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