of .30 caliber gun has since been arrested; forensic report regarding comparison of the gun with the casings is being awaited. 2. Heard. Record perused. 3. There are five accused, each armed lethally, assigned distinct shot to the deceased after having waylaid/intercepted the Criminal Petition No.1271 of 2019 2 entourage, leaving others unscathed; findings recorded by the Investigating Officer are not inconsonance with the accusation assigned to the petitioner, taking on board each assailant distinctly with a solitary shot at a desolate place during dark hours. In the totality of circumstances, petitioner’s culpability, without prejudice to the prosecution case set up in the crime report, can be best settled after recording of evidence and as such his plea warrants further probe within the contemplation of subsection 2 of section 497 of the Code of Criminal Procedure 1898. A case for grant of bail stands made out. Consequently, criminal petition is converted into appeal; allowed. The petitioner shall be released on 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. Judge Judge Islamabad 16th January, 2020 Not approved for reporting Azmat/-

ن�� � ِ�ا� )��ا �� ر�اِ( د��: � ،�� � � ب� � ،ن� � �ود � ب� ى� �ا تز�ا ل� �ا� �اد ض� ىرا��ِ١٢٧٣/٢٠١٦  � ِ�ز)٣(١٨٥،ر�دِِ �ر� ��ا  ل� �� ن��١٩٧٣� ) ف�ِ �� ہر ٢٨�� ٢٠١٦�،� �� ہد� ىر� رو� ،رو� �� ِ�ا�  � �ا�رد �� ىرا�� �٢٦٠٦�۔/٢٠١٦( ١۔ د� ��و ٢۔ فو�ا �ا ن�ا� ن� � )����ن( م� ١۔ ر��ر�� �ر� �و ى �� ہا��� ٢۔ � د� )� ل�( ن��� ���:  ب� ��� ِ�ا� ، �و �� ، ن� مدآ �� ِ�ا� ،�و � ،) �� �( ر�� ��/ ہا��� ��:  �� ،�� �� �از ب� ىر��� ِ�ا� ،�و ِ�� ِ�ر��� : ١١ىر� ، ٢٠١٧ � Crl.P.L.A. No. 1273 of 2016 2 /� �آ ِ� � ،ن� � �ود:۔ �� �ٔ ��:  � � ل�٢/� د� � � �  ل� ِ� ہا� ت�د� ٔ� � ل� ل� ِ �� � �ا ،ن� �� �، ن� �  ��� �ر� � � ٹر�ر ں� � ہ�� �٣١۔٠٨ ۔٢٠١٦ �   � ہ�ا� � �� ىد ع�ا � � ر�ارڈ ن� ٔ�ر� � ا� ہ� � � ہڈا � � � شا �� َ  ��ا �ا�ا ۔�� ہ� � � ن� � روا � � �� ہو � ع�ا �ا ۔� ��و � ��و ِ�و � ٢٢   � تار ٹر�ر � � �� � � ىد � ��و ل� �� �� � � � � جرد � � � � �ا�ا ل� � � ر�ا �� روا �ا� � م� �  � نا روا � �د �� � �  ىرا��د � �� ت�� ہ� روا � � �ر ع�ا �ا � � ۔� ے�د �� ٹر�ر � ہ� ۔� � ى��ا �د �ا � سا � �� � ٢۔  �� ��٣�� � � ند ُ�  ِ�ز ن� �ا روا �� ت�� ��ا �� � �� � ن�ز � ر  �د١٦٤ ىرا�� ٔ�� ور � ل� � ا� �� ہو � � ۔� � ڈر�ر �� و� �� � �� �/ � ت� � �ر� � � روا �ر �ود روا٣١۔٠٨۔٢٠١٦  � روا ہو ء� ز� زا � �ِ ن� )ہا� (� � � � روا � � �� � � �� � �� نارود سا � � فو �ار ف��   � ن� روا�)�ا ن�ا (� � � � �� ٗہ� ۔� � � �د�ز � ل� � روا �آ ل�  � ہا� ہر��ا� � زاوآ � ��� � سا � � �و � ُ �� �ا� راد �ذ � � � �� ں�ود  ۔� م� توا� ٔ�و � � � � سا ٣۔ � � ن�ز � ر� ن� ہر��۔� د� � تر� ىر� � ��ا ٔ � ٤۔  � �ا ت�ا� �� � �� ِ�ا� � � سا � ىد تد� ��او � � ہا� ہر�� ��� ن� � �ا � سا  � � سا � ىد � �� ِ�ا� �ا�رد  �� � � ىد تد� � سا � �ا� �� نارود � �� � ن� � ا�ود � سا � � ر�ِ �� �د � �  � �ر ف� �ا � �ا سا ۔� �� � �د ن� � �� � ں�ا � �ا � ن� � ہا� ہر�� �� � ر� ى�� � ں��ا � ن�� روا ف�ا � سا � �� � � �ذ �او ��  ��  Crl.P.L.A. No. 1273 of 2016 3  � سا � �ر� � تار روا � �ود � ل� � � ہر�� ہا� ل� � � ہو � �ُا ت�ا� �� � �آ � ں�ود �� � � �� ا� � ت� � �ا � �ود ى�  � � � � � � سا �  روا � � � � ل�١٢٠� � م� � � زاوآ � ��� � �  سا � � � ہ� � سا � ل�  ہرا� �ز � � � � � �آ م� � � � روا � � ،ں� ��� � ے� م� �و � ��  � ا�ود ۔ � �ا را� � � �ذ �ا� � ى ہا� �� �ر م� � �ود � � � � �� � �  � ر� � � � � ،� � � �� رو� � � و � � ل� � ن� �ا � سا�   ہ�و سا روا � تر� � �� ر�ا � ��ا � سا �� ۔� � ر�ا ��� �� � � ء� �  �� � زور � �ا� روا �د � � �� ن� � � �� � ں� � سا � فو� � � راد� ��ا ہا� ر� �� � �� � � ۔ ا� اس � �  روا را�  �� ����ا� � ہا�   � ر� ىذ م� �ا راد�� � �� � � � � �دآ � �� ِ�ا� � �� � � � ��   �ا�رد � � ل�ا � � ۔� ىد � �� �� ��  ىدازآ � ن�ا �ا �د � ��  � ۔� �� � �� م� � ��� � ى�� � سا ا �  � � سا � �� � � � � ً�ر   � � �ا�رد ِ�� نارو� � ور � � �� � � د� � ں��ا � � � �ا�ردُِ �� ن�� � � � � �د را� �ز� �� �د � م� ہ�� � � ل� �� � ��ر � �� �  نا�"ر�� م� ر�"� �٨١ ل� ١٩٧٢�� �� ۔� ہ�  � � � ِ�ا� � � ل� �� "ر�� م� � قر�" ل� ہ� �� ،��ر ��� � �� ن��،١٩٩٥ �� ٣٤ � ل�ا � �� � � ں� ۔� � � �او �� �� ت�وا �ا � � �� �� �او � ہر�ود �� �  ت�ز ِ�� �ار � � ِ�� ن�� � ز� � �� ِ�ا� روا ن�� � �� � / ت��  � � ن�� ��� � �د �رد � تد� ى�� � �� � �و� ى�� �ار � � �� � � � �ا سا ف� � � � �ر �رد � تد� �� ف� � �ر � � �رد � تد  ت�� ۔� � � � � حو� � � ت�� �رذ � �آ � � ل� � حو� � � �� ��� � ى�� ہ�آ � سا ا� � � � ��� � ں�� � م� � �د را� تد� � ز�  �ا� ۔�� �� ن��ا� � ں� �� ��و � � ت� سا تد� ��او � � � ��  م� � تد� ��او � � روا � �ر � رو� � ظ� � ى� �رد � ن�� ىرا�� � �ا � ں� � � � �ا� � �� سا ں�� � روا ل� روا ے� ر�ا � ى�ز �ا Crl.P.L.A. No. 1273 of 2016 4  ى� �ا �ا � ى� سا �� ے� �� � �او �� � ن�رد � �او �� � � � � �  � ن�رد � ں�ود� روا � �� ٹ� �ار سا ا� ى�� � ت� �ا� � تد� � �/ � �ا �د � � � ف�� �� � ں��ا �۔ ٥۔ � ��ا �ا  �� ِ�� نارودِ � ا� � �� �� م� � ے� �ا� تد� ل�  � ر� � �� �ا�ا ِ�ا� ��� ہ�� � و � و ہ�� ى�� ىر� � � �� ������ �� � � �� تد� ہد� �ا� � � �� روا۔ے� �� � ں��ا � ف�ا و ن�� روا � د� �   �� � ر� �ا تز�ا ل� �ا� ا� �ا�ردِِ۔� �� � ر� ن��� �ا� ٹ�: ت��وِ� ےر� �� �� � ى��ا�ر� ١١۔٠١۔٢٠١٧ � � � � �� � �� � � �ذ � � �� �ا�ود:۔ “For the reason recorded to be later on, petitioners are admitted to bail subject to furnish bail bonds in the sum of Rs.100,000/- each with two sureties each in the like amount to the satisfaction of learned trail Court, this petition is converted into appeal and allowed.” ٦۔ ۔� �� � ھ� � �ا� � � � ،د�آ م�ا١١،ىر� ٢٠١٧� )ر� � � ��ا( �و �ا

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Maqbool Baqar Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.1280 of 2019 (Against order dated 22.10.2019 passed by Lahore High Court in Crl. P. NO.54210-B/2019) Zaka Ullah …Petitioner(s) Versus The State & another …Respondent(s) For the Petitioner(s): Mr. Babar Awan, Sr. ASC Syed Rifaqat Hussain Shah, AOR For the State: Mr. Abid Majeed Mirza, Deputy Prosecutor General Punjab with Pervez, I.O. For the Respondent(s): Mr. Shahid Azeem, ASC Date of hearing: 15.1.2020. ORDER Qazi Muhammad Amin Ahmed, J.- Behind bars since 17.5.2019, Zaka Ullah, petitioner seeks admission to bail in a case of homicide; on the fateful day, he allegedly drove and whisked away co-accused Usman Ashraf on a motorbike after the deceased, on a motorbike as well, was dealt with multiple fire shots, including one by him. Motive for the crime is a runaway marriage. The deceased succumbed to the injuries after a brief struggle at the hospital; before the Medical Officer, amongst others, he accused Farooq and Waqas for having mounted the assault, however, First Information Report recorded on the statement of Ikram Aslam specifically named the petitioner with a role, nonetheless, belied by the Investigating Officer. 2. Heard. Record perused. Criminal Petition No.1280 of 2019 2 3. According to the crime report, the deceased was repeatedly shot initially by Muhammad Ashraf co-accused by a .30 caliber pistol, subsequently taken over by the petitioner to conclude the occurrence with the last shot, a role conspicuously omitted alongside the name in the last declaration, an apparent dichotomy to be best settled after recording of evidence. Investigating suggests petitioner’s presence at the spot, albeit with no role, a circumstance additionally calling for further probe in the alleged culpability; a case for release on bail stands made out. The petitioner shall be released upon furnishing bonds in the sum of Rs.500,000/- with two sureties each in the like amount to the satisfaction of the learned trial Court. The petition is converted into appeal and allowed. Judge Judge Islamabad 15th January, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE MUSHIR ALAM MR. JUSTICE DOST MUHAMMAD KHAN Criminal Petition No.1287/2016 (On appeal from the judgment dated 28.10.2016 passed by the Peshawar High Court, Bannu Bench in Crl.Misc. Jail Application 350-B of 2016) Awal Khan and others … Petitioner(s) VERSUS The State thr. AG-KPK and another … Respondent(s) For the petitioner(s): Mr. Amjad Iqbal Khan, ASC Syed Fayyaz Ahmed Sherazi, AOR (absent) For the State: Mr. Muhammad Aslam Ghumman, ASC Mr. Munawar Khan, ASI/IO Date of hearing: 12.1.2017 ORDER Mushir Alam, J.— For the reasons to follow, the petitioners are admitted to bail in case F.I.R. No.437 dated 6.8.2016, PS District Lukki, but subject to furnishing surety in the sum of Rs.2,00,000/- each with P.R. Bonds in the like amount to the satisfaction of the Trial Court. Petition is converted into appeal and allowed. Judge Judge Islamabad, the 12th January, 2017 Nisar/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Munib Akhtar Mr. Justice Qazi Muhammad Amin Ahmed Criminal Petition No.1290 of 2021 (Against the judgment dated 01.11.2021 passed by the Lahore High Court, Rawalpindi Bench in Crl. Misc. No.7752/2021) Muhammad Shoaib …Petitioner(s) Versus The State & another …Respondent(s) For the Petitioner(s): Mr. Aftab Alam Yasir, ASC For the Respondent(s): N.R. Date of Hearing: 06.12.2021. ORDER Qazi Muhammad Amin Ahmed, J.- The petitioner, blamed to have violated Nadia Bibi, prosecutrix, inside her home, located within the precincts of Police Station Jatoi, District Muzaffargarh, on 23.5.2021, unsuccessfully attempted for bail in anticipation to his arrest, first, through Criminal Miscellaneous No.7079-B/2021, dismissed as withdrawn before a learned Judge-in-Chamber of the Lahore High Court at Multan Bench; earlier dismissal, notwithstanding, he once again applied through Criminal Miscellaneous No. 7752-B/2021, dismissed vide impugned order dated 01.11.2021, by the learned Judge in limine. Confronted with petitioner’s choice to withdraw the motion by his own election, the learned counsel pleaded that withdrawal being simpliciter without adjudication on merits of the case did not stand in impediment to re-hearing of the plea; an argument found by us as entirely beside the mark. It is by now well settled that an accused can maintain a subsequent bail petition, at post arrest stage, only on the strength of a fresh ground, accrued after dismissal of his first plea. It Criminal Petition No.1290 of 2021 has been held by this Court in the case titled The State through Advocate General N.W.F.P. vs. Zubair Ahmed and 4 others (PLD 1986 SC 173) that a ground earlier available but abandoned cannot be received as a fresh ground and, thus, consequences of withdrawal of a bail petition, made at any stage of hearing, cannot be quantified nor viewed as simpliciter and as such does not allow space for a second attempt in the absence of a newly accrued ground. For all intents and purposes, it is an abandonment, resorted to, more often than not, in the face of an impending dismissal. After withdrawal of a pre-arrest bail petition, exclusively maintained on the consideration of mala fide, hardly there is an occasion for a somersault. Petition fails. Leave declined. Judge Judge Islamabad, the 6th December, 2021 Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE SAJJAD ALI SHAH MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CRIMINAL PETITIONS NO.1298 & 1612 OF 2017 (Against the judgment of the Lahore High Court, Lahore dated 08.11.2017 passed in Murder Reference No.199 of 2015/Criminal Appeal No.328-J of 2015) Muhammad Asif : (In Crl.P.1298/2017) Mehboob Alam : (In Crl.P.1612/2017) … Petitioner Versus Mehboob Alam and another : (In Crl.P.1298/2017) The State through P.G. Punjab & another : (In Crl.P.1612/2017) … Respondents For the Petitioner : Raja Ghazanfar Ali Khan, ASC Javed Iqbal, ASC (In Crl.P.1298/2017) Ch. Walayat Ali, ASC (In Crl.P.1612/2017) For the (State) : Muhammad Jaffar, Addl.PG Punjab Date of Hearing : 22.04.2020 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J:- The petitioner has sought leave to appeal under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 against the judgment of Lahore High Court, Lahore dated 08.11.2017 in Murder Reference No. 199/2015/Criminal Appeal No.328-J/2015. 2. The petitioner was arrayed one of the accused in case FIR No.693/2011 dated 15.11.2011 offence under section 302/324/337-F(i), 337-F(vi)/34 PPC registered with Police Station Sharakpur District Sheikhupura lodged at the instance of one Criminal Petitions1298 & 1612 of 2017 -:2:- Mehboob Alam. The complainant of this case being aggrieved by the conduct of local police investigation agency preferred to file “complaint” in the court of Learned Sessions Judge, Sheikhupura titled as “Mehboob Alam vs, Muhammad Asif and others” under section 302/324/34/337-F(i) PPC on 11.01.2012. The learned trial court proceeded with the “complaint” in the spirit of the law laid down by the superior court and as such the charge was framed vide order dated 22.05.2012. The learned trial court after completion of the trial came to the conclusion that the prosecution has succeeded to prove the case against Muhammad Asif for the commission of Qatl-i-Amd of Tanvir Ayyub hence, he was ordered to be convicted under section 302(b) PPC and was sentenced to death. He was further directed to pay compensation of Rs.2,00,000/- to the legal heirs of the deceased under section 544-A Cr.PC. He was further to undergo S.I for six months in case of default. The judgment of the learned trial court was assailed before Lahore High Court, Lahore through Criminal Appeal No.328-J/2015 (Muhammad Asif vs, the State), Murder Reference No.199/2015 was also sent to the court under section 374 Cr.PC for its confirmation. Both the matters were adjudicated and decided by the Learned Division Bench of Lahore High Court, Lahore vide judgment dated 08.11.2017. The learned Division Bench after taking into consideration all the facts and circumstances decided the matter while converting sentence to death into imprisonment for life with reasons assigned qua quantum of sentence hence, the instant petition before us. Criminal Petitions1298 & 1612 of 2017 -:3:- 3. At the very outset, it has been argued by the learned counsel for the petitioner that in fact, it is a case of no evidence. The learned courts below had not taken into consideration the evidence available on record and the same has not been appreciated according to the principle of “appreciation of evidence” enunciated by the superior courts from time to time. Contends that though in the FIR against the column date and time of occurrence, it has been mentioned as 15.11.2011 ﻼﯾو مﺎﺷ but the same is not part of the statement made by the complainant at the time of chalking of the FIR, that even the “complaint” lodged by the complainant just after lapse of three months of registration of crime report, also not mentioned the date and time of occurrence. Further contends that the postmortem in this case was delayed by twelve to twenty four hours which further lend support to the fact that it was unseen occurrence and whole proceedings were carried out at a belated stage after due deliberation. Contends that the statement of the prosecution witnesses of the ocular account is at variance and if the same is taken into consideration, it do not inspire confidence to sustain conviction in case of capital charge. Contends that the ocular account is also in contradiction to the medical evidence which further lend support to the stance taken by the defence that none of the witness was present at the spot and it was an unseen occurrence and the petitioner was involved because of previous animosity. Lastly it was argued by the learned counsel for the petitioner that the salutary principle of “benefit of doubt” was not extended in favour of the petitioner and as such it is a fit case for interference by this Court in the interest of justice. Criminal Petitions1298 & 1612 of 2017 -:4:- 4. On the other hand, learned counsel appearing on behalf of the complainant argued that the Learned High Court has erred while altering the sentence to death into imprisonment for life. Contends that it was preplanned murder, normal sentence provided under statute is death but the learned High Court has extended artificial reasoning while converting the sentence of death into imprisonment for life. Contends that the judgment of the learned trial court is not sustainable in the eyes of law. The learned law officer has also adopted the contention raised by the learned counsel for the complainant. 5. We have heard learned counsel for the parties and gone through the record with their able assistance. 6. There is no second cavil to this proposition that initially the matter was lodged with the local police for initiation of proceedings against the accused persons nominated in the crime report but within a period of three months the complainant lost confidence in the fairness of the investigation and as such preferred to file “complaint” before the learned trial court. Though, the complainant has mentioned in his “complaint” that the accused persons nominated in the crime report are men of means having political interference and there is no scope of fair investigation but this aspect was not elaborated with any particular instance. As far as the contention of the learned counsel for the petitioner that particularly the time of occurrence has not been mentioned while lodging the “complaint” and it was not even part of the record at the time of making statement before the court. Criminal Petitions1298 & 1612 of 2017 -:5:- 7. Bare perusal of the crime report which was lodged with promptitude reflect the date and time of occurrence against the specific column which is part of the form has been duly mentioned. Hence, the contention of the learned counsel for the petitioner that it is unseen occurrence has lost its probative value hence, the same is repelled. Another aspect of the case that the postmortem in this case was delayed by twelve to twenty four hours was taken into consideration by us. In the instant case, one person lost his life, while there were two injured persons, those were evacuated to Mayo Hospital from the place of occurrence which is at a distance of 30/40 KM. Possibility of consuming the time in transportation might lead to delay in postmortem examination which was still fairly good as the doctor has opined proximately that it ranges from twelve to twenty four hours. In a country where the medical facility cum availability of paramedics for the job assigned is not an easy task, the consumption of such a time seems to be quite reasonable hence, the prosecution evidence cannot be brushed aside on this score alone to extend the benefit of doubt as claimed. We have also noticed that there is previous hostility between the parties, hence it too does not inspire confidence and the same is repelled. We have noticed that the learned High Court while converting sentence to death into imprisonment for life has assigned justifiable reasoning supported by facts and law hence, the same seems to be well reasoned and meet all the standards of safe administration of criminal justice. 8. In view of the facts and circumstances narrated above and the reasons assigned, we do not find any scope for interference Criminal Petitions1298 & 1612 of 2017 -:6:- into judgment of the learned High Court hence, the instant petition before us is dismissed. The conviction and sentence inflicted upon by the learned High Court is upheld. As a consequence, leave to appeal is refused. Judge Judge Islamabad, 22.04.2020 Approved for reporting. Syed Rashid Maqsood

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Sarmad Jalal Osmany Mr. Justice Dost Muhammad Khan Criminal Petition NO.12 of 2014 (On appeal from the judgment dated 23.12.2013 passed by the Lahore High Court, Lahore in Crl.Misc. No.12290/B/2013) Muhammad Ramzan … Petitioner versus The State Muhammad Hussain … Respondents For the petitioner: Mr. Muhammad Akram Gondal, ASC A/w petitioner in person For respondent No.1: Ch. Zubair Ahmed Farooq, Addl. PG, Pb. A/w Qaiser Riaz, IO For respondent No.2: Mr. Basharatullah Khan, ASC Date of hearing: 07.02.2014 ORDER Dost Muhammad Khan, J.— This petition for leave to appeal has been filed against the judgment of learned single Judge in Chamber of the Lahore High Court dated 23.12.2013 refusing pre- arrest bail of the accused petitioner in case FIR No.1145/2012 registered for crimes under sections 420, 468, 471 PPC on 21.11.2012 by Police Station Civil Lines, District Faisalabad. 2. It is alleged in the FIR by Muhammad Hussain respondent that a forged letter was manipulated ostensibly shown to have been written by the Director Excise & Taxation bearing No.ADM-111-39 Crl.P.12 of 2014 2 dated 30.08.2008 containing an order of demotion of the complainant from the post of Excise Inspector to that of Clerk. During departmental inquiry this letter was found to be forged and tampered one. 3. It is also alleged in the FIR that complainant while attached to Circle Islam Nagar, Block No.5 of the Excise Department discovered that one Babar Naseem Junior Clerk with the connivance and assistance of Excise Inspector Iftikhar Hussain Bhatti replaced the sheets of the relevant register of property tax causing loss in million rupees to the public exchequer and it was on his pointation that they both were proceeded against departmentally on such allegations, thus, their services were terminated and recovery of embezzled amount was also ordered by the competent authority. 4. It was on that account that after having developed personal grudge against the complainant, they hired the services of present petitioner to terrorize and harass the respondent and in the preparation of the above forged office order the present petitioner was equal partner, which was proved false and forged in the departmental inquiry. 5. It was contended by the learned ASC for the petitioner that co-accused equally charged with the same and similar allegations have been granted bail, both on merits and on the principle that offences under sections 468, 470 are non-compoundable while offences under sections 420 is punishable with 7 years RI. Thus, none of the offences fall within the prohibitory limb of section 497 Cr.PC. Hence, not only on the principle of consistency petitioner is entitled to grant of pre-arrest bail but also because as has been laid down by this Court in the case of Tariq Bashir v. The State(PLD 1995 SC 34) that grant of bail in the Crl.P.12 of 2014 3 offences not punishable with imprisonment for less than 10 years shall be a rule and refusal shall be an exception. 6. Learned ASC for the complainant/respondent and the Prosecutor General Punjab opposed the grant of pre-arrest bail on two- fold grounds that co-accused was granted post arrest bail and for grant of pre-arrest bail element of malafide is to be essentially established and because his pre-arrest bail was not confirmed by the learned Trial Judge, he escaped from there without surrendering to the lawful custody of the police or the Court, hence he is not entitled to such extra-ordinary relief. 7. We have attended to the record available before us and after hearing the submissions of both the sides we are of the view that there are many omissions in the case committed by the investigating agencies, however, at this stage we will not discuss those points in detail, lest it prejudice the case of one or the other side. However, suffice it to say that the co-accused to whom the same and similar role was attributed in the transaction, has been granted post arrest bail and because the charge against both the accused is of indivisible nature and because the two officers who were removed from service during departmental inquiry have been reinstated into service, as was stated at the bar, thus, in the circumstances, the petitioner would certainly be entitled to grant of post arrest bail, if his pre-arrest bail is not confirmed. Such exercise would neither improve the case of the prosecution in any manner during investigation nor would serve the ends of justice because the petitioner too would be entitled to post- arrest bail on the principle of consistency, fully attracted in his case. Crl.P.12 of 2014 4 8. Accordingly, this petition is converted into appeal and is allowed. The interim pre-arrest bail granted to the petitioner on 16.01.2014 is accordingly confirmed on the same surety bonds. Judge Judge Islamabad, the 7th February, 2014 Nisar/* Not Approved For Reporting

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE MUNIB AKHTAR MR. JUSTICE QAZI MUHAMMAD AMIN AHMED Criminal Petition No.1303 of 2021 (Against the order dated 01.10.2021 passed by the Islamabad High Court Islamabad in Crl. Misc. No. 931-S/2021) Mst. Kainat Bibi … Petitioner(s) Vs The State and another … Respondent(s) For the Petitioner(s) : Mir Afzal Malik, ASC For the State For the Respondent(s) : : Mr. Niaz Ullah Khan Niazi, Advocate General, Islamabad with Nawaz, I.O. Mr. Khurram Masood Kiani, ASC Date of Hearing : 09.12.2021 ORDER Qazi Muhammad Amin Ahmed, J.:- Behind bars since, 24.4.2021, the petitioner, a maid employed in a household within the precincts of Police Station Shalimar Islamabad, was suspected by her employer to have stolen gold ornaments valuing Rs.2.5 million; during investigation, pursuant to her disclosure, she led to the recovery of some of the stolen articles. She has been denied bail throughout, lastly by a learned Judge-in-Chamber of the Islamabad High Court vide impugned order dated 01.10.2021, an order, strenuously defended by the learned Advocate General Islamabad on the ground that trial, being in progress with an accelerated pace is likely to conclude soon and, thus, it would be rather inexpedient to release her near fag-end of the case. 2. Heard. Record perused. 3. Be that as it may, offences complained do not fall within the prohibitory clause of section 497 of the Code of Criminal Procedure, 1898. Doors for petitioner’s release, being a female with Cr.P.1303/2021 -:2:- no past record, are statutorily wider and, thus, her continuous detention, is certainly serving no useful purpose. Evidentiary value of recovery dated 25.4.2021, allegedly attributed to the petitioner, au fait, accomplished by a male police officer in violation of subsection 5 of section 176 of the Code ibid is to be best adjudged during the trial inasmuch as the petitioner was taken into custody on 24.4.2021 and could not be held in police custody in violation thereof. A case for grant of bail stands made out. Petition is converted into appeal and allowed. Appellant/ petitioner is admitted to post arrest bail on her furnishing bond in the sum of Rs.50,000/- with two sureties in the like amount to the satisfaction of the learned trial Court. Judge Judge Islamabad, the 9th December, 2021 Azmat/*

INIJIF SupIZEME COURT Or' PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE IIAZHAR ALAM "AN MIANKUEL MB. JUSTICE JAMAL 1,-IAN MANDOKIWL .juj inal petition Nos. 1313-L 1314-L & IM5-L OF 2021 passed sed by the (On appeal against the judg Lahore High Court, Lahore in Crl.MiscN05.18739B & I'.744-B of 2023) \ Rohan Ahinad (cl.P!313-WI) Usman Ahmad (Cr! P.13/FL/2L) Tariq Ahmad Shahzad (CrtP.!3i5-Li) petitioner(s) VERSUS The State, etc. (in all cases) - Respondent(s) For the Petitioner(s) Sb. Ijsman Karim-Ud-th1, ASC (iii all caec) Miss Nina Jilant, ASC Mr. Arshad Nazit Mirza, ASC Mirza Mehmood Ahmed, ASC Syed Nayyab Hussain Qerdezi, DAG For the State 1,1ehmoOdutHa5, D.D.(FIA) Mudassar Shah, D.D. (HA) Naveed Aslam, Si. (FIA) For the Complainant Mr. Muhammad Shahid Tasawar, ASC Date of Hearing 21.04.2022 R zhjrAIaJllKhMM1anItJ Petitioners have called in question order dated 26.082021, passed by the Lahore High Court, Lahore, whereby bail was refused to the petitioners (in all petitions) in case FIR No. C-29 dated 26.05.2020, offence under section ii of the Prevention of Electronic Crimes Act, 2016 and sections 295W 298C, 1208, 34, 109 PPC, registered at P.S. FIA, Cyber Crime Reporting Centre, Lahore. CH.SI'- i3I3L 1314-1 .. 1315-L/2021 2 p V / 2. Precise allegation against the petitioners, as per contents of ( FIR registered on the complaint of Muhammad ShakeS, Advocate, is that he received a message on his cell numbers from an unknown number through WhatsApp regarding essay writing and quiz program. Later on contacting with the sender, the complainant was told by the caller about a quiz contest with the name of Sultan ui Qalam and invited the complainant to join link on website, which he shared with him. The link led to another link where certain books were available for downloading including Holy Oman with the name of Tafseer e Sagheer. On reading the book Rohani Khazain, the complainant found blasphemous content. It was also found by him that Holy Quran Thfseer e Sagheer was also carrying desecrated translation and a number of books were banned by Punjab Government. The complainant took snapshots of the material and also took note of the links and then reported the matter to HA. After some enquiry, the FIA team raided the house of the petitioner Rohan and recovered mobile set containing number 03224374750. From the house, printed material, banned books etc were also recovered. It was found by the FIA team that the material and banned books were also shared on an open link to public and anyone could have gone through the link and read those books and material. During investigation, petitioner Rohan admitted that being Nazim Thleem Majils Khuddarn ul Ahmadiya he was responsible for organizing competitions and to upload the content. He disclosed that it was all done under the supervision and assistance of petitioners Tjsman and Hafiz Tariq Ahmad respectively. 3. Learned counsel for the petitioners addressed the Court at length. The main premise of their arguments was that the case is a fake one and the complainant in connivance with HA authorities have planted all the material upon the petitioner Rohan and the other two petitioners have been made scapegoat for the sake of tightening the stranglehold around the necks of the petitioners; and that the complainant has a history of lodging such like complaints or to come forward as witness in similar cases; that the motive behind such conduct of complainant is his utter hatred of the religious beliefs of the petitioners. Learned counsel further contended that mischief of sections 295A, 2958 & 295C of PPC p Cri.sP2323-t. 7314-fl & 1315-t/2021 3 is not attracted to the case of petitioners and if at all, the prosecution at all costs wanted to prosecute the petitioners, a case under section 9 of the Punjab Holy Quran (Printing and Recording) Act, 2011 and under section 5 of the Criminal Law Amendment Act, 1932 had to be registered, punishment whereof is three years and six months respectively. Learned counsel for the petitioners further contended that there is nothing on record which could connect the petitioner Rohan and others with the commission of alleged offence; that the message he allegedly sent through WhatsApp was meant for only the members of the Group and he was not at all disseminating his or his community's religious beliefs; that the complainant has cooked up an altogether fictitious story to rope the petitioners in this case. 4. Learned counsel for the complainant and learned Deputy Attorney General, on the other hand, forcefully opposed the prayer of the petitioners for grant of bail mainly on the ground that charge has already been framed by the trial Court; that there is sufficient forensic material available on record connecting the petitioners with the alleged offence; that there is no denying the fact and not even rebutted by the petitioners' learned counsel that the material and the books shared and recovered from the possession of petitioner Rohan have been banned by the Punjab Government, as is evident from the report of the Mutahida Ulerna Board; that the provisions of the Punjab Holy Quran (Printing and Recording Act), 2011 is not attracted as it is only meant with registered publishers and not ordinary criminals and that it was a willful act on the part of the petitioner Rohan and others to disseminate their religious views, material and banned books containing blasphemous content. 5. Heard the learned counsel for the parties at length and have perused the available record with their assistance. The prosecution case against the petitioners starts from a WhatsApp message allegedly sent by petitioner Rohan from his cell number to the number of the complainant. Learned Deputy Attorney General under instructions of the investigating officers present with record has confirmed that during investigation it was found that petitioner Rohan Abroad used to politically upload proscribed defiled translation of the Holy Quran, Tafseer-e-Sagheer, 4 cti.sP 313-L 314-1 & 1325-L/2021 blasphemous books i.e. Rohani KhazaivZ and others through google drive and also created a google link n Sultan_ul.Qa11" and disseminated it through WhatsApP number, which is registered against his name. The learned Law Officer further stated under instructions that petitioner Usman Ahmad used to provide blasphemous content for online competitions through an email address and the number mentioned in that email is registered against his name; that he also created WhatsApp Group Emergency Maflis that he used to supervise and pass instructions regarding the quiz competitions through WhatsApp and he disseminated "Sultanut-Qalam" and defiled translation of the Holy Quran through WhatsApp. As regards role of petitioner Tariq Ahmad Shahzad, learned Deputy Attorney General, under instructions, states that during investigation it was found that he prepared the quiz questions and papers of proscribed material Sullafl-U- Qalarn and disseminated the same to petitioners Rohan Ahmad and Usman Abroad through his email- So far as the contention of petitioners' counsel that the quiz was meant only for members of the group and not for public circulation and submissions regarding mischief of various legal provisions to the present case are concerned, suffice it to observe that at bait stage we are not meant to dig deep into the evidence or to scrutinize factual aspects of the case, which certainly is the responsibility of the trial court and requires evidence to be adduced from both sides. In case this Court enters into the realm of the trial court during bail stage, it would be disadvantageous for both sides and would certainly prejudice the case of either side. Therefore, We restrain ourselves from commenting on the merits of the case and find that prima facie the prosecution has sufficient material on record to connect the petitioners with the alleged crime and in the circumstances, they are not entitled for grant of bail. 6. For the foregoing, the instant criminal petitions having no merit are dismissed and leave to appeal is refused. 7. At this stage, it has been observed by us that there are certain observations in the impugned order, which have the tendency of 'prejudicing the case of petitioners before the trial Court. Therefore, WC CrLs1313-L 23)4-& 1315 L12021 5 expect that trial of the case shall be conducted and concluded by the trial Court strictly in accordance with law, without being prejudiced/influenced by any observation contained in the impugned order of the learned High Court. ANNOUNCED IN OPEN COURT ON 4 / ci,) oiai_ N4T APPROVED FOR REPORTING /-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Maqbool Baqar Mr. Justice Qazi Muhammad Amin Ahmed Mr. Justice Amin-ud-Din Khan Criminal Petition No.1316 of 2016 (Against the judgment dated 06.10.2016 passed by the Peshawar High Court Peshawar in Crl. A. No.602-P/2013) Rooh Ullah, etc. …Petitioner(s) Versus The State, etc. …Respondent(s) For the Petitioner(s): Mr. Muhammad Ilyas Siddiqi, ASC For the State: Mr. Zahid Yousaf Qureshi, Addl. Advocate General, KP For the Respondent(s): Mr. Talat Mahmood Zaidi, ASC Date of Hearing: 03.01.2022. ORDER Qazi Muhammad Amin Ahmed, J.- Tarifullah, 55/60, and Muhammad Rawail, 20, were shot dead on 11.06.2007 at 5:00 p.m. within the precincts of Police Station Razakhel, District Nowshera, in the backdrop of an ongoing feud over a piece of property; Tariq Azam PW survived the assault to report the incident to the police at 7:25 p.m; the petitioners claimed trial before a learned Addl. Sessions Judge at Nowshera that culminated into their conviction both on the charges of homicide as well as murderous assault vide judgment dated 31.10.2013; they were sentenced to imprisonment for life as well as 5-years rigorous imprisonment, respectively; co-accused Shahid, arrayed through supplementary statement, was, however, acquitted from the charge, maintained by the High Court, vide impugned judgment dated 06.10.2016, vires whereof, are being assailed by the petitioners on the grounds that prosecution case, fraught with contradictions and doubts, merited outright rejection, in the face of an unproved motive. Prosecution’s failure to effect recovery of weapon from Rooh Ullah petitioner yet another predicament faced by the prosecution and, thus, evidence furnished by the injured PW was far from being the whole truth and, thus, was not worthy of implicit reliance, concluded the learned counsel. Contrarily, learned Law Officer assisted by learned counsel for complainant defended the impugned judgment. 2. Heard. Record perused. 3. We have gone through the statements of eye witnesses that include an injured to find them in a comfortable unison both on the salient features of the case as well as matters collateral thereto. No doubt, injuries on the person of a witness are not a passport into the realm of truth, however, the learned counsel has not been able to point out even a single circumstance to suspect testimony of Azam Tariq PW. Incident, a daylight affair, was reported with a remarkable promptitude followed by examination of the injured as well as autopsy, circumstances that cumulatively exclude possibility of consultations or deliberations. Investigating Officer’s failure to recover a weapon from Rooh Ullah does not overshadow the preponderance of prosecution evidence that includes recovery from the principal accused. Bald denials alone do not override the prosecution evidence, rightly relied by the courts below. Petition fails. Leave refused. Judge Judge Judge Islamabad, the 3rd January, 2022 Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Maqbool Baqar Mr. Justice Qazi Muhammad Amin Ahmed Mr. Justice Amin-ud-Din Khan Criminal Petition No.1319-L of 2021 (Against the order dated 5.8.2021 passed by the Lahore High Court Lahore in Crl. Misc. No.450305-B/2021) Shahid Aslam …Petitioner(s) Versus The State …Respondent(s) For the Petitioner(s): Mr. Mazhar Iqbal Sidhu, ASC For the State: Rana Abdul Majid, Addl. Prosecutor General Punjab with Bilal Mehmood Sulehri, ASP and Javed, I.O. For the Complainant: Ch. Abdul Wahid, ASC Mian Ghulam Hussain, AOR Date of Hearing: 05.01.2022. ORDER Qazi Muhammad Amin Ahmed, J.:- Shahid Aslam, petitioner herein, was earlier booked by Green Town police Lahore for issuing a bank cheque in sum of rupees 7 million, bounced upon presentation. It is in this backdrop that he settled the issue by issuing another cheque in favour of the complainant before a learned Judge-in-Chamber of the Lahore High Court Lahore, in consequence whereof, he was admitted to anticipatory bail vide order dated 11.8.2014; the second cheque also failed upon presentation, bringing him back once again behind the bars on 14.6.2021. 2. Chequered successive failures, notwithstanding, the learned counsel contends that the petitioner had cleared up substantial portion of his liability, a position though contested at the bar, nonetheless, confirmed by Bilal Mehmood Sulehri, Assistant Superintendent of Police. 3. Heard. Record perused. 4. Be that as it may, what appears to have weighed with the learned Judge-in-Chamber to deny post arrest bail to the petitioner is his failure to recompense the complainant, a pledge that he made before the Court, in lieu whereof, he was extended extraordinary concession of pre-arrest bail. The arrangement, seemingly under the sword of democles fails to commend our approval, inasmuch as, the Court being a neutral arbiter owed responsibility to none except the law. Parameters for grant of pre- arrest bail, by now, are authoritatively well settled, to be followed faithfully and, thus, there was no space to be allocated to the petitioner to barter his freedom, in derogation thereof; petitioner’s unenviable conduct, notwithstanding, nonetheless, does not alter the above juridical position. Charged with an offence that does not attract the statutory bar, the petitioner is in custody since 14.6.2021, continuation whereof, is not likely to serve any useful purpose preceding final adjudication; as case for his release on bail stands made out. Criminal Petition is converted into appeal and allowed; the petitioner/appellant is admitted to bail on his furnishing bond in the sum of Rs.500,000/- with one surety in the like amount to the satisfaction of the learned trial Court. Judge Judge Judge Islamabad, the 5th January, 2022 Azmat/-