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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Maqbool Baqar
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition Nos.1322-L, 1296-L & 1297-L of 2013
(Against judgment dated 30.10.2013 of the Lahore
High
Court,
Lahore
passed
in
Crl.
Apeal
No.934/2010, Revision No.568/2010 with M.R.
No.232/2010)
Muhammad Rafique alias Neela
(in Cr. P. No.1322-L/2013)
Mushtaq Hussain
(in Cr. P. No.1296 & 1297-L/2013)
…Petitioner(s)
Versus
The State
(in Cr. P. No.1322-L/2013)
Muhammad Rafique alias Neela, etc.
(in Cr. P. No.1322-L/2013)
…Respondent(s)
For the Petitioner(s):
Sardar Khuram Latif Khan Khosa, ASC
(in Cr.P. No.1322-L/2013)
For the Complainant:
Mr. Mazhar Ali Ghallu, ASC
(in Cr.P. No.1296 & 1297-L/2013)
For the State:
Mr. Muhammad Jaffar,
Addl. Prosecutor General Punjab.
Date of hearing:
06.03.2020.
JUDGMENT
Qazi Muhammad Amin Ahmed, J.- Muhammad Rafique
alias Neela, Muhammad Naveed and Muhammad Saeed, real brothers
inter se, along with their father Jafar Hussain were indicted for
homicide by the learned Sessions Judge Toba Tek Sindh; they were
accused by Mushtaq Hussain (PW-11) for stabbing Nazim Hussain,
deceased, 30, to death at 10:30 a.m. on 23.10.2009 within the precincts
of Police Station Kamalia District Toba Tek Singh; Jafar Hussain
accused was blamed to have instigated the crime; petitioner is
attributed fatal hatchet blow to the deceased; remainders are assigned
abrasions on the back of left upper arm and below right knee,
respectively measuring 2 x 1 cm and 1 x 1 cm.
Criminal Petition Nos.1322-L, 1296-L & 1297-L of 2013
2
According to the prosecution, on the fateful day, deceased on a
motorbike, was surprised by the accused, in the backdrop of a previous
brawl.
The petitioner was returned a guilty verdict vide judgment dated
8.4.2010; convicted under clause (b) of section 302 of the Pakistan
Penal Code, 1860 and sentenced to death whereas Muhammad Naveed
and Muhammad Saeed, co-accused to imprisonment for life for being in
the community of intention; Jafar Hussain was acquitted from the
charge. The High Court maintained petitioner’s conviction albeit with
alteration of death penalty into imprisonment for life while acquitting
Muhammad Naveed and Muhammad Saeed from the charge vide
impugned judgment dated 30.10.2013, vires whereof, are being assailed
both by the complainant as well as the convict. Issues being inter
linked, the captioned petitions are being decided through this single
judgment.
2.
Learned counsel for the petitioner/convict contends that
after acquittal of three out of four accused, each assigned a distinct
role, there was no occasion for the High Court to rely upon the same
discredited evidence qua the petitioner to maintain his conviction.
Learned counsel for the complainant, contrarily, not only prayed for
reversal of death penalty but also acquittal recorded qua the co-accused
on the ground that there was no occasion for the High Court, after it
had believed the witnesses, to acquit the respondents assigned a role
confirmed by medical evidence merely on a conjectural premise.
Learned Law Officer wholeheartedly agreed with the conclusions drawn
by the High Court.
3.
Heard. Record perused.
4.
Petitioner is assigned fatal blow. According to the autopsy
report, conducted at 2:30 p.m. same day, it is an incised wound of quite
an extensive nature, penetrating into brain cavity; it is consistent with
hatchet P-3, found stained with blood, forensically opined that of
human origin, recovered pursuant his disclosure on 6.11.2009.
Infliction of the fatal blow at petitioner’s hand has unanimously been
confirmed by the witnesses; occurrence being a broad daylight affair on
a thoroughfare within the vicinity of inhabitation, inculpatory
investigative conclusions, being in line therewith, have not been found
by us as open to any legitimate exception. Jafar Hussain, real father of
the accused, is saddled with instigation; he has rightly been acquitted
Criminal Petition Nos.1322-L, 1296-L & 1297-L of 2013
3
by the trial Court; whereas triviality of abrasions, swayed on the High
Court to exercise caution qua Muhammad Naveed and Muhammad
Saeed is an equally expedient choice. Doctrine of abundant caution is a
silver lining in our jurisprudence to ensure safe administration of
criminal justice and application thereof does not necessarily imply
destruction of entire volume of evidence, if otherwise found sufficient to
sustain the centrality of the charge. Though, the Medical Officer has not
been cross-examined during the trial, nonetheless, upon analysis,
abrasions came about during the occurrence, admit possibilities,
exculpatory in nature. The High Court has been well within remit to let
off the respondents; wage settled is conscionable in circumstances.
Scales are in balance. Petitions fail. Leave declined.
Judge
Judge
Lahore, the
6th March, 2020
Not approved for reporting
Azmat/-
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE UMAR ATA BANDIAL
MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND
CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017
(On appeal against the judgment dated 08.11.2016 passed by the Lahore High Court,
Bahawalpur Bench in Criminal Appeal Nos. 470 & 471 of 2013 and Murder Reference
No. 51 of 2013)
Bashir Ahmed and Munir Ahmed
(In
Cr.P.
1371/2016
&
Cr.M.A. 1704/2017)
Muhammad Ilyas
(In Cr.P. 1651-L/2016)
… Petitioners/Applicants
VERSUS
The State
(In
Cr.P.
1371/2016
&
Cr.M.A. 1704/2017)
Munir Ahmed
(In Cr.P. 1651-L/2016)
… Respondents
For the Petitioner:
Syed Asim Ali Bukhari, ASC
(In Cr.P. 1371/2016 & Cr.M.A. 1704/2017)
Ch. Ghulam Murtaza Khan, ASC
(In Cr.P. 1651-L/2016)
For the State:
Mirza Abid Majeed, DPG, Punjab
Date of Hearing:
26.11.2020
JUDGMENT
SAYYED
MAZAHAR
ALI
AKBAR
NAQVI,
J.-
Through
this
consolidated judgment, we intend to decide Cr. Petition No. 1371/16
filed by the petitioners/convicts against their conviction, Cr. Misc.
Application No. 1704/17 for suspension of sentence and Cr. Petition
No. 1651-L/16 filed by the complainant for enhancement of sentence
awarded to the petitioner Munir Ahmed.
2.
Munir Ahmad and Bashir @ Shada along with three
others were tried in the case registered vide FIR No. 143/2011 dated
05.08.2011 under Sections 302, 324, 337-F(vi), 337-L(ii), 34/149 PPC
at Police Station Marot, District Bahawalnagar for committing murder
of Muhammad Ishaq, brother of the complainant, and for causing
CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND
CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017
2
injuries to complainant Muhammad Ilyas (PW-4) and Muhammad
Shahid (PW-5).
3.
Brief facts as disclosed in the FIR are that the
complainant was owner of land measuring 35 acres, which was under
his cultivation. At the night preceding the occurrence, it was turn of the
complainant to avail waters for his lands. At about 8.00 a.m, the level
of the water decreased upon which the complainant along with
Muhammad Shahid visited their watercourse and found that close to
the lands belonging to Abdul Majeed Kamboh, a cut was made and the
water was being stolen by the accused Munir, Naseer, Bashir @
Shada, Asif and Rashid and the same was breached for their own
lands. When they were estopped to commit water theft, it infuriated the
accused persons namely Bashir @ Shada who inflicted injuries on the
person of the complainant and Muhammad Shahid with handle of the
hatchet and did not allow them to have access to the watercourse. On
the same day at 11.30 a.m another attempt was made by the
complainant party to have access to the watercourse. Soon they
reached near the lands of Abdul Majeed Kamboh, the deceased
Muhammad Ishaq tried to repair the breach to continue with their
share of water. Meanwhile in their presence, Bashir @ Shada raised
lalkara to Munir accused to fire at Ishaq, upon which said Munir made
straight fire with his rifle at Muhammad Ishaq, which hit on the right
side of his neck. Due to the infliction of injury, he fell down. Thereafter
co-accused Naseer and Bashir @ Shada made straight fires at the
complainant and Shahid but they saved their lives by lying on the
ground. The injured was being taken to hospital, however, Ishaq
succumbed to the injuries on his way.
4.
During the course of investigation carried out by the local
police, the petitioners along with three others were found involved and
as such their names were placed in coloumn No. 3 of the report
submitted under Section 173 Cr.P.C., which was submitted to the
Illaqa Magistrate and the same was en-routed to the learned Sessions
Judge under Section 190(2) Cr.P.C. The learned Trial Court after taking
cognizance of the offences framed charge vide order dated 03.02.2012.
After completion of the trial, the learned Trial Court vide judgment
dated 30.11.2013 convicted Munir Ahmed under Section 302(b) PPC
and he was sentenced to death. He was also directed to pay
CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND
CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017
3
Rs.300,000/- as compensation to the legal heirs of deceased
Muhammad Ishaq as required under Section 544-A Cr.P.C. In case of
default, it had to be realized as arrears of land revenue or in case of
non-realization of said amount, he was to further undergo six months
SI. Bashir @ Shada was convicted by the Trial Court under Section
337-F(vi) PPC for causing injury on left hand of complainant, and was
held liable to pay Rs.30,000/- as Daman to the victim Muhammad
Ilyas (complainant). He was also convicted under Section 337-L(ii) for
causing injury on the back side of chest of the complainant
Muhammad Ilyas and was held liable to pay Rs.10,000/- as Daman to
him. He was also convicted under Section 337-L(ii) PPC for causing
injury on left forearm of Shahid and was held liable to pay
Rs.10,000/- as Daman to him. Petitioner Bashir was directed to pay
Daman to the victim or in case of failure, he was directed to be kept in
jail and dealt within the same manners as if sentenced to simple
imprisonment until amount of Daman was paid. However, the learned
Trial Court acquitted the co-accused namely (i) Naseer Ahmed, (ii)
Rashid and (iii) Muhammad Asif of the charge while extending them
benefit of doubt.
5.
Cr. Appeal Nos. 470, 471/13 were preferred by the
appellants before the Lahore High Court (Bahawalpur Bench), calling
in question the judgment of the learned Trial Court dated 30.11.2013.
The learned Trial Court sent Murder Reference under Section 374
Cr.P.C to High Court. Both Cr. Appeals and Murder Reference No.
51/13 were heard by a Division Bench of the High Court and vide
judgment dated 08.11.2016, conviction recorded against both the
appellants Munir Ahmed and Bashir Ahmed @ Shada was ordered to
be upheld with alteration of sentence of death awarded to Munir
Ahmed into imprisonment for life. Both the appellants were extended
benefit of Section 382-B Cr.P.C.
6.
Cr. Petition No. 1371/16 was filed before this Court
challenging the legality of the judgments passed by the courts below
dated 30.11.2013 and 08.11.2016 mainly on the ground that
conviction and sentence recorded by both the courts is not sustainable
in the eyes of law. During the course of proceedings before this Court,
a query was made to the learned counsel for the petitioners qua the
legality of sentence and conviction recorded by the Trial Court, which
CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND
CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017
4
was maintained by the High Court, keeping in view the sentence
inflicted to Munir Ahmed under Section 302(b) PPC and sentence
inflicted to Bashir @ Shada under Section 337-F(vi), 337-L(ii) and 337-
L(iii) PPC while ignoring this aspect of the case that the act of both
petitioners was committed in furtherance of their common intention,
especially when there was no such finding, which could be made basis
that the element of common intention or common object was not
established. The question whether in absence of any such finding, the
aforesaid conviction and sentence recorded by the courts below was
justified in law, (ii) whether when Munir is convicted under Section
302(b) PPC whereas Bashir @ Shada is convicted according to his
individual role, both the sentences in all eventuality are in consonance
with the spirit of Section 302/324/34 PPC (common intention) or if the
number of accused are five or more under Section 302/148/149 PPC
(common object), hence these were the moot points for consideration in
this case. Learned counsel appearing for the parties have not
controverted the query made by the Court and categorically stated that
both the learned courts below had erred in law and have not decided
the same in its true perspective according to the intent of the law.
7.
We have noticed on various occasions while dealing with
the judgments of the courts below, agitated before us that the
aforesaid legal requirements are being ignored by the courts while
handing down judgments in murder cases. As this anomaly has arisen
which is in violation of the intent of the law, therefore, we deem it
necessary and in the fitness of things to resolve this legal issue while
delivering an exhaustive/elaborative judgment for the future guidance.
Perusal of the record in the instant case reflects that the learned Trial
Court framed charge in the case on 03.02.2012 in the following terms:-
“CHARGE SHEET
I, Muhammad Anwar Butt, Additional Sessions Judge,
Bahawalnagar hereby charge you:-
1.
Muhammad Asif son of Shaukat Ali, aged 19
years;
2.
Rashid son of Nazir Ahmad, aged 20 years;
Both Sukhera by caste
3.
Munir Ahmad son of Nazir Ahmad, aged 44
years;
4.
Bashir Ahmad son of Nazir Ahmad, aged 44
years;
5.
Naseer Ahmad son of Nazir Ahmad, aged 42
years;
CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND
CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017
5
All Jat by caste, residents of Chak No. 298/HR
Tehsil Fortabbas District Bahawalnagar.
as under:-
FIRST:
That on 05.08.2011 at 8.00 am in the area of Chak
No. 297/HR Tehsil Fortabbas District Bahawalnagar you all
the above named accused persons in prosecution of your
common
object
caused
injuries
to
Muhammad
Ilyas
complainant and Muhammad Shahid PW which were
declared as Jurh Ghayr Jaifah Munaqillah and other hurts
and thus you have committed an offence punishable u/s 337-
F(v)/337-L(ii) read with Section 149 PPC which is within the
cognizance of this court.
SECONDLY:
That on the same day and place at 11.30 am you
Muhammad Munir, Naseer Ahmad and Muhammad Bashir
while armed with fire arm weapons in furtherance of your
common intention caused fire arm injuries on the person of
Muhammad Ishaque brother of the complainant, as a result of
which he died at the spot and thus you have committed an
offence punishable u/s 302 read with Section 34 PPC which
is within the cognizance of this Court.
And I hereby direct that you all be tried by this Court
for the above charges.”
8.
In response to the charge, the accused persons facing trial
denied it in toto, hence claimed trial. The prosecution evidence was
summoned by the court, which was recorded while providing ample
opportunity of cross-examination. The legal attributes of “due process”
were fully adhered to during proceedings before the trial court. The
learned ADPP vide statement dated 21.11.2013 closed the prosecution
evidence while giving up PWs Ahmed Raza, Shahid Imran, Mehmood
ul Hassan and Liaqat Ali being unnecessary. He tendered in evidence
report of Chemical Examiner as Ex.PQ, report of Serologist as Ex.PQ/1
and report of Forensic Science Agency as Ex.PR. On the conclusion of
the prosecution case the statements of the accused persons were
recorded under Section 342 Cr.P.C. In response to question ‘why this
case against you’ they categorically denied the allegations leveled by
the prosecution but did not opt to lead defence evidence. The learned
Trial Court after conclusion of the proceedings before it, acquitted three
co-accused, while conviction was recorded against petitioners Munir
under Section 302 (b) PPC and Bashir @ Shada under Sections 337-
F(vi) &337-L(ii) PPC as narrated above. This judgment was upheld by
the High Court. For the elaborative analysis qua the application of
CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND
CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017
6
provision of Section 302 PPC, it would be advantageous to reproduce
Section 300 PPC wherein ‘qatl-e-amd’, has been defined as under:-
Qatl-e-Amd: Whoever, with the intention of causing death or
with the intention of causing bodily injury to a person, by
doing an act which in the ordinary course of nature is likely
to cause death, or with-the knowledge that his act is so
imminently dangerous that it must in all probability cause
death, causes the death of such person, is said to commit
qatl-e-amd.
It would also be in “fitness of things” to reproduce Section 302 PPC,
which reads as under:-
“302. Punishment of qatl-i-amd : Whoever commits qatl-e-
amd shall, subject to the provisions of this Chapter be:
(a)
punished with death as qisas;
(b)
punished with death or imprisonment for life as ta'zir
having regard to the facts and circumstances of the
case, if the proof in either of the forms specified in
Section 304 is not available; or
(c)
punished with imprisonment of either description for a
term which may extend to twenty-five years, where
according to the Injunctions of Islam the punishment of
qisas is not applicable.
Provided that nothing in clause (c) shall apply where the
principle of fasad-fil-arz is attracted and in such cases only
clause (a) or clause (b) shall apply.”
9.
The provision of Section 302 PPC provides punishment for
the commission of qatl-e-amd. The punishment of qatl-e-amd has been
categorized under the heads “(a), (b), (c)”. The provision of Section
302(a) PPC is reflection of punishment as provided in Islamic system
by way of qisas. The word ‘qisas’ means return of evil for evil and it
also denotes retaliation. Another word ‘retribution’ is also synonymous
which means a punishment inflicted in return for the wrong and thus
distinctively stresses the operation of the strict justice by administering
merited punishment. The application of Section 302(a) PPC provides the
return in the same coin persuading the offender to be done to death in
the same manner he committed death of the fellow person. However,
there are certain legal requirements for application of Section 302(a)
PPC. Section 299 (k) PPC defines qisas in the following terms:-
"qisas" means punishment by causing similar hurt at the
same part of the body of the convict as he has caused to the
CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND
CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017
7
victim or by causing his death if he has committed qatl-iamd
in exercise Of the right of the victim or a wali',
The Legislature has specifically laid down that the initiation of
proceedings under Section 302(a) PPC is subject to qualifying
prerequisites as laid down in Section 304 PPC. The same reads
as under:-
“304. Proof of qatl-i-amd liable to qisas, etc.: (1) Proof of
qatl-i-amd shall be in any of the following forms, namely: -
(a)
the accused makes before a Court competent to
try the offence a voluntary and true confession
of the commission of the offence; or
(b)
by the evidence as provided in Article 17 of the
Qanun-e-Shalladat, 1984 (P.O. No. 10 of 1984).
(2)
The provisions of sub-section (1) shall, mutatis,
mutandis, apply to a hurt liable to qisas.
Bare perusal of the aforesaid provision broadly emphasis two fold
conditions, (i) voluntary and true confession regarding the
commission of the offence, (ii) qualifying the postulates of Article 17
of the Qanun-e-Shahadat Order, 1984. Article 17 of the Qanun-e-
Shahadat Order, 1984, further emphasis the competence of a person
qualifying it to be a truthful witness as required in accordance with
the injunctions of Islam as laid down in Holy Quran and Sunnah.
The primary/foremost qualification for a person to appear as a
truthful witness in a case falling under ‘qisas’ is that he must fulfill
the condition of tazkiya-tul-shahood. In ordinary meanings, it is an
accepted rule of tazkiya-tul-shahood, that the credibility of the
witness shall be examined through credible person of the same walk
of life to which the witness belongs. Tazkiya-tul-shahood also
entails an open and confidential inquiry regarding the conduct of the
witness to ascertain whether the witness is credible or otherwise.
The word ‘from the same walk of life’ is most essential attribute
regarding this aspect. However, there are two modes provided to
evaluate tazkiya-tul-shahood, (i) open, (ii) confidential. To ascertain
the credibility of a witness on the touchstone of tazkiya-tul-shahood,
the Judge is under obligation to inquire the credentials of the
witness proposed to testify during the court proceedings to adjudge
his truthfulness. Likewise, he can also adopt the way of secret
CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND
CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017
8
inquiry to further satisfy his conscience about the credibility of the
witness for that he can delegate/appoint someone else to ascertain
the truthfulness of the person claiming acquaintance with the facts
and circumstances of the case. There is no constraint that with the
changing
situation
in
the
advanced
era,
the
modern
devices/technical assistance can also be utilized to persuade the
piousness of the witness to arrive at a conclusion which endorses
the believability qua the character of the witness by the Presiding
Officer.
10.
Section 302(b) PPC was made part of Section 302
PPC by the Legislature, which equates provision of Section 302(a)
PPC regarding the infliction of sentence of death. In-fact there are
two sentences provided under the head 302(b) i.e. death or
imprisonment for life as Tazir. There is marked distinction qua
consideration and application of sentence which is also based
upon other considerations. The parameters are entirely on
different benchmark wherein strict compliance of Section 304
PPC or applicability of Article 17 of the Qanun-e-Shahadat Order
is not required. Likewise, the mode and manner of ascertaining
the guilt and execution of the sentence is altogether different. The
intention behind this was in-fact to meet the requirements of law
and order situation prevailing in the society with an intent not to
let any crime unattended/un-addressed and further not to let
any criminal escape from the clutches of law. The insertion of the
word ‘tazir’ under the head 302(b) PPC has a specific
significance. The word ‘tazir’ is defined in Section 299(l) as
under:-
"299(l)
ta'zir" means punishment other than qisas,
diyat, arsh, or daman”
The literal meaning of word ‘tazir’ is chastisement. Undeniably
the word ‘tazir’ means punishment inflicted by the Court other
than ‘qisas’. As the punishment of ‘tazir’ is not prescribed by the
Holy Quran or Sunnah, therefore, it cannot be as stern and
stringent
as
that
of
qisas.
It
includes
punishment
of
imprisonment, forfeiture of property and fine. A discretion has
been left with the court assigned with the matter to decide and
CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND
CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017
9
inflict either of the punishments commensurating with the overt
act as surfaced according to facts and circumstances of the case.
The Court of competent jurisdiction is fully justified to award
sentence subject to assigning justiciable reasons to meet the
ends of justice. The offence under Section 302(b) PPC is
otherwise made compoundable by the application of Section
345(2) Cr.P.C, which in addition further qualifies that if all the
legal heirs have compounded the offence, the Court is
empowered to ensure that the parties may have buried the
hatchets once for all.
11.
Provision of Section 302(c) PPC is somewhat similar
to the erstwhile Section 304 PPC. The provision of Section 302(c)
in the original text was an exception of Section 302 PPC while
following the requirements of erstwhile Section 304 PPC. This
provision covers all those offences which were committed
resulting into culpable homicide not amounting to murder and as
such cannot be equated with the requirements for application of
sentences as provided under Section 302(a)(b) PPC. Any
occurrence though resulted into an act of homicide but it was
committed without element of mens rea, pre-meditation or ill
design, would squarely attract the provision of Section 302(c)
PPC. The framers of the law while inserting the said provision
provided sentence of imprisonment which may extend to 25
years. The sentence of 25 years is clothed with discretionary
powers of the court contrary to sentences provided under Section
302(a)(b) PPC. Broadly speaking this distinction qua the
discretionary power to inflict sentence is based upon the fact that
the law makers were conscious of the situations like free fight,
case of two versions, undisclosed story, sudden affair, question
of ghairat, absence of mens rea, self defence and cases initiated
due to the element of sudden provocation. In ordinary speech, the
meaning of ‘provocation’ is said to be incitement to anger or
irritation. In English law it has a meaning based on anger but it is a
word used to denote much more than ordinary anger. To extenuate
the killing of a human being provocation has always needed to be of
a special significance. Throughout in the proceedings of the cases it
is seen to be something which incites immediate anger or "passion",
CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND
CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017
10
which overcomes a person's self-control to such an extent as to
overpower or swamp his reason. In other words provocation is when
a person is considered to have committed a criminal act partly
because of a preceding set of events that might cause a reasonable
person to lose self control. Analyzing the concept of 'provocation in
law under the Common Law of England, Lord Devlin, delivering the
judgment of the Judicial Committee of the Privy council in Lee Chun-
Chuen v. The Queen (1963 1 All ER 73) held as under:-
"Provocation in law consists mainly of three elements
the act of provocation, the loss of self-control, both
actual and reasonable, and the retaliation proportionate
to the provocation."
So, it can be said that there are mainly four elements which
need to be established to avail the defence of provocation i.e. (i)
the provoking circumstances, (ii) the accused’s loss of self-
control resulting from the provoking circumstances, whether
reasonable or not; (iii) whether the provocation could have
caused the ordinary person to lose self-control, (iv) the
retaliation was proportionate to the provocation. Whether the
accused’s loss of self-control was a result of the provoking
circumstances is a subjective test. To prove the element of
provocation, there are two more conditions i.e. (i) it should be
prompt, and (ii) it was retaliated without inordinate delay. We
have also noticed that apart from the circumstances narrated
above inviting application of Section 302(c) PPC another situation
has now erupted in the society having direct nexus with such
like situations, i.e. a deliberate and malicious act intended to
outrage religious feelings of any class of people by insulting its
religion or religious rituals by use of derogatory remarks, which
further extend the scope of cases falling under the ambit of
sudden provocation.
12.
In United Kingdom almost in similar situation, the
framers of the law enacted an Act called “Homicide Act, 1957” in
which they have dealt with such like situation under the
‘dictum,’ ‘diminished liability’. To evaluate such like situation,
the mental faculty of the offender was to be gauged according to
prevailing circumstances in which the offence was committed
CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND
CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017
11
and as such it was given precedence over the already existing
liability regarding culpable homicide amounting to murder. While
drawing analogy from the said legislation, it can be safely
assumed that the provisions of Section 302(c) PPC can also be
equated/adjudged keeping in view the state of mind of the
offender, his surrounding circumstances and the mode of
commission of the offence. If those are adjudged conjointly, it
would certainly imprint a better picture before the court of law to
adjudicate the matter, which might commensurate with the
allegation.
13.
A careful analysis of the aforesaid categories falling
under the provision of Section 302 PPC abundantly makes it
clear that the provision of Section 302(a) PPC is a distinct
provision having different mode and manner of application with
different considerations exclusively derived from the Islamic
judicial system. The proceeding under the aforesaid provision is
a rare phenomenon whereas the majority of the cases dealt with
by the courts below fall under Section 302(b) PPC. As stated
above, provision of Section 302(b) PPC provides two sentences
i.e. death, (ii) imprisonment for life. Murder cases exclusively
falling within the ambit of Section 302(b) PPC would be dealt
with in a manner exclusively depending upon the number of
assailants. Undeniably a single assailant can commit the
aforesaid offence but if the number of assailants is more than
one and the offence is committed in furtherance of common
intention then the provision of Section 34 PPC would certainly
attract. Similar to that if the tally of the accused is five or more
and the offence is committed in furtherance of common object
then the provision of Sections148/149 PPC would be applicable.
The learned Trial Court seized of the matter depending upon the
number of accused has to render a definite finding qua the
applicability of Section 34 PPC (common intention) or Sections
148/149 PPC (common object). These two legal aspects are to be
addressed with the application of the aforesaid provision of
Section 302(b) PPC depending upon the number of assailants. It
is bounden duty of the courts below to ascertain the aspect of
common intention or common object primarily at the time of
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CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017
12
framing of the charge on the basis of contents of FIR, statements
under Sections 161 & 164 Cr.P.C, if any, final report under
Section 173 Cr.P.C and other attending documents collected by
the Investigating Officer during investigation. The Trial Court is
equally responsible to give a definite finding qua the applicability
of Section 34 PPC or Sections 148/149 PPC at the time of
conclusion of the trial while handing down the judgment. Now
adverting to the moot point which was raised during the
proceedings that if anybody is found guilty of commission of
offence attracting the provision of Section 302(b) PPC, the co-
accused can be saddled with the responsibility on the basis of
individual liability or the whole occurrence has to be decided
keeping in view that the offence was committed in furtherance of
their common intention and the provision of Section 302(b) PPC
would be applied conjointly against the persons joining hands
falling under either of the categories i.e. common intention or
common object falling under Section 34 or 148/149 PPC
depending upon the number of persons facing charge. We may
observe that any judgment which concludes the commission of
offence falling under Section 302(b) PPC in furtherance of
common intention or common object but decides the lis on the
basis of individual liability would be squarely in defiance of the
intent and spirit of law on the subject.
14.
Section 302(c) PPC is an exception to the aforesaid
provision under which in presence of a clear finding that the
offence committed was not in furtherance of common intention or
common object, however, the court otherwise comes to the
conclusion that the prosecution has proved its case to the hilt
against the accused, the Court is under legal obligation to record
conviction and sentence according to the role of every assailant
constituting a criminal act according to overt act ascribed to him.
The framers of the law while inserting Section 302(c) PPC wisely
provided sentence which might extend to 25 years. It was done
with an intent to provide an opportunity to the court of law to
inflict sentence proportionate to the act of the assailant according
to the facts surfaced during the course of proceeding. It is not out
of context to highlight that the Trial Court prior to proceeding with
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13
the matter as stated above has to render a definite finding qua
the fact that the incident is not result of common intention or
common object which has a substantial importance to attract the
aforesaid provision. Any slackness on the part of the court to
ignore this aspect might infringe the rights of either of the parties
involved in the process of law which is an essential attribute of
court proceedings, denial of which might create imbalance,
resulting into chaos in the society. The concept of safe
administration of criminal justice and maintaining equilibrium
qua the protection of legal rights is attire of the judicial system.
Any defiance to the said balance might frustrate the confidence
of the public which has to be at the highest pith in a civilized
society. The courts of law can gain the confidence by imparting
fair, equitable and justiciable dispensation of justice eliminating
any possibility of discrimination on the basis of gender, race,
religion, colour, caste, creed, status and language etc. The
Judges have to discharge this arduous task with utmost care
and caution so that public confidence in judicial process is not
shattered.
15.
For what has been discussed above, we are inclined
to issue following guidelines to the courts below to follow in
future:
i)
that the Trial Court seized with the criminal trial is
squarely required to adhere to the provision of
Sections 265-C, 265-D Cr.P.C for the purpose of
initiation of trial, before framing of charge as
ordained to meet the spirit of the law of the land;
ii)
that the Trial Court is under obligation to fulfill the
requirement as stated above, thereafter to frame
charge, while minutely looking into the contents of
the crime report, statement of the prosecution
witnesses under Section 161 Cr.P.C, report under
Section
173
Cr.P.C
and
all
other
documents
appended with the challan with an intent to evaluate
whether the criminal act as disclosed has been
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14
committed in furtherance of joining hands, which
attracts the ingredients of common intention (Section
34 PPC) or common object (Section 148/149 PPC read
with the substantive offence), if so, the charge would
be framed accordingly;
iii)
that the Trial Court after recording of evidence,
statement of the accused under Section 342 Cr.P.C
would provide an opportunity to the accused to lead
defence, if any, and further to appear under Section
340(2) Cr.P.C (if he intends to appear) & defence
evidence, if any, thereafter, it is obligatory for the
courts to give judgment with definite finding qua the
element of common intention or common object with
reference to the substantive offence;
iv)
that the Court proceeding with the matter, if reaches
to the conclusion that the offence committed is an
individual liability then the provision of Section
302(c) PPC would be squarely applicable and each
accused would be dealt with according to the gravity
of allegation, if any?
Note: The Trial Court while rendering such finding has to
disclose judicial reasoning.
16.
As far as the matter before us is concerned,
elaborate
findings
are
clearly
disclosed
above.
As
a
consequence, we convert Criminal Petition Nos. 1371 & 1651-
L/2016 into appeals, allow them, set aside the impugned
judgments of both courts below while remanding the matter to
the Trial Court for a limited purpose to re-write the judgment on
the basis of existing judicial record within two months strictly in
accordance with law and the guidelines given above. A copy of
this judgment shall also be sent to the Registrars of all High
Courts for its onward circulation to the Hon’ble Judges for future
guidance.
CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND
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15
17.
Since, the main petition filed by the petitioners-
convicts has been converted into appeal, allowed and remanded,
Criminal Miscellaneous Application No. 1704 of 2017 for
suspension of sentence has become infructuous and is disposed
of accordingly.
JUDGE
JUDGE
I am not in agreement with the findings of
my learned brother for which I have
recorded my own findings separately.
JUDGE
Islamabad, the
26th of November, 2020
Approved For Reporting
Khurram
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16
MAZHAR ALAM KHAN MIANKHEL, J-. I have the privilege to
go through the judgment authored by my learned brother
Sayyed Mazahar Ali Akbar Naqvi, J. The facts, circumstances,
material and evidence, available on the record, do not appeal
me to concur with the opinion given by my learned brother.
Repetition of some facts would be necessary to express my
mind.
2.
As per the FIR, the incidence, before us,
comprised of two episodes. The complainant Muhammad
Ilyas (PW.4) and Muhammad Shahid (PW.5), on 05.08.2011 at
8:00 a.m. present in their fields to irrigate their lands on their
notified time and turn, when noticed reduction in the flow of
water, went on to check the same. They noticed a diversion of
water to their own lands by Munir Ahmad etc. (all five in
number, named in the FIR). When they were asked to remove
the diversion and allow them to irrigate their lands. This
interruption made them furious and the petitioner Bashir
Ahmed alias Shada gave them blows with handle of a hatchet
and stopped them to remove the breach and caused them
injuries.
The second episode of the occurrence was at 11:30 a.m.,
the same day, when Muhammad Ishaq (deceased) going
ahead
of
complainant
Muhammad
Ilyas
(PW.4)
and
Muhammad Shahid (PW.5), his cousin, (both injured PWs), to
mend the breach and to re-divert the water to their lands,
whereupon, Munir Ahmed petitioner, armed with rifle, Naseer
Ahmad and petitioner Bashir Ahmed alias Shada, both
possessing firearm, present on the roof top of their ‘Dera’
confronted them from their ‘Dera’. Munir Ahmed fired a
straight shot at Muhammad Ishaq (deceased), hitting him on
the right side of the clavicle whereas the witnesses escaped
the straight fire shots by Naseer Ahmad and Bashir Ahmed
alias Shada co-accused. The complainant (PW.4) was
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17
medically examined. The medical officer found two bruises
and one swelling on his person with a fracture of metacarpal
bone. Muhammad Shahid (PW.5) was noted with a swelling
with no bone lesion whereas the solitary fire shot attributed
to the petitioner Munir Ahmed proved fatal to Muhammad
Ishaq (deceased).
3.
The learned trial Judge, after conclusion of the
trial acquitted the accused Bashir Ahmed alias Shada and
Naseer Ahmad from the charge of murder leveled against both
of them by holding that no case of common intention or
common object against them was made out and recorded
conviction of Munir Ahmad, petitioner only, for the murder of
Muhammad Ishaque and sentenced him to death. Whereas
Bashir Ahmed alias Shada was convicted and sentenced for
causing injuries to both the PWs, Muhammad Ilyas (PW-4)
and Muhammad Shahid, (PW-5). Rest of the three accused
Naseer Ahmad, Asif and Rashid were given clean chit of
acquittal. The acquittal of the above named accused and
acquittal of the two from the charge of murder for want of
proof of common intention or common object was neither
challenged by way of appeal by the State or the complainant.
Even any appeal for enhancement of sentence of Bashir
Ahmed alias Shada, petitioner, was also not filed. This aspect
of the case reflects that State and complainant party was fully
satisfied with the judgment of the trial court.
4.
The High Court, on appeal, maintained the
conviction of Munir Ahmed for the murder of Muhammad
Ishaque, however, altered his sentence of death into
imprisonment for life whereas the conviction and sentence of
petitioner Bashir Ahmed alias Shada for causing injuries to
PWs was maintained.
5.
Both the convicts filed the instant petition for
leave to appeal against their convictions. We had heard the
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18
learned counsel for the petitioners as well as the learned
D.P.G. Punjab for the State assisted by the learned counsel
for the complainant and had gone through the available
record.
The perusal of the judgment handed down by my
learned brother reflects that the fate of the convicts, on the
available evidence, has not been decided and the matter has
been remitted back to the trial Court by setting aside the judgments
and the convictions and sentences recorded by the trial Court and the
High Court. So, I would also not like to express my mind regarding fate
of the case and would try to confine myself to see as to
whether remand of the case, in the given circumstances, is
justified or not. It is worth to be noted that there were five accused in
all, three of whom were acquitted (specially the accused Naseer Ahmad
with the similar role of firing) by the trial Court and the present
two petitioners were convicted. There was no appeal, as
stated above, against the acquittal of the three accused and
as such, the same has attained finality, which at present,
cannot be called in question. The criminal jurisprudence so far
established is that presumption of innocence is significantly
added to the acquittal. The scope of interference with such
presumption is very narrow specially when it has attained
finality as in the present case. The complainant has only filed
a criminal petition for leave to appeal (Crl.P.L.A. No.1651-L/2016)
against alteration of sentence of Munir Ahmad from death to life
imprisonment by the court of appeal and sought restoration
of sentence of death awarded by the trial court. This judgment of
remittance, as noted above, would be only to the extent of
present petitioners. The perusal of the record would establish the fact
that role of both the convicts qua the murder and the injuries to
the PWs. is quite independent. The remand of the case of
present two petitioners/convicts itself would be against the
norms of justice when three other accused, specifically the
accused Naseer Ahmad, with the similar role of firing on PWs
CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND
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19
as attributed to Bashir Ahmed alias Shada, have been
acquitted. The remand of the case has been ordered for
considering the case of the petitioners on the touchstone of
the common intention/common object of the accused party at
the time of commission of the offence.
6.
The purpose and application of the provisions of
Sections 34 and 149 P.P.C., no doubt, has aptly been
explained by my learned brother, which, with due respect, at
the most can be considered as an academic discussion but as
far as the material and evidence available before this Court is
concerned, that does not attract the provisions of Section 34
P.P.C. For ready reference Sections 34 and 149 P.P.C. are
reproduced herein below:-
“34.
Acts done by several persons in furtherance of
common intention.- When a criminal act is done by several
persons, in furtherance of the common intention of all, each of
such persons is liable for that act in the same manner as if it
were done by him alone.
149.
Every member of unlawful assembly guilty of offence
committed in prosecution of common object.- If an offence is
committed by any member of an unlawful assembly in
prosecution of the common object of that assembly, or such as
the members of that assembly knew to be likely to be committed
in prosecution of that object, every person who, at the time of the
committing of that offence, is a member of the same assembly, is
guilty of that offence.”
A look at the above quoted provisions of law makes it clear
that if a criminal act is done by the several persons in
furtherance of their common intention or the offence is
committed by any member of an unlawful assembly in
prosecution of the common object of that unlawful assembly,
then in that case each of such person or any of the member of
such assembly would be liable for the commission of criminal
act or guilty of that offence. The alleged criminal act should
be in furtherance of common intention and not the common
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20
intention simpliciter. Mere presence of an accused with an
accused who commits the crime would not constitute his
common intention unless there is an evidence referring to the
criminal act of that accused committed in furtherance of
common intention with the other accused. The role of firing
(criminal act) though was attributed to Naseer Ahmad and
Bashir Ahmed alias Shada (one of the petitioner before us)
but the trial Court not only acquitted both the said accused
but also held that there was no evidence of common
intention. This finding of trial Court has also attained finality.
There becomes no legal or moral justification for remand of
the case of one of them on matter which has already been
decided and attained finality.
7.
After perusal of the entire evidence, the factum of
common intention under the provisions of Section 34 P.P.C. is
not made out. In both of the episodes of the occurrence, it
appears to be the individual acts of each accused which took
place at the spur of the moment in a reaction of complainant
party’s request for mending the breach of water channel.
Causing of injuries to the PWs and the murder of Muhammad
Ishaque took place in two separate and independent episodes.
In the first episode, the other accused did not commit any
criminal act with their common intention and they did not
cause any injury to PW.4 and PW.5, who, being empty
handed, were at their mercy. No such overt act falling in the
definition of criminal act was even attributed to them in the
F.I.R. Similarly, single fire shot has been attributed to Munir
Ahmed convict at the person of Muhammad Ishaq (deceased)
whereas the other accused Naseer Ahmad and Bashir Ahmed
alias Shada fired at complainant Muhammad Ilyas (PW.4) and
Muhammad Shahid (PW.5) who miraculously escaped but
such a story can hardly be believed. Had they having the
common intention to commit the murder of the PWs. who
were at their mercy and reportedly empty handed, could have
CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND
CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017
21
easily achieved their intention of the criminal act. The trial
Court by not believing their version, has acquitted both
Naseer Ahmad and Bashir Ahmed alias Shada from the
charge of murder and as such there was no appeal by the
complainant party against their said acquittal despite the fact
that they had the legal advice available to them during the
trial and thereafter. This very act of the complainant party
further suggests that they were fully satisfied with the
decision of the trial Court. The petitioner Bashir Ahmed alias
Shada, as earlier said, was convicted for his criminal act of
causing injuries to the PWs. and was convicted to that extent
only. The trial Court, before whom the evidence is recorded
and who also notices the demeanor of the witnesses, has
categorically held “there is no incriminating material to prove
the factum of common object or common intention. Therefore,
offence of committing murder against accused Bashir alias
Shada and Naseer is not made out.” Neither the prosecution
nor the complainant has challenged this verdict of acquittal of
charge of murder of the above two in appeal. Similar were the
findings of the appellate Court.
8.
The question of common intention and common
object has been dilated upon by this Court and the High
Courts in a number of cases and no aspect is left untouched.
I would like to make reference to some of such important
cases as to how the question was dealt with by our Courts.
“
(1994 S C M R 1327)
MANZOOR HUSSAIN and 4 others---Appellants
versus
THE STATE---Respondent
We are, therefore, of the opinion that the occurrence is not
the result of pre-concert and premeditation but occurred on
account of sudden flare up. In the case of Bashir Ahmad v.
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CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017
22
The State (PLD 1988 SC 86), this Court observed that
wherever there is doubt about application of sections 34,
107 and 149, P.P.C. it is always necessary not to apply
either of these provisions which seek conviction on
vicarious liability only. In another case Misbahuddin v. The
State PLD 1983 SC 79 it was held that in case of sudden
quarrel question of furtherance of common intention would
not arise. Consequently, the provision of section 149, P.P.C.
was not attracted to the facts of the present case or at least
its application was not free from doubt. We are, therefore,
not inclined to maintain conviction and sentence of Mumtaz
Hussain, Mulazim Hussain and Manzoor Hussain under
section 302/149, P.P.C., however, they are responsible for
their individual acts for causing injuries to Muhammad
Hussain P.W. 8 with their respective weapons of knives and
daggers.
……
(1992 S C M R 1983)
Ch. MUHAMMAD YAQOOB and others---Appellants
versus
THE STATE and others-Respondents
24. Mr. Munir Piracha, learned counsel for two of the
appellants, adopted Mr. Abid Hassan Minto's arguments
and, without prejudice to his contentions on merits, in the
alternative, has vehemently urged that in the present case,
the Courts below erred in pressing into service section 34 of
the Pakistan Penal Code, as, on the basis of the evidence on
record, common intention to commit the offence in
question, cannot be attributed to the appellants/convicts.
According to him the appellants/convicts had no knowledge
of the factum that they would be forced to commit the
offence till the time they were forced to kill the deceased at
the place of Wardat, and as they were told at the police
station that the deceased were to be shifted to Khipro Jail.
It is correct that the accused/convicts in their confessions,
and the approver in his statement, have stated that they
were told at the police station, that the deceased were to be
taken to Khipro Jail, but common intention could be
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23
formed at the spur of the moment, as had been held by this
Court in the case of Muhammad Akbar and two others v.
The State (PLD 1991 SC 923), wherein after referring to the
relevant
case-law
on
the
above
question,
following
conclusion was drawn:----
"From the above-referred cases, it is evident that a
joint action by a number of persons is not
necessarily an action performed with a common
object, but it may be performed on the spur of the
moment as a reaction to some incident and such a
case could fall within the ambit of section 34, P.P.C.
However, it may be pointed out that section 34,
P.P.C. contemplates an act in furtherance of common
intention and not the common intention simpliciter
and that there is a marked distinction between
similar intention and common intention and between
knowledge and common intention….
(P L D 1991 Supreme Court 923)
MUHAMMAD AKBAR and 2 others-- Appellants
versus
THE STATE-- Respondent
12. From the above-referred cases, it is evident that a joint
action by a number of persons is not necessarily an action
performed with a common object, but it may be performed
on the spur of the moment as a reaction to some incident
and such a case would fall within the ambit of section 34,
P.P.C. However, it may be pointed out that section 34,
P.P.C. contemplates an act in furtherance of common
intention and not the common intention simpliciter and
that there is a marked distinction between similar intention
and common intention and between knowledge and
common intention. It may also be observed that mere
presence of an accused at the place of incident with a
co-accused who commits offence may not be sufficient to
visit the former with the vicarious liability, but there should
be some strong circumstance manifesting a common
intention. Generally common intention inter alia precedes
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24
by some or all of the following elements, namely, common
motive, pre-planned preparation and concert pursuant to
such plan. However, common intention may develop even at
the spur of moment or during the commission of offence as
pointed out hereinabove. Conversely common intention may
undergo change during the commission of offence.
……
(P L D 1988 Supreme Court 86)
BASHIR AHMAD and others--Petitioners
versus
THE STATE--Respondent
……
The next question regarding their common intention with
Bashir and whosoever the other was with him in the
strangulation, suffice it to state that the same also is not
free from doubt. And whenever there is doubt about
application of Sections 34, 107 and 149 PPC it is always
necessary not to apply either of these provisions, which
seek conviction on vicarious liability only. Why it is in
doubt in this case whether section 34 is applicable is not
far to seek…..
……
(1984 S C M R 1069)
SAEE AND OTHERS-Appellants
Versus
THE STATE-Respondent
......
.......The learned Judges in the High Court have not created
any such distinction in the two groups but have held that
Muhammad Saee alone had the intention of causing the
death of Asghar Ali, fired at him and in fact caused the
death of Asghar Ali. It was not in the prosecution of the
common object of the unlawful assembly. Similarly, his four
other companions who were found to have fired and injured
CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND
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25
or given hatchet blows to the other witnesses were found
not have done so in prosecution of the common object but
with the common intention and for that reason their
conviction was recorded under section 307/34, P. P. C. on
four counts.....
......
(P L D 1972 Lahore 19)
ATHAR KHAN AND 2 OTHERS-Appellants
versus
THE STATE-Respondent
......
In Fazzo Khan and others v. Jatto Khan and another (1) Sir
Gorge Clause Rankin, Kt. Chief Justice and Graham, J.,
held that :-
"To attract the operation of section 34, Penal Code, and fix
constructive guilt on each of the several accused under that
section, there must be participation in action, with a
common intention, although the different accused might
have taken different parts; and unlike under section 149
before any of them can be convicted for an offence read with
section 34, the Court must arrive at a finding as to which of
the accused took what part, if any, in furtherance of the
common intention. A conviction without such finding is
illegal."
......
(1970 S C M R 780)
MUHAMMAD AZAD AND 6 OTHERS-Appellants
versus
THE STATE-Respondent
……
………The contention that these six persons can only be
held responsible on the evidence, for the consequences of
their individual acts is obviously untenable, since the
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26
attacks upon Tikka Khan, Abdul Aziz and Bhag Ali are
clearly proved to have been the concerted work of the
persons who have been named above, acting in groups. The
application of section 149, P. P. C. in the circumstance of
the case may not be entirely appropriate, for, as has been
seen already, the indications are that the injuries of the
individual members of the complainant-party were not the
result of a massed attack by four hundred persons on four
hundred others, but the attacks on these persons were
included in a number of sporadic assaults, and they cannot
be regarded safely otherwise than in isolation from each
other. But joint responsibility of the nature for which
provision is made in section 34, P. P. C. clearly attaches to
those who joined in the attack upon a particular individual,
to the extent that his injuries were the reasonable and
natural consequence of the attack.
……
(1924) L.R. 52 I.A. 40)
Appellants: Barendra Kumar Ghosh
Vs.
Respondent: The King-Emperor
……
……There is a difference between object and intention, for,
though their object is common, the intentions of the several
members may differ and indeed may be similar only in
respect that they are all unlawful, while the element of
participation in action, which is the leading feature of
Section 34, is replaced in Section 149 by membership of the
assembly at the time of the committing of the offence. Both
sections deal with combinations of persons, who become
punishable as sharers in an offence. Thus they have a
certain resemblance and may to some extent overlap, but
Section 149 cannot at any rate relegate Section 34 to the
position of dealing only with joint action by the commission
of identically similar criminal acts, a kind of case which is
not in itself deserving of separate treatment at all.
……”
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27
9.
By keeping in mind the evidence and the material
available on the record and in view of the judgments, referred
to above, would make it absolutely clear that element of
common intention is not proved and the Courts below have
properly dealt with the matter. Sending back the case of the
petitioners after about ten years would, in my humble
opinion, be nothing short of increasing their agonies and
anguish. By sending their case back to dilate upon the same
evidence and the issue, which has already been dealt with by
the Courts below and the complainant party has also
accepted the same and never raised such issue by
questioning the verdicts of the Courts, would serve no
purpose and not advisable under the law, specially, when the
other three accused have earned an acquittal to its finality.
Sending back the case of the two would also be against
substantial justice. Besides the above, I am also unable to
agree with issuance of guidelines/directions by my learned
brother for circulation to all the Courts. No doubt this Court
is the highest Court of appeal in the country and the law laid
down by this Court is binding on all the Courts but issuance
of directions to the subordinate Courts to follow a particular
course of action in criminal matters is not the domain of this
Court as this would be considered by the courts below to be
binding as per the provisions of Article 189 of the
Constitution of the Islamic Republic of Pakistan, 1973 (the
‘Constitution’). In my opinion, every Judge is independent and
autonomous within its allocated sphere of jurisdiction and
such direction would amount to interference in their
independence which is not permissible under the law. The
Appellate Court indeed can uphold, modify or set aside the
judgment of the lower fora but such guidelines/directions
cannot be held as an “act in aid” of the Supreme Court as
CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND
CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017
28
contemplated in Article 190 of the Constitution. Such
guidelines/directions being supervisory in nature would also
amount to an encroachment upon the supervisory powers of
the High Court vesting in it under Article 203 of the
Constitution.
10.
Since fate of the petitions, on the merits, have not
been announced, so, in my humble opinion, the petitions be
fixed for rehearing and be decided on the basis of available
record and the law. The above were the reasons for my
additional note.
Judge
CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND
CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017
29
ORDER OF THE COURT
By majority of two to one (Mazhar Alam Khan
Miankhel, J dissenting), Criminal Petition Nos. 1371 & 1651-L of
2016 are converted into appeals, allowed and the impugned
judgments of the learned High Court as of the learned Trial Court
are set aside and the matter is remanded back to the learned
Trial Court to conclude the trial in the light of this judgment
within a period of two months whereas Criminal Miscellaneous
Application No. 1704 of 2017 for suspension of sentence is
disposed of as having become infructuous.
JUDGE
JUDGE
JUDGE
|
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|
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
MR. JUSTICE UMAR ATA BANDIAL, ACJ
MR. JUSTICE QAZI MUHAMMAD AMIN AHMED
MR. JUSTICE MUHAMMAD ALI MAZHAR
Criminal Petition No.138-Q of 2020
(Against the judgment dated 21.10.2020 passed
by the High Court of Balochistan in Cr. A.
nO.168/2019)
Javed Ahmed and others
…Petitioner(s)
Versus
The State
…Respondent(s)
For the Petitioner(s)
: Mr. Kamran Murtaza, Sr. ASC
(video link Quetta)
For the Respondent(s)
: Mr. Abdul Baqir Shah, ASC
Date of Hearing
: 23.08.2021
O R D E R
QAZI MUHAMMAD AMIN AHMED,J.-In the backdrop
of a dispute over property, Noor-ud-Din (PW-2) was thrashed,
inside his shop, located within the precincts of Police Station City
Quetta, at 4:25 p.m. on 23.5.2019 by Javed Ahmed, since dead,
Muhammad Aslam, Muhammad Saleem and Khalil, no other than
his cousins in first degree. A police surgeon noted multiple injuries
that included a fracture of left forearm. Spot inspection by
Muhammad Touseef SI (PW-7) confirmed damage caused by the
intruders inside the outlet. Upon conclusion of trial, a learned
Magistrate vide judgment dated 05.12.2019 returned a guilty
verdict; the assailants were burdened with monetary compensation
for causing injuries to the complainant, additionally sentenced for
criminal trespass and concomitant damage to the property; the
learned Additional Sessions Judge acquitted the petitioners from
the
latter
charge,
however,
maintained
the
remainder
of
convictions, upheld by the High Court of Balochistan vide
Criminal Petition No.138-Q of 2020
impugned judgment dated 21.10.2020, vires whereof, are being
assailed, after deposit of Daman under protest on the grounds that
prosecution had cast a wider net to implicate every able bodied
opponent, engaged with the complainant in a civil dispute; that
two injuries with a complaint of pain hardly justified en bloc
conviction of all the petitioners, particularly after prosecution’s
failure on the charge of damage to the property in the court of
session; learned counsel has also referred to a discrepancy in the
deposition of police surgeon regarding date of examination to argue
that flawed evidence clamoured for clean acquittal as the
pensionary benefits of Javed Ahmed deceased are at stake.
2.
We have heard the learned counsel on video link and
perused available record with his assistance to note that on the
common ground of bad blood in the close family, the complainant
was taken on by the petitioners inside his shop, a position that
went un-rebutted in the evidence furnished by the Investigating
Officer. Though acquitted under sections 447, 427, nonetheless,
the site plan showed broken pieces of glass, unmistakably
suggesting a brawl inside the outlet. An erroneous date given by
the police surgeon is not in line with the entry in the medico legal
certificate that unambiguously confirms the date of incident as
23.05.2019.
The witnesses are in a comfortable unison and have rightly
been believed by the Courts below. Possible loss of pensionary
benefits to the family of the deceased petitioner indivisibly linked
with the co-convicts, being a conscionable consequence of the
crime, hardly furnishes a ground to separately overturn his
conviction, based upon a judicial consensus. Petition fails. Leave
declined.
ACJ
Judge
Islamabad
23.08.2021
Azmat/*
Judge
|
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|
IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE MAQBOOL BAQAR
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
MR. JUSTICE JAMAL KHAN MANDOKHAIL
CRIMINAL PETITION NO. 1384 OF 2021
(On appeal against the order dated 25.10.2021 passed
by the Peshawar High Court, Peshawar in Cr.MBA No.
3012-P/2021)
Abdul Saboor
…Petitioner(s)
VERSUS
The State through A.G. KPK and another
…Respondent(s)
For the Petitioner(s):
Ch. Riasat Ali Gondal, ASC
For the Respondent(s):
Mr. Abdul Fayyaz Khan, ASC
For the State:
Mr. Zahid Yousaf Qureshi, Addl. A.G.
Mr. Ziaullah, I.O
Date of Hearing:
25.01.2022
ORDER
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through the instant
petition under Article 185(3) of the Constitution of Islamic Republic of
Pakistan, 1973, the petitioner has assailed the order dated
25.10.2021 passed by the learned Single Judge of the Peshawar
High Court, Peshawar, with a prayer to grant post-arrest bail in case
registered vide FIR No. 678 dated 19.08.2020 under Section 489-F
PPC at Police Station University Town, Peshawar, in the interest of
safe administration of criminal justice.
2.
Briefly stated the allegation against the petitioner is
that to settle some business related transactions, he issued a
cheque amounting to Rs.1,00,000,00/- to the complainant, which
was dishonored when presented to the Bank.
3.
At the very outset, it has been argued by learned
counsel for the petitioner that the petitioner has been falsely roped in
this case against the actual facts and circumstances. Contends that
Criminal Petition No. 1384/2021
-: 2 :-
the cheque in question was given as a security, which was
dishonestly presented to the Bank. Contends that the dispute
regarding payments is a business dispute between the parties,
which involves a factual controversy and the same is to be
determined during trial proceedings. Contends that the petitioner is
behind the bars for the last six and half months and his further
incarceration would not serve any purpose to the prosecution.
Contends that maximum punishment provided under the statute for
the offence under Section 489-F PPC is three years and the same
does not fall within the prohibitory clause of Section 497 Cr.P.C. and
grant of bail in such like cases is a rule and refusal is an exception.
4.
On the other hand, learned Law Officer assisted by
learned counsel for the complainant defended the impugned order
whereby post-arrest bail was declined to the petitioner. They
contended that the petitioner did not deny the signatures on the
cheque and he has deprived the complainant of a huge amount,
therefore, he does not deserve any leniency by this Court.
5.
We have heard learned counsel for the parties at some
length and have perused the available record with their assistance.
As per the contents of the crime report, the petitioner
was running a business of poultry; he borrowed some amount from
the complainant and to settle the same, he issued the cheque in
question to the complainant, which has been dishonored. It is an
admitted position that the petitioner is behind the bars for the last
six and half months whereas the maximum punishment provided
under the statute for the offence under Section 489-F PPC is three
years and the offence does not fall within the prohibitory clause of
Section 497 Cr.P.C. It is settled law that grant of bail in the offences
not falling within the prohibitory clause is a rule and refusal is an
exception. This Court in Muhammad Tanveer Vs. The State and
another (PLD 2017 S.C 733) has held that “once this Court has held
in categorical terms that grant of bail in offences not falling within
the prohibitory limb of section 497, Cr.P.C. shall be a rule and
refusal shall be an exception then the Courts of the country should
follow this principle in its letter and spirit because principles of law
enunciated by this Court are constitutionally binding on all Courts
Criminal Petition No. 1384/2021
-: 3 :-
throughout the country including the Special Tribunals and Special
Courts.” Prima facie Section 489-F of PPC is not a provision which is
intended by the Legislature to be used for recovery of an alleged
amount. It is only to determine the guilt of a criminal act and award
of a sentence, fine or both as provided under Section 489-F PPC. On
the other hand, for recovery of any amount, civil proceedings provide
remedies, inter alia, under Order XXXVII of CPC. At this stage, only
a tentative assessment of the matter is required and we cannot
presume dishonesty on the part of the petitioner as any such
determination would prejudice his right to a fair trial guaranteed by
the Constitution of Islamic Republic of Pakistan, 1973. Liberty of a
person is a precious right which cannot be taken away without
exceptional foundations. The law is very liberal especially when it is
salutary principle of law that the offences which do not fall within
the prohibitory clause, the grant of bail is a rule while its refusal is
mere an exception. By following the aforesaid principle and taking
into consideration all the facts and circumstances stated above, we
are of the view that the case of the petitioner squarely falls within
the ambit of Section 497(2) Cr.P.C. entitling for further inquiry into
his guilt.
6.
For what has been discussed above, we convert this
petition into appeal, allow it and set aside the impugned order dated
25.10.2021. The petitioner is admitted to bail subject to his
furnishing bail bonds in the sum of Rs.10,00,000/- with one surety
in the like amount to the satisfaction of learned Trial Court.
JUDGE
JUDGE
JUDGE
Islamabad, the
25th of January, 2022
Approved For Reporting
Khurram
|
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|
IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
MR. JUSTICE MUHAMMAD ALI MAZHAR
MR. JUSTICE ATHAR MINALLAH
CRIMINAL PETITION NO. 1392 OF 2022
(On appeal against the order dated 05.09.2022
passed by the High Court of Sindh, Circuit Court
Hyderabad in Criminal Bail Application No. S-
760/2022)
Muhammad Nawaz @ Karo
… Petitioner
Versus
The State
…Respondent(s)
For the Petitioner:
Malik Altaf Hussain Kandawal, ASC
For the State:
Mr. Zafar Ahmed Khan, Addl. P.G.
Mr. Nabi Bux, SI
For the Complainant:
Mr. Junaid Iftikhar Mirza, ASC
Syed Rifaqat Hussain Shah, AOR
Date of Hearing:
08.12.2022
JUDGMENT
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through the instant petition
under Article 185(3) of the Constitution of Islamic Republic of Pakistan,
1973, the petitioner has assailed the order dated 05.09.2022 passed by
the learned Single Judge of the learned High Court of Sindh, Circuit Court
Hyderabad, with a prayer to grant post-arrest bail in case registered vide
FIR No. 05/2022 dated 11.05.2022 under Sections 395/342/506-II PPC at
Police Station Thebath, District Jamshoro, in the interest of safe
administration of criminal justice.
2.
Briefly stated the allegation against the petitioner is that he
along with co-accused while armed with firearm robbed Toyota Corolla car
of the complainant along with cash amounting to Rs.65000/- and a driving
license.
Criminal Petition No. 1392/2022
2
3.
At the very outset, it has been argued by learned counsel for
the petitioner that the petitioner has been falsely roped in this case
against the actual facts and circumstances. Contends that the crime report
was lodged after an inordinate delay of more than nine months for which
no plausible explanation has been given. Contends that during
investigation, no incriminating material was recovered from the petitioner,
which could connect him with the commission of the crime. Contends that
the learned High Court while declining bail to the petitioner has not
followed the guidelines issued by this Court for the safe administration of
criminal justice, therefore, the same may be set at naught and the
petitioner may by released on bail.
4.
On the other hand, learned Law Officer assisted by learned
counsel for the complainant vehemently opposed the petition. It has been
contended that although the crime report was registered with an
inordinate delay of more than nine months but there was no mala fide on
the part of the complainant. It has been contended that the complainant
was himself trying to find the robbed property and when he came to know
that it was the petitioner who robbed his car, he approached him but the
petitioner kept him on false hopes, thereafter, he lodged the crime report.
5.
We have heard learned counsel for the parties at some
length and have perused the available record with their able assistance.
As per the contents of the crime report, on 26.07.2021 the
petitioner along with co-accused while armed with firearms robbed Toyota
Corolla car of the complainant along with Rs.65000/- and a driving license.
However, the formal crime report for the same was lodged on 11.05.2022
after a lapse of nine months and sixteen days. The only explanation given
by the complainant is that he was himself trying to find the robbed
property. When he got to know that it was the petitioner who has
allegedly robbed his car, he approached him to return his property and on
his refusal he lodged the crime report. We are afraid, this explanation
cannot be accepted. The record is silent as to on which date, the
complainant got the information and when did he approach the petitioner.
Criminal Petition No. 1392/2022
3
There is also nothing on record to indicate as to why the petitioner kept
mum for such a long period of time and did not even bother to inform the
Police. We have been informed that no recovery has been affected from
the petitioner despite of the fact that he remained with the police on
physical remand for a considerable period of time. So far as ‘criminal
intimidation’ is concerned, the same has been defined in Section 503 PPC.
A bare perusal of this provision of law makes it clear that whenever an
overt act is materialized and ended into an overt act, the provision of
Section 506(ii) PPC would not be applicable and the only provision which
will remain in the field is the overt act, which is committed in consequence
of criminal intimidation. The petitioner is behind the bars for the last more
than five months. This court has time and again held that liberty of a
person is a precious right, which cannot be taken away unless there are
exceptional grounds to do so. Merely on the basis of bald allegations, the
liberty of a person cannot be curtailed. In these circumstances, the
petitioner has made out a case for bail as his case squarely falls within the
purview of Section 497(2) Cr.P.C. entitling for further inquiry into his guilt,
which even otherwise does not fall within the prohibitory clause. Grant of
bail in such like cases is a rule whereas refusal is mere an exception.
6.
For what has been discussed above, we convert this petition
into appeal, allow it and set aside the impugned order dated 05.09.2022.
The petitioner is admitted to bail subject to his furnishing bail bonds in the
sum of Rs.100,000/- with one surety in the like amount to the satisfaction
of learned Trial Court.
JUDGE
JUDGE
JUDGE
Islamabad, the
8th of December, 2022
Approved For Reporting
Khurram
|
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|
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mushir Alam
Mr. Justice Yahya Afridi
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.14-Q of 2021
(Against the order dated 31.12.2020 passed by the High Court of Balochistan
in Crl. Appeal No.323 of 2020)
Naseem Khan
…Petitioner(s)
Versus
The State
…Respondent(s)
For the Petitioner(s):
Mr. Najeeb Ullah Kakai, ASC
For the State:
Mr. Abdul Baqar Shah,
Addl. Prosecutor General, Balochistan
Date of hearing:
31.03.2021.
ORDER
Qazi Muhammad Amin Ahmed, J.- Riding on a bike, the
petitioner was surprised by a contingent of Crime Investigation Agency
Pashin with 3-k.g. of cannabis, wrapped in three separate packets,
concealed beneath the driving seat, on 7.9.2002; along with the
contraband, he was handed over to the local police; a learned Additional
Sessions Judge at Pashin, returned him a guilty verdict; convicted
under clause (c) of section 9 of the Control of Narcotic Substances Act,
1997, he was sentenced to 3-years R.I. with a direction to pay fine,
pre-trial period inclusive, upheld by the High Court of Balochistan vide
impugned judgment dated 31.12.2020, vires whereof, are being assailed
primarily on the ground that notwithstanding, prosecution’s case that
the raiding party secured sample from each packet, the forensic report
relied upon by the prosecution purports a forensic analysis from one
sample of 5 grams to confirm the narcotic character of the contraband.
It is additionally argued that the petitioner, an errant youth in his first
misadventure, deserves in circumstances a benevolent opportunity to
reform himself so as to rehabilitate in mainstream life to become a
useful member of the society, a possibility obstructed by his continuous
stay in prison.
Criminal Petition No. 14-Q of 2021
2
2.
Heard. Record perused.
3.
Though not specifically pleaded, the petitioner figures
somewhat in the adolescent interregnum with no past history to his
discredit; prosecution’s claim of possession of 3 k.g. of cannabis
notwithstanding, the forensic report unambiguously refers to receipt of
single sample of 5 grams.
Purpose of administration of criminal justice is to ensure that
majesty of law reigns supreme with peace and equilibrium in the
society, it is not designed to wreak vengeance; it must provide
opportunity to the errant to possibly reform himself so as to rejoin
mainstream life as a useful member thereof. Prosecution’s reliance
upon a single consolidated sample instead of dispatching three separate
samples from each bag brings petitioner’s case within the purview of
clause (b) of the section ibid and, thus, a corresponding reduction in his
sentence
is
an
option
most
conscionable
in
circumstances.
Consequently, petitioner’s sentence is reduced to already undergone by
him with reduction in fine to Rs.5000/- or to undergo two months SI in
the event of default. Petition is converted into appeal and partly allowed.
Judge
Judge
Judge
Islamabad, the
31st March, 2021
Azmat/-
|
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Manzoor Ahmad Malik
Mr. Justice Sardar Tariq Masood
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.140-P of 2014
(Against the judgment dated 15.10.2014
passed by the Peshawar High Court,
Peshawar in Criminal Appeal No.207 of
2011).
Nazeer Khan
…Petitioner(s)
VERSUS
The State and another
…Respondent(s)
For the Petitioner(s)
: Mr. M. Amjad Iqbal, ASC
For the State
: Mr. Anis M. Shahzad, ASC
Date of Hearing
: 10.06.2019
JUDGMENT
Qazi Muhammad Amin Ahmed, J.- In the wake of
absconsion, commencing from January 1992, Nazeer Khan,
petitioner, accused in a case of homicide, was finally tried by a
learned Additional Sessions Judge at Kohat, in the year 2011;
he stood convicted and sentenced vide judgment dated
15.3.2011, upheld by a learned Division Bench of the
Peshawar
High
Court
vide
impugned
judgment
dated
15.10.2014.
On the fateful day i.e. 22.1.1992 at about 1.30 p.m., over
a dispute of land, the petitioner shot Nisar Muhammad,
whereas his brother, Jan Muhammad, targeted Ghaffar Gul,
PW; the former succumbed to the injuries leaving behind his
last declaration pointed upon petitioner’s culpability; his
brother though exonerated from being in the community of
intention, nonetheless, was held guilty for murderous assault;
he was convicted and sentenced without challenge. Upon
Criminal Petition No.140-P of 2014
2
petitioner’s arrest, the same prosecution evidence has been
pressed into service to drive home the charge.
2.
Though wounded critically, the last declarant was
found by the medical officer well within capacity to share
details of the incident, a narrative found by us as
straightforward and confidence inspiring besides being in
harmony
with
ocular
account
and
medical
evidence.
Petitioner’s absence from law sans any justification. Given
petitioner’s advance age, he has already been dealt with
leniently. Impugned judgment being well within the remit of
law as well as facts applicable thereto does not call for
interference. Petition is dismissed and leave to appeal refused.
JUDGE
JUDGE
Islamabad, the
10th of June, 2019
Ghulam Raza/*
JUDGE
|
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|
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Sajjad Ali Shah
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.143-K of 2020
(Against the judgment dated 07.07.2020 passed by the High Court of
Sindh at Karachi in Cr. A. No.615 of 2019)
Faheemullah
…Petitioner(s)
Versus
The State
…Respondent(s)
For the Petitioner(s): Syed Shau-un-Nabi, ASC
Ms. Abida Parveen Channar, AOR
For the State:
Mr. Hussain Bux,
Addl. Prosecutor General Sindh
Date of hearing:
06.09.2021
ORDER
Qazi Muhammad Amin Ahmed, J.- Surprised with
5080 grams of cannabis by a contingent of Police Station Pirabad, the
petitioner was sent to Court of Session (West) Karachi; upon
indictment, he claimed trial that resulted into his conviction under
section 9(c) of the Control of Narcotic Substances Act, 1997; he was
sentenced to 7-years 6-months with a direction to pay fine vide
judgment dated 30.8.2019, upheld by a Division Bench of the High
Court of Sindh vide impugned judgment dated 7.7.2020, vires
whereof, are being assailed on the grounds that the High Court as
well as the Court of Session, concurrently ran into error by placing
implicit reliance on the prosecution’s evidence, inherently flawed and
tainted, maliciously produced to secure an unjustified conviction; the
bottom line is that a false case was cooked up, through abuse of
process of law, to hush up an unauthorized raid on petitioner’s
house, during the course whereof, cash, gold ornaments as well as
other valuables were taken away by a police mobile, an incident that
according
to
the
learned
counsel
was
witnessed
by
the
neighbourhood. The learned Law Officer has faithfully defended the
impugned judgment being based upon confidence inspiring evidence.
2.
Heard. Record perused.
Criminal Petition No. 143-K/2020
2
3.
Prosecution case is consistent and straightforward. The
petitioner was apprehended during a routine patrol and his arrest
along with contraband were incorporated in the daily diary, entry
whereof, is placed on record as Exh.3/A; site plan and inspection
note also coincide with the details, elaborated in the crime report.
These are also consistent with the investigative details. There is
nothing on the record that could even obliquely support the plea
belatedly taken by the petitioner and, thus, preponderance of
prosecution evidence comprising safe custody of contraband,
transmission of sample to the office of chemical examiner with a
positive report supported by a unison account furnished by the
official witnesses remained unscathed during an inconsequently
cross-examination. Learned trial Court as well as the High Court
concurrently found the prosecution evidence sufficient to successfully
constitute “proof beyond doubt”; we on our own independent analysis,
in the absence of any material to support the hypothesis canvassed
at the bar, have not been able to persuade ourselves to take a
different view. Impugned judgment being well within remit of law and
inconsonance with the principle of safe administration of criminal
justice calls for no interference. Petition fails. Leave declined.
Judge
Judge
Karachi, the
6th September, 2021
Not approved for reporting
Azmat/-
|
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Gulzar Ahmed, CJ
Mr. Justice Ijaz ul Ahsan
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.143-K of 2021
(Against the judgment dated 22.10.2021 passed by the High Court of
Sindh Karachi in Cr. Bail Application No.S-733 of 2021)
Ghulam Qadir
…Petitioner(s)
Versus
The State
…Respondent(s)
For the Petitioner(s):
Ms. Abida Parveen Channar, ASC/AOR
with petitioner.
For the State:
N.R.
Date of hearing:
25.11.2021.
ORDER
Qazi Muhammad Amin Ahmed, J.- Apprehending arrest
in
a
case
of
murderous
assault,
Ghulam
Qadir,
petitioner,
unsuccessfully attempted for bail in anticipation thereto; lastly on
22.10.2021 before a learned Judge-in-Chamber of the High Court of
Sindh, Circuit Court Hyderabad.
According to the prosecution, on the eventful day i.e. 12.8.2021,
accompanied by co-accused, each differently armed, the petitioner in
the backdrop of a trivial dispute, inflicted a club blow to Manzoor PW
while the co-accused targeted Muhammad Ibrahim and Shaman;
medico legal reports confirmed receipt of multiple injuries by the
witnesses.
3.
Pleading denial and innocence, learned counsel for the
petitioner contends that it is a case of wider net wherein each able-
bodied member of the opponent side has been taken on board to face
the rigors of an unjust prosecution, however, she concedes that
according to the investigation, henceforth conducted, the Investigating
Officer has not yet ruled out his participation in the crime; she has
lastly referred to a delay of no less than five days in registration of the
Criminal Petition No. 143-K of 2021
2
case to conclude that the intended arrest is not free from the taints of
mala fide.
2.
Heard. Record perused.
3.
Contents of the First Information Report supported by the
statements of the witnesses and findings recorded by the Medical
Officer run counter to the hypothesis of denial. Though the formal First
Information Report was recorded on 17.8.2021, however, the injured
with extensive injuries were medically examined under police dockets
on 13.8.2021; according to the provisional medico legal certificates,
they had reached hospital on 12.8.2021 at 6:00 p.m. just half an hour
after the incident and, thus, delay in formal registration of the case, a
phenomena hardly unusual, does not raise eyebrows. Even otherwise,
in the absence of any apparent mala fide on part of the complainant or
the local police, the petitioner cannot claim extraordinary/equitable
concession of pre-arrest bail in a criminal case wherein no less than
three persons endured multiple injuries, one being an incised wound on
the back of neck with exposed bone. Arguments addressed by the
learned counsel, being part of post arrest agenda, cannot be attended at
pre-arrest bail stage, certainly not a substitute for post arrest bail. The
High Court as well as the Court of Session, on the assessment of above
referred to material, rightly declined judicial protection to the petitioner.
Petition fails. Leave declined.
Chief Justice
Judge
Judge
Karachi, the
25th November, 2021
Azmat/-
|
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"url": ""
}
|
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
MR. JUSTICE SAJJAD ALI SHAH
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
CRIMINAL PETITION NO.1431 OF 2019
(Against the order of the Lahore High
Court, Rawalpindi Bench, Rawalpindi
dated 11.11.2019 passed in Crl. Misc.
No.1780-B/2019)
Noor Muhammad
… Petitioner
Versus
The State and another
… Respondents
For the Petitioner
For the Complainant
:
Malik Waheed Anjum, ASC
Syed Rifaqat Hussain Shah AOR
Altaf Elahi Sheikh, ASC
Mehmood A. Sheikh, AOR
For the State
:
Mirza M. Usman DPG, Punjab
Khalid Ahmad SDPO
Tariq Mehmood SHO
Date of Hearing
:
07.05.2020
ORDER
SAYYED MAZAHAR ALI AKBAR NAQVI, J:- Petitioner
has assailed the jurisdiction of this Court under Article 185(3) of the
Constitution of Islamic Republic of Pakistan, 1973 challenging the
order of the learned Lahore High Court, Rawalpindi Bench
Rawalpindi dated 11.11.2019 with the prayer to grant leave against
the order and to release the petitioner on bail in the interest of
justice.
2.
The petitioner alongwith others was involved in case
bearing FIR No.123/2017 dated 25.04.2017, under Section 302,
Criminal Petition No. 1431 of 2019.
-:2:-
324, 34 PPC, registered with police station Talagang, District
Chakwal
As per allegation contained in the crime report, it is
alleged that the petitioner alongwith his co-accused while armed
with hatchet inflicted blow on the head of father of complainant, who
succumbed to the injuries. The petitioner applied for post arrest bail
before the learned trial court which was dismissed vide order dated
03.10.2019. The order of learned Additional Sessions Judge,
Talagang
was assailed before learned Lahore High Court
Rawalpindi Bench, Rawalpindi through Criminal Miscellaneous
No.1780-B/2019 which was decided vide order dated 11.11.2019
while resulting into dismissal of bail application. Hence, the instant
petition.
3.
At the very outset, it has been argued by the learned
counsel for the petitioner that the local police investigated the matter
in detail and ultimately found the involvement of the petitioner
suspicious, hence, his arrest was deferred under section 169 Cr.P.C.
The second investigation was carried out by RIB, Rawalpindi.
During the investigation, the participation of the petitioner was also
found doubtful and as such the investigating officer has not given a
definite opinion qua culpability of the petitioner in the said matter.
Contends that third investigation was also carried out by Crime
Branch Punjab, however, the petitioner was found involved on the
basis of special oath offered in the mosque which is against the
spirit of Article 163 of Qanun-e-Shahadat Order, 1984. Further
contends that the sole eye witness mentioned in the FIR got
recorded his statement thrice under section 161 Cr.P.C. In all three
successive statements, he has contradicted his earlier statement,
Criminal Petition No. 1431 of 2019.
-:3:-
hence it looses its credibility as a witness and reduces its value of
the statement to nil. The investigating officer recorded the statement
of daughter and daughter-in-law of the deceased at a belated stage
to strengthen the prosecution case which negates its authenticity.
Contends that in the given facts and circumstances, the case of the
petitioner is fully covered under section 497(2) Cr.P.C entitling him
for concession of bail.
4.
On the other hand, learned Law Officer assisted by
learned counsel for the complainant has stated that the petitioner is
nominated in the crime report with the allegation of inflicting hatchet
blow on the head of the deceased, however frankly conceded that
the statements of the PWs was recorded on 31.12.2018. Finally, the
learned law officer has stated that recovery of hatchet has been
affected from the petitioner, hence, he is not entitled for grant of bail.
5.
We have heard the learned counsel for the parties and
gone through the record.
There is no denial to this fact that local police deferred
the arrest of the petitioner during the course of investigation in terms
of section 169 Cr.P.C. The prosecution being aggrieved applied for
transfer of investigation which was entrusted to RIB, Rawalpindi.
During the course of investigation carried out by Senior Police
Officer, though the investigation was conducted in detail but no
definite finding was given regarding the participation of petitioner in
the instant case. The investigation in this case was further entrusted
to Crime Branch Punjab when the petitioner was found involved in
this case on the basis of special oath. It is established principle of
law that concept of special oath is in defiance of Article 163 of
Qanun-e-Shahadat Order 1984. The same is reproduced as under:-
Criminal Petition No. 1431 of 2019.
-:4:-
163. Acceptance or denial of claim on oath:
(1)
…………..
(2)
……………
(3)
Nothing in this Article applies to laws relating to the
enforcement of Hudood or other criminal cases
We have also noticed from the record that Khawaja Din Muhammad
(PW) has made three successive statements before investigating
officers. In all three statements, he has taken somersault while
negating each statement whereas last statement was made at a
belated stage. The third statement made by said witness before
DSP, Investigating Branch was recorded on 10.12.2018 with the
delay of one and half year. Similarly, Mst. Amina Bibi and Mst.
Imtiaz Fatima introduced eye witnesses of the occurrence also made
their statements under section 161 Cr.P.C on 31.12.2018 with the
delay of more than one and half year. It is established principle of
law that delayed recording of statement of the PW under section 161
Cr.P.C. reduces its value to nil. Reliance in this regard is placed
upon case titled as “ABDUL KHALIQ versus THE STATE” (1996
SCMR 1553) wherein it has been held as under:-
“---S. 161---Penal Code (XLV of 1860), S. 302/34---Late
recording of statement under S. 161, Cr.P.C. ---Value----Late
recording of a statement of a prosecution witness under S.
161, Cr.P.C. reduces its value to nil unless delay is plausibly
explained”.
The contention of the learned counsel for the complainant that
recovery has been affected after lapse of more than two years, the
value of the same would be resolved by the learned trial court after
recording of evidence. It has been stated before us that trial has
commenced and two witnesses have already been recorded. We
have taken this aspect into consideration and found that if the case
of the petitioner comes within the ambit of “further inquiry” under
Criminal Petition No. 1431 of 2019.
-:5:-
section 497(2) Cr.P.C. he cannot be kept behind the bar even for a
moment. Otherwise, liberty of a person is a precious right which has
been guaranteed in the Constitution of Islamic Republic of Pakistan,
1973.
6.
As a consequence of the facts and circumstances
surfaced on the record, we are persuaded to grant leave in this case.
As such, Criminal Petition is converted into appeal, same is allowed;
the petitioner shall be released on bail subject to his furnishing bail
bonds in the sum of Rs.5,00,000/- with one surety in the like
amount to the satisfaction of the learned trial Court/Duty Judge.
7.
Before parting with the order, it has been made clear
that the observations made hereinabove are tentative in nature and
it has no bearing during the course of proceedings before the learned
trial court.
Judge
Judge
Islamabad,
07.05.2020
Approved for reporting
Athar
|
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"url": ""
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|
IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
MR. JUSTICE MUHAMMAD ALI MAZHAR
MR. JUSTICE SHAHID WAHEED
CRIMINAL PETITION NO. 1442 OF 2022
(On appeal against the order dated 02.11.2022 passed
by the Lahore High Court, Lahore in Crl. Misc. No.
60863-B/2022)
Muhammad Tanveer etc
… Petitioners
Versus
The State and another
… Respondents
For the Petitioner:
Mr. Salman Mansoor, ASC a/w petitioners
(Via video link from Lahore)
For the State:
Mirza Muhammad Usman, DPG
Mr. Hassan Farooq, DSP
Mr. Sadiq, SI
Date of Hearing:
01.12.2022
JUDGMENT
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through the instant petition under
Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the
petitioners have assailed the order dated 02.11.2022 passed by the learned
Single Judge of the learned Lahore High Court, Lahore, with a prayer to grant
pre-arrest bail in case registered vide FIR No. 391 dated 30.08.2022 under
Section 440 PPC at Police Station Raja Jang, District Kasur, in the interest of
safe administration of criminal justice.
2.
Briefly stated the prosecution story as narrated in the FIR is that
the complainant had cultivated the crop of mint in his land. On the fateful day
and time, the petitioners along with another co-accused entered in his land
and plowed and destroyed his entire crop and caused him a loss of
Rs.125,000/-.
3.
At the very outset, it has been argued by the learned counsel for
the petitioners that the petitioners have been falsely roped in this case against
the actual facts and circumstances due to mala fides of the complainant in
Criminal Petition No. 1442-L/2022
-: 2 :-
connivance with local police. Contends that the land, which is the root cause of
the occurrence, does not belong to the complainant and the petitioners are in
continuous possession of the property since long. Contends that civil litigation
over the ownership/title of the property between the parties is pending
adjudication and the present case is an attempt to pressurize the petitioners
to gain ulterior motives. Contends that Section 440 PPC is not applicable as the
petitioners are owners of the property in dispute. Lastly contends that the
petitioners deserve to be granted the extraordinary concession of pre-arrest
bail in the interest of justice.
4.
On the other hand, learned Law Officer has defended the
impugned order. It has been contended that the petitioners are specifically
nominated in the crime report with a specific allegation of destroying the
standing crop of the complainant, therefore, they do not deserve any leniency
by this Court. Further contends that the petitioners filed successive bail
applications before the learned High Court, which is not admissible under the
law.
5.
We have heard learned counsel for the parties at some length
and have perused the available record with their able assistance.
As per the contents of the crime report, the allegation against
the petitioners is that they plowed and destroyed the standing crop of mint
from the land of the complainant and caused him a loss of Rs.125,000/-.
However, it is the stance of the petitioners that the petitioners’ party is owner
of the land in question where the occurrence took place; they are in
possession of requisite title documents and in-fact the complainant party was
the aggressor. It is admitted position that a civil suit for declaration qua the
land in question is still pending adjudication before the court of competent
jurisdiction, which was filed about one year earlier to lodging of the instant
FIR. In this view of the matter, the possibility of false implication just to
pressurize the petitioners’ side to gain ulterior motives cannot be ruled out.
However, at this stage, we do not want to comment on this aspect of the
matter, lest it may prejudice the case of either of the party. It is the Trial Court
who after recording of evidence would decide about the guilt of the
Criminal Petition No. 1442-L/2022
-: 3 :-
petitioners and as to whether Section 440 PPC is applicable or not. Even
otherwise, all the six petitioners have been ascribed the role of jointly causing
a loss of Rs.125,000/- to the complainant. It is settled law that liberty of a
person is a precious right, which has been guaranteed under the Constitution
of Islamic Republic of Pakistan, 1973, and the same cannot be taken away
merely on bald and vague allegations. The petitioners had earlier filed Crl.
Misc. No. 59705-B/2022 seeking the relief of pre-arrest bail before the learned
High Court, which was dismissed due to non-appearance of the petitioners on
03.10.2022. However, we have been informed that on that day, the petitioners
got late but their counsel had duly informed the court. When the same was
dismissed, the petitioners filed the second bail petition on the same day,
which has been dismissed vide impugned order. It is now established that
while granting pre-arrest bail, the merits of the case can be touched upon by
the Court. Reliance is placed on Miran Bux Vs. The State (PLD 1989 SC 347),
Sajid Hussain @ Joji Vs. The State (PLD 2021 SC 898), Javed Iqbal Vs. The State
(PLD 2022 SCMR 1424) & Muhammad Ijaz Vs. The State (2022 SCMR 1271).
Taking into consideration all the facts and circumstances stated above, we are
of the view that the case of the petitioners squarely falls within the ambit of
Section 497(2) Cr.P.C. entitling for further inquiry into their guilt.
6.
For what has been discussed above, we convert this petition into
appeal, allow it, set aside the impugned order dated 02.11.2022 and confirm
the ad interim pre-arrest bail granted to the petitioners vide this Court’s order
dated 24.11.2022.
JUDGE
JUDGE
JUDGE
Islamabad, the
1st of December, 2022
Approved For Reporting
Khurram
|
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"url": ""
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|
IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE IJAZ UL AHSAN
MR. JUSTICE SAJJAD ALI SHAH
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
CRIMINAL PETITION NO. 145-L OF 2021
(On appeal against the order dated 20.01.2021 passed by
the Lahore High Court, Lahore in Crl. Misc. No. 33500-
B/2020)
Dildar Ahmad
… Petitioner
VERSUS
The State etc
… Respondents
For the Petitioner:
Mian
Muhammad
Saeed,
ASC
a/w
petitioner in person
For the State:
Ch. Muhammad Sarwar Sidhu, Addl. P.G.
For the Respondent (2): Mr. mansoor-ur-Rehman, ASC
Date of Hearing:
04.11.2021
ORDER
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through the instant
petition under Article 185(3) of the Constitution of Islamic Republic of
Pakistan, 1973, the petitioner has assailed the order dated
20.01.2021 passed by the learned Single Judge of the Lahore High
Court, Lahore, with a prayer to grant pre-arrest bail in case
registered vide FIR No. 336/2020 under Sections 337-F(v)/34 PPC
at Police Station Satrah, District Sialkot, in the interest of safe
administration of criminal justice.
2.
As per the contents of the crime report, on the fateful
day and time, the petitioner was digging pits in the state land and
mixing them in his own land. When the complainant forbade the
petitioner from doing so, the petitioner got infuriated and called his
co-accused and upon their arrival he gave ‘kassi’ blow on the right
arm of the complainant, due to which his arm was fractured.
3.
At the very outset, it has been argued by learned
counsel for the petitioner that the petitioner has been falsely roped in
this case against the actual facts and circumstances of this case due
CRIMINAL PETITION NO. 145-LOF 2021
2
to connivance of the complainant with local police. Contends that in-
fact the complainant party was the aggressor and in the incident
five injuries were caused to the petitioner, which were suppressed,
and as the complainant is a Police constable, the cross-version of the
petitioner could not be registered. Contends that the petitioner was
also got medically examined and the factum of receiving injuries on
his person has been proved. Contends that the injured-complainant
was re-examined by a Medical Board, which has found that so far
as the injury on his person is concerned, the possibility of fabrication
cannot be ruled out. Contends that the offence does not fall within
the prohibitory clause of Section 497 Cr.P.C. and the challan has
already been submitted before the Trial Court, therefore, the
petitioner deserves the concession of pre-arrest bail.
4.
On the other hand, learned Law Officer assisted by the
learned counsel for the complainant defended the impugned order
whereby pre-arrest bail was declined to the petitioner. They
contended that the report of the Medical Board dated 05.08.2020
was challenged before the Provincial Standing Medical Board,
Lahore, and it was found that there is no possibility of fabrication so
far as the injury ascribed to the petitioner is concerned, therefore,
the petitioner does not deserve any leniency by this Court.
5.
We have heard learned counsel for the parties at some
length and have perused the record with their assistance.
As per the contents of the crime report, the allegation
leveled against the petitioner is that he caused ‘kassi’ blow on the
right arm of the complainant due to which it got fractured/broken.
The complainant was firstly medically examined on 29.06.2020 by a
Medical Officer of Rural Health Clinic, Satrah, and then was re-
examined by the District Standing Medical Board on 05.08.2020,
which clearly opined that considering the nature and locale of injury,
the possibility of fabrication cannot be ruled out. Although, the case
of the complainant was re-examined by the Provincial Standing
Medical Board for the third time but on our specific query, we have
been informed that the complainant had not appeared before it for
his examination for the third time. It is the case of the petitioner that
in-fact the complainant party was the aggressor and during the
occurrence, the petitioner has also received as many as five injuries
CRIMINAL PETITION NO. 145-LOF 2021
3
on different parts of his body, which are detailed in the medico legal
report available at page 30 of the paper book. Prima facie the
injuries sustained by the petitioner were suppressed. In these
circumstances, a prima facie doubt has arisen qua the authenticity
of the prosecution’s case. It has been held by the superior courts
from time to time that benefit of doubt, if established, can be
extended even at bail stage. Reliance is placed on Samiullah Vs.
Laiqzada (2020 SCMR 1115) & Muhammad Faisal Vs. The State
(2020 SCMR 971). In these circumstances, it seems more
appropriate and justiciable to decide the truthfulness of the
accusation by the Trial Court after recording of evidence. The challan
has been submitted before the Trial Court and the offence does not
fall within the prohibitory clause of Section 497 Cr.P.C. Keeping in
view all the facts and circumstances, the case of the petitioner
squarely falls within the purview of Section 497(2) Cr.P.C. entitling
for further inquiry into his guilt.
6.
For what has been discussed above, we convert this
petition into appeal, allow it, set aside the impugned order dated
20.01.2021 and confirm the ad interim pre-arrest bail granted to the
petitioner by this Court vide order dated 04.10.2021.
JUDGE
JUDGE
JUDGE
Islamabad, the
4th of November, 2021
Approved For Reporting
Khurram
|
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|
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Gulzar Ahmed, CJ
Mr. Justice Ijaz ul Ahsan
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.146-K of 2021
(Against the judgment dated 25.10.2021 passed by the High Court of
Sindh Circuit Court Hyderabad in Cr. Bail Application No.S-860 of
2021)
Ameer Maviya alias Maviya and others
…Petitioner(s)
Versus
The State
…Respondent(s)
For the Petitioner(s):
Mr. Manzoor Ahmed Panhwar, ASC
Mr. Ghulam Rasool Mangi, AOR
with petitioners.
For the State:
N.R.
Date of hearing:
25.11.2021.
ORDER
Qazi Muhammad Amin Ahmed, J.- The petitioners,
accompanied by 5/6 unknown companions, armed with hatchets and
pistols, allegedly mounted assault, in the backdrop of ongoing civil
litigation, as a consequence whereof, Parvez Ali and Mashooq Ali PWs,
endured multiple injuries; the incident occurred on 18.6.2021 within
the precincts of Police Station Taloka Matli, District Badin; the injured
were medically examined, purportedly under a police docket, on the
same day, however, a criminal case were registered as late as on
01.09.2021, that too, on the intervention of a Justice of Peace.
Petitioners’ plea of false implication and intended arrest with the
stains of mala fide failed to weigh both with the Court of Session as well
as the High Court of Sindh.
2.
Heard. Record perused.
3.
A detailed plea, argued at inordinate length, hardly merits
consideration to even obliquely entertain any hypothesis of mala fide in
an incident that presents a usual run of the mill criminal case.
Statutory procedures to investigate a crime cannot be held in abeyance
Criminal Petition No. 146-K of 2021
2
in a routine without grievously undermining the effective functionality
of the investigative process, a step essentially to be taken in the face of
justifiably compelling considerations to thwart the process of law in aid
of justice, hardly a case in hand. View concurrently taken by the Court
of Session as well as the High Court, being well within the remit of law,
calls for no interference. Petition fails. Leave declined.
Chief Justice
Judge
Judge
Karachi, the
25th November, 2021
Azmat/-
|
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|
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Sajjad Ali Shah
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.147-K of 2020
(Against the judgment dated .27.08.2020 passed by the High Court of
Sindh, Circuit Bench at Hyderabad in Cr. A. No.46 of 2020)
Aijaz Ali Rajpar
…Petitioner(s)
Versus
The State
…Respondent(s)
For the Petitioner(s):
Mian Taj Muhammad, ASC
For the State:
Mr. Hussain Khan Baloch,
Addl. Prosecutor General Sindh
Date of hearing:
09.09.2021.
ORDER
Qazi Muhammad Amin Ahmed, J.- Surprised by a
contingent of Mitiari police with 1920 grams cannabis, the petitioner
was sent to face trial before a learned Addl. Sessions Judge/Special
Judge (CNS) at Hyderabad; he claimed trial that resulted into his
conviction under section 9(c) of the Control of Narcotic Substances Act,
1997 vide judgment dated 12.11.2019; he was sentenced to 4-years
6-months with a direction for payment of fine. The High Court of Sindh
first remanded the case for petitioner’s re-examination under section
342 of the Code of Criminal Procedure, 1898, however, the trial Court
again proceeded to convict him with the same quantum of sentence vide
judgment dated 10.08.2020, upheld vide impugned judgment dated
27.08.2020, vires whereof, are being assailed on a number of grounds;
the bottom line is that a fake recovery was foisted upon the petitioner to
settle a previous score with him as his brother had moved an
application under section 491 of the Code ibid against the local police,
shortly before his unjustified arrest. Without opting to be his own
witness to disprove the charge, the petitioner tendered order dated
17.11.2018 purportedly issued by an Addl. Sessions Judge on a motion
made by his brother Muhammad Iqbal; the petition was dismissed vide
Criminal Petition No. 2-Q of 2021
2
order of even date as a Bailiff/Raid Commissioner deputed by the Court
reported the accusation as factually incorrect. The learned counsel
alternately argued for reduction of sentence to the period already
undergone as, according to him, after inclusion of remissions, the
petitioner has served out a substantial portion of his sentence. The
learned Law Officer has, however, defended the impugned judgment
and also opposed reduction in sentence on the ground of its being
within the remit of law.
2.
Heard. Record perused.
3.
A considerable quantity of the contraband rules out false
imposition; reliance upon some documents suggesting an antedated
botched attempt in the Court of Session, without entry in the witness-
box, does not by itself support the hypothesis of suggested animosity
with the police nor does it undermine the preponderance of prosecution
evidence, constituting a continuous chain of events that inspiringly
framed the petitioner with the charge. Both the recovery witnesses,
namely, Qadir Bukhsh (PW-1) and Ali Ahmed, ASI (PW-2) have not even
been suggested any past rancor harbored by the raiding party. The trial
Judge, after twice appraising the evidence found the witnesses in a
unison, a view confirmed by the High Court. Upon our own
examination, we have found the witnesses straightforward and
consistent, bracing the cross-examination without any embarrassment.
Safe custody and transmission of samples accompanied by a positive
forensic report clinched the indictment. We have also considered the
alternate plea of reduction in the sentence; on account of actual period
spent in the prison, do not feel persuaded to grant the request. Scales
being in balance with a wage conscionable in circumstances, petition
fails; leave declined.
Judge
Judge
Karachi, the
9th September, 2021
Azmat/-
|
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|
Crl. Petition No. 1485-L of 2019
5
I have the privilege to read the bail refusing order authored by my
learned brother Mr. Justice Manzoor Ahmad Malik concurred by Mr.
Justice Amin-ud-Din Khan. With utmost respect, I disagree with the
reasonings hence, render my own findings.
SAYYED MAZAHAR ALI AKBAR NAQVI, J.:- Petitioners have
assailed jurisdiction of this Court under Article 185(3) of Islamic
Republic of Pakistan, 1973 seeking leave to appeal against the order
of Single Bench of Lahore High Court (Multan Bench) dated
30.10.2019 by which ad-interim bail granted vide order dated
14.10.2019 was recalled with a prayer to grant anticipatory bail to
the petitioners in the interest of safe administration of criminal
justice.
2.
As per contents of the crime report bearing FIR
No.191/2019 dated 27.05.2019, offences u/s 324, 452, 354, 148,
149 PPC registered with police station Sahuka, Burewala, it is
alleged that 18 accused duly mentioned while 12 unknown variously
armed came to the house of complainant. They hurled threats of
dire-consequences and thereafter resorted to indiscriminate firing. It
is further alleged that they trespassed into the house of
complainant. Mehmood Khan accused raised "lalkara" upon which
Athar Farooq fired with pistol .30 bore hitting Muhammad Mumtaz
on right arm whereas fire shot made by Mehmood Khan had hit on
right leg of a buffalo. Women folk belonging to complainant,
Manzooran Bibi, Rashidan Bibi, Sonia Bibi and Khalida Bibi
attracted to spot to rescue, they were given beating as a
consequence they suffered injuries, clothes worn by them were also
alleged to have been torn which made them naked. Thereafter all
Crl. Petition No. 1485-L of 2019
6
the accused again indulged in aerial firing which had hit boundary
walls and houses of the complainant party. The motive behind the
occurrence is dispute over agricultural land.
3.
The crux of the arguments advanced by learned counsel
for the petitioners is that there is delay of 12 hours in lodging FIR for
which no plausible explanation has been rendered. Contends that
the story advanced by the prosecution is not convincing as it does
not appeal to reason, rather it has been aggravated by the
prosecution. Allegation that 30 persons in furtherance of their
common intention had attacked, however, only one person sustained
single fire shot on non-vital part seems to be absurd, said injury
was ultimately declared under section 337F(iii) PPC, which entail
maximum punishment for 3 years as per statue, whereas the rest of
the PWs sustained simple injures which are bailable in nature. It is
argued that the allegation of entering into the house of complainant
was found false during the course of investigation and as such Sec.
452 PPC was deleted, which has not been challenged. It is further
apprised that the accused party called in question the medico-legal
report of firearm injury being a fabricated document. A petition in
this regard was filed which was allowed. Consequently medical
board was constituted in pursuance of the order of Judicial
Magistrate dated 14.06.2019.The Medical Board summoned injured
PW but he escaped appearance on 08.07.2019, 27.07.2019 and
01.08.2019. In this scenario possibility of fabrication as alleged by
the accused party cannot be ruled out. The question of vicarious
liability in the given circumstances has lost its sting too; hence, same
Crl. Petition No. 1485-L of 2019
7
would be resolved after recording of evidence before the learned trial
court.
4.
On the other hand, learned Additional Advocate General
resisted the grant of pre-arrest bail on the ground that 20 empties
were recovered and as such recovery of weapon has to be affected.
It is a case of common object; therefore, each of them is vicariously
liable for the act of others and the petitioners cannot be granted
extra-ordinary relief, hence, prayed for its rejection.
5.
This Court is conscious of the fact that concept of pre-
arrest bail is an extra-ordinary relief, which is limited to rare cases
based upon trumped-up charges rather it has to be extended
sparingly. To avail such relief, it is obligatory to establish that the
prosecution has been launched, which is based upon malafides,
ulterior motives and if it is materialized, it would certainly cause
irreparable loss to his reputation. The practice to grant ad-interim
bail is extension of such a remedy to act as a shield to protect
innocent person facing highhandedness of individuals or authority
against frivolous litigation. Literally speaking the term ad-interim is
a misnomer as it has fallen in practice. It is worth mentioning that
ad-interim is not mentioned in any provision rather this idea has
been derived from the Order XXXIX Rules 1&2 of Code of Civil
Procedure, 1908 (“Code of 1908).The rationale to grant ad-interim
bail is though synonymous to passing a prohibitory injunction,
however, the concept of ad-interim bail is more precious as compare
to prohibitory injunction. In the former, liberty of the person is
involved whereas in the latter, only propriety rights are in question.
The status of the accused becomes “custodia legis” during the period
Crl. Petition No. 1485-L of 2019
8
when ad-interim bail is granted till its final adjudication subject to
furnishing of sureties to the satisfaction of the Court. Reliance is
placed upon judgment of Full Bench reported as Shabbir Ahmad v.
The State (PLD 1981 Lahore 599).
The provision of Sec.497(2) Cr.P.C confers powers upon
the Court to grant bail during investigation, enquiry or trial subject to
an opinion is formed by the Court that material placed before it is
not sufficient to establish guilt and it still requires further inquiry into
his guilt whereas Section 498 Cr.P.C deals with two situations:-
i)
The fixation of the amount or bond according to the
circumstances;
ii)
Conferment of powers to grant bail to a person who is
not in custody;
Although the provision of Section 498 Cr.P.C is neither
ancillary nor subsidiary to Section 497 Cr.P.C but is an independent
Section, however, bare reading of language of sub-section (2) of
Section 497 Cr.P.C provide considerations for grant of bail by virtue
of section 497(2) Cr.P.C it practically merged section 497/498
Cr.P.C. into one aspect qua concept of pre-arrest bail persuading it to
act conjointly in all fairness. The practice for grant of extra-ordinary
relief has passes through transitory period with divergent
interpretation qua its scope since its inception, however, law is not
static rather it is growing day by day. This Court while handing
down a salutary judgment titled as "Meeran Bux vs. The State and
another" (PLD 1989 Supreme Court 347) enunciated the concept
of pre-arrest bail which was more innovative, liberal, crafted in
consonance with the intent of legislature, hence, it has conceptually
widened its scope in its entirety, elaborating its concept in the spirit
Crl. Petition No. 1485-L of 2019
9
of section 497/498 Cr.P.C. It was reiterated in another judgment of
this Court titled as “Syed Muhammad Firdaus and others v. The
State (2005 SCMR 784). This Court virtually introduced a
broadened mechanism of interpretation to adjudge the element of
malafide or malice at the touch stone of merits of the case. In the
said case, mentioned above, the accused who was ascribed the
injury to the deceased on leg (simple in nature) was granted pre-
arrest bail by Sessions Judge which was recalled by learned High
Court while exercising suo-motu revisional jurisdiction, however, the
order of learned Sessions Judge was restored by this Court while
elaborating the principle in the above said terms.
6.
Keeping in view the facts and circumstances narrated
above, it has made it abundantly clear that while granting pre-arrest
bail, Court can consider the merits of the case in addition to element
of malafides/ulterior motives which has to be adjudged in the light
of law laid down by this Court in the case law stated supra. As a
consequence, courts of law are under bounded duty to entertain
broader interpretation of “law of bail” while interpreting material
placed before it in more liberal manner to arrive at a conclusion
which is badly required due to apparent downfall in the standard of
investigation.
Otherwise liberty of a person is a precious right which
has been guaranteed under the constitution of Islamic Republic of
Pakistan, 1973. To abridge or curtail the liberty merely on the
ground of being involved in a criminal case without adjudging it on
merits would certainly encroached upon the right against free life.
This right should not be infringed, rather it has to be protected by
Crl. Petition No. 1485-L of 2019
10
the act of Court otherwise it may frustrate the concept of safe
administration of criminal justice.
7.
The accumulative effect of the whole discussion and
while seeking guidance from the above referred case law, this Court
is of considered opinion that the petitioners have made out a case
for grant of extraordinary relief of pre-arrest bail, hence are squarely
entitled for the same. As a consequence this petition is converted
into appeal and allowed accordingly.
Judge
Lahore
07.07.2020
Approved for reporting.
Athar
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mushir Alam
Mr. Justice Yahya Afridi
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.149-K of 2020
(Against the judgment dated 26.08.2020 passed
by the High Court of Sindh, Karachi in Criminal
Bail Application No.S-100/2020)
Kamran Attaullah and another
…Petitioner(s)
Versus
The State
…Respondent(s)
For the Petitioner(s):
Mr. Aamir Mansoob Qureshi, ASC
with Kamran Attaullah and Anwar, in
person.
For the State:
Mr. Sajid Ilyas Bhatti,
Addl. Attorney General for Pakistan
Qaiser Masood, Addl. Director (Law) FIA
Khalid Naseem, Inspector, FIA Karachi
Shabbir Chandio, Inspector FIA Karachi
For the Complainant(s):
Barrister Afzal Hussain, ASC
along with Hasan Munawar, in person,
assisted by Arslan Binyamin, Advocate
Date of hearing:
29.09.2020.
ORDER
Qazi Muhammad Amin Ahmed, J.- Declined both by the
learned Special Judge Central-I Karachi as well as a learned Judge-in-
Chamber of the High Court of Sindh, petitioners, Deputy and Assistant
Directors in the Federal Investigation Agency, respectively, seek leave
of the Court for bail in anticipation to their arrest in a case registered
with F.I.A./ACC Karachi; they are accused to have received
gratification to the tune of rupees 24 millions from one Sheikh
Muhammad Munawar, arrayed as accused in a financial scam to
Crl. P. No.149-K of 2020
2
subtly defraud Utility Stores Corporation to effect a massive sale
transaction through a fake ISO certification. During the inquiry,
incriminatory statements of various witnesses were forensically
confirmed from the computer CDR and ledgers secured from the
custody of co-accused Abdul Qadir Memon, a front man in the
transaction; it was on the basis of this comprehensive probe that the
petitioners braced the impending prosecution.
2.
Heard. Record perused.
3.
A detailed parallel story related by the petitioners
notwithstanding, nonetheless, they were admittedly at the helm of
affairs to call the shot and thus in a position to rescue the complainant
from the troubled situation he was trapped; various pieces of evidence
including forensic data, beyond susceptibility of human interference,
unmistakably suggest a conduct perfidious to the call of their duty
hence, prima facie, cognizable. It is by now well settled that the
accused in a criminal case cannot be granted anticipatory bail to
subvert or undermine investigative procedure/process that essentially
include arrest in order to bring the statutory exercise to its logical end
for effective and meaningful prosecution of the offence through
collection of information/evidence consequent upon arrest. Mala fide,
manifestly intriguing upon the intended arrest, is the only justification
to suspend or divert the usual course of law, a step most extraordinary
by all means; it is not a case in hand. Petition fails. Leave declined.
Judge
Judge
Judge
Islamabad, the
29th September, 2020
Not approved for reporting
Ghulam Raza/-
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\ .
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
MR. JUSTICE MAZHAR ALAM IUMN MIANKHEL
MR. JUSTICE JAMAL KHAN MANDOKHAIL
Criminal Petition Nos.149-L & 150-L OF 2022
(On appeal against the judgment dated
24.12.2021 passed by the Lahore High Court,
La/wi-c in Cr!. Misc.Nos 27057-B of 2021)
I
Zaheer Ahmad (CrLf-' 149-L122)
Shiraz Ahmed 'CrLP.I50-11122
The State, etc. (in both cases)
For the Petitioner(s)
(in both cases)
For the State
For the Complainant
Petitioner(s)
VERSUS
Respondent(s)
Sh. Usman Karim-ud--Din, ASC
Miss Hina Jilani, ASC
Mr. Arshad Nazir Mirza, ASC
Mirza Mehmood Ahmed, ASC
Syed Nayyab Hussain Gerdezi, DAG
Mehrnood-uI-Hasan, D.D.(FJA)
Mudassar Shah, D.D. (HA)
Navced Aslam, S.I. (HA)
Mr. Muhammad Shahid Tasawar, ASC
Date of Hearing
2104.2022
ORDER
fviazliar Atarn Khan IVijankliel, J. Petitioners Shiraz
Ahinad and Zaheer Ahmed have impugned the order dated 24.12.2021,
whereby bail hi case FIR No. 88 dated 20.06.2019, offence under
sections 295-A, 298-C PPC and section 11 of the Prevention of
Electronic Crimes Act, 2016, (sections 295-B, 295-C, 34 and 109 PPC
added later on) was refused to them by the learned Lahore High Court,
Lahore.
Cr1s11149-L ISQ-L/2022
2
2. The allegation against the petitioners, as per contents of
FIR, is that they in collusion with their co-accused formed a WhatsApp
in the name of Sindh Salamat for propagation of Quadiani faith by
forwarding material and translation of Holy Quran proscribed by the
government. The complainant Muhammad Irfan alleged that the accused
had added him up in that WhatsApp soup with ulterior motive. On the
basis of material shared by the petitioners and received by the
complainant, the taller lodged a complaint with the FIA, whereupon an
enquiry was ordered to be conducted into the matter. Per FIR, on
27.062019, the PIA raided the house of Mehmood lqbal 1-Jashmi, co-
accused of the petitioners and arrested him while recovering his Cell No.
03009468153. It was found that proscribed translation of Holy Quran
was uploaded to Sindh Group from that mobile. Petitioner Shiraz Ahmed
was arrested from his village Chak Chatha, Tehsil and District
Hafizabad, where he was allegedly busy in his propagation. A cell phone,
laptop, proscribed books and certain other material was recovered from
him. During investigation of Shiraz Ahmed, he disclosed that it was
petitioner Zaheer Ahmed, who provided him banned content through
WhatsApp No. 03218808063. Zaheer Ahmed was already confined in
Camp Jail, Lahore in some other case. He was arrested in the instant case
on 27.02.2021.
3. Learned counsel for the petitioners contend that the very
antecedents of the complainant are not clean and he is used to of being an
accomplice in cases against the persons belonging to Ahmedis. To
substantiate the contention, they referred to case FIR No. 245 of 2037
dated 15.03.2017, wherein the complainant was a witness. They
3
01.,.) 4 9-L. & 150-1/2022
contended that name of petitioner Shiraz Ahmed, though, mentioned in
the FIR but no specific role has been assigned to him. According to
them, the name of petitioner Zahir Ahmed has not at all been mentioned
in the FIR and it seems that both the petitioners have been implicated in
this case only due to their religious beliefs. On merits, the learned
counsel argued that the enquiry into the matter started way back in 2019
and since then the personal cell phone of co-accused Mehrnood Jqbal
Hash'ni remained in the custody of FIA and there was likelihood of its
tampering in ordcr to connect and book the petitioners in this case.
According to them, Sindh Sa/amat Group was only meant for people
belonging to Quadiani faith and there were almost forty other persons as
members of the Group; that the petitioner Shiraz Ahmed was just one of
the Administrators of the group and he had nothing to do with sharing of
proscribed and banned material in that Group because every member of
the Group was free to share whatever he wanted. They maintained that
mischief of sections 295-A, 295-B and 295-C PPC and section 11 of
PECA are not at all attracted to the facts and circumstances of the present
case and those sections have been added in the FIR in order to bring the
ease of petitioners within prohibitory clause. It was further argued that at
the most, section 9 of the Punjab Holy Quran (Printing and Recording)
Ac, 2011 is attracted to the case of petitioners.
4. Learned counsel for the complainant and learned Deputy
Attorney General, on the other land, opposed the prayer of the
petitioners for bail and contended that there was sufficient incriminating
material in documentary shape available oil
to connect the
petitioners with [lie alleged olience; that forensic analysis of the cell
I
I SA 49-L , 150-112022
4
phones and material recovered from them was conducted and the report
of the forensic lab fully endorses the case of prosecution against the
petitioners; that the WhatsApp group formed by the petitioners was not
confined to Ahmedis community only and the inclusion of complainant
in that group shows that the group was being used for dissemination of
proscribed and banned material of the Abniedis community in public at
large; that the contention of learned counsel for the petitioners that
sections 295-A, 295-B, 295-C PPC and section 11 of PECA are not
attracted in the present case and case of the petitioners is covered under
section 9 of the Punjab Holy Quran (Printing and Recording) Act, 2011,
being a special law, is totally misconceived because the object and
purpose of latter law is obvious from its very preamble, wherein it is
mentioned that the law was promulgated to ensure error-free publication
of the Book and proper disposal of its damaged and worn out copies. He
added that perusal of the whole Qum Act would lead us to a conclusion
that it is meant for printers and publishers and not for ordinary accused.
To sum up the arguments, learned counsel for the complainant and
earned Law Officer stated that even otherwise all the contentions of
learned counsel for the petitioners amount to deeper appreciation of
evidence, which is not desirable at bail stage; that charge has already
been framed and it would be more appropriate to let the trial court decide
the case after scrutinizing evidence adduced by both the parties as any
observation at this stage by this Court on the contentions raised by the
petitioners would seriously prejudice the case of either of the party.
5. Heard the learned counsel for the parties and have perused
the available record. Petitioner Shiraz Ahmed is nominated in the FIR. It
n,sP.149L 15G-L/2022
5
has not been denied by the petitioners' side that petitioner Shiraz Ahmed
was one of the administrators of the WhatsApp Group Sindh Salamat
along with co-accused Mebmood lqbal Hashmi and forty other persons
were also members of the Group. During the course of arguments,
learned counsel for the complainant and learned Deputy Attorney
General have pointed out the proscribed book Rohani Khazain and
banned text and translation of Holy Qum shared in the Group Sindh
Salamat. The learned Law Officer under instructions of the investigating
officers present with record has confirmed that it was petitioner Zahir
Ahmed, who in his capacity as Secretary Wakalat_e-Tabsheer
disseminated banned material to petitioner Shiraz Ahmed and co-accused
Mehmood Iqbal Hashmi for further sharing with public at large. He also
used to provide derogatory books and guidelines to the petitioner Shiraz
Ahmad through a WhatsApp number, registered in his name. According
to the investigating officers, detailed forensic analysis of cell phones of
both the petitioners and co-accused Mehrnood Iqbal Hashmi was got
conducted by the HA and it was found that petitioner Shiraz Ahmed,
being one of the administrator of the Group, used to add and remove
persons not belonging to Ahmedis community in the group on the
instructions of petitioner Zahir Ahmed. In these circumstances, we are of
the view that apparently there is sufficient incriminating material
available on record connecting the petitioners with the commission of
alleged offence. So far as the other contentions of learned counsel for the
petitioners are concerned, suffice it to observe that at bail stage we are
not meant to dig deep into the evidence or to scrutinize factual aspects of
the case, which certainly is the responsibility of the trial court and
V
,-L & 150-112022
6
requires evidence to be adduced from both sides. In case this Court enters
into the realm of the trial court during bail stage, it would be
ciisadvantageous for both sides and would certainly prejudice the case of
either side. Therefore, we restrain ourselves from commenting on the
merits of the case and find that the petitioners at this stage are not
entitled for grant of bail.
6. For the foregoing, the instant criminal petitions having no
merit are dismissed and leave to appeal is refused.
At this stage, it has been observed by us that there are
certain observations in the impugned order, which have the tendency of
prejudicing the case of petitioners before the trial Court. Therefore, we
cxpect that trial of the case shall be conducted and concluded by the trial
Court strictly in accordance with law, without being
prejudiced/influenced by any observation contained in the impugned
order of the learned High Court.
AN:oUNCED IN OPEN COURT ON J 7 /o g/
7
rnbad,
APPROVED FOR REPORTING
esJ.
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE YAHYA AFRIDI
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
CRIMINAL PETITION NO. 150-L OF 2023
(On appeal against the order dated 20.01.2023 passed
by the Lahore High Court, Lahore in Crl. Misc. No. 3872-
B/2023)
Saad Zia
… Petitioner
Versus
The State etc
… Respondent
For the Petitioner:
Mr. Sahir Mehmood Bhatti, ASC along with
petitioner
For the State:
Mirza Abid Majeed, DPG
Mr. Saeed, SI
For the Complainant:
In person
Date of Hearing:
20.06.2023
ORDER
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through the instant petition under
Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the
petitioner has assailed the order dated 20.01.2023 passed by the learned
Single Judge of the learned Lahore High Court, Lahore, with a prayer to grant
pre-arrest bail in case registered vide FIR No. 79/2019 dated 14.02.2019
under Sections 302/324/148/149 PPC at Police Station Saddar Wazirabad,
District Gujranwala, in the interest of safe administration of criminal justice.
2.
Briefly stated the prosecution story as narrated in the crime
report is that on 14.02.2019, the complainant along with his sons went to a
marriage hall to attend marriage of his niece. While the complainant and his
sons were entering in the hall, the petitioner along with other co-accused
while armed with pistol, who were already sitting in the hall, raised lalkara to
kill them. The co-accused of the petitioner namely Qasim Ali and Ehtesham
made straight firing upon the complainant and his son, which landed on the
Criminal Petition No. 150-L/2023
2
neck of son and left foot of the complainant. The assailants also resorted to
indiscriminate firing due to which several other persons sustained injuries.
3.
At the very outset, it has been argued by learned counsel for
the petitioner that the petitioner has been falsely roped in this case against
the actual facts and circumstances. Contends that it is a case of two versions
squarely falling within the ambit of Section 497(2) Cr.P.C. Contends that
during investigation, the petitioner was found to be empty handed at the
time of occurrence and was placed in coloumn No. 2 in report under Section
173 Cr.P.C. Lastly contends that the learned High Court while declining bail to
the petitioner has not followed the guidelines issued by this Court for the
safe administration of criminal justice, therefore, the same may be set at
naught and the petitioner may be granted bail.
4.
On the other hand, learned Law Officer assisted by the
complainant in person opposed the petition by contending that the
petitioner has specifically been nominated in the crime report, further he
remained absconder for a considerable period of time, therefore, he does
not deserve any leniency from this Court.
5.
We have heard learned counsel for the parties at some length
and have perused the available record with their able assistance.
6.
As per the contents of the crime report, the allegation against
the petitioner is that he along with co-accused while armed with pistol
launched an attack on the complainant party and resorted to indiscriminate
firing due to which several persons sustained injuries. We have noticed that
though a generalized allegation of causing indiscriminate firing has been
alleged against the petitioner, however, during the course of investigation, it
transpired that the petitioner was empty handed at the time of occurrence
and he has not been ascribed any overt act. This opinion of the Police has not
been challenged, rather the petitioner was placed in coloumn No. 2 of the
report furnished under Section 173 Cr.P.C. This is established principle of law
that mere the fact that a person is nominated in the crime report does not
dub him as an accused unless and until during the course of investigation the
accusation against the said person is found to be correct. In a salutary
Criminal Petition No. 150-L/2023
3
judgment reported as F.B. Ali Vs. The State (PLD 1975 SC 506), this Court held
as under:-
“Mere lodging of information against a person does not make him an
accused nor can a person be called accused against whom
investigation is conducted by Police.”
7.
It is the stance of the petitioner that in-fact complainant party
was aggressor and two persons from the petitioner’s side sustained injuries
during the occurrence, which were suppressed by the complainant side. So
far as the argument of the learned Law Officer about the absconsion of the
petitioner is concerned, it is settled law that absconsion cannot be viewed as
a proof for the offence. In Rasool Muhammad Vs. Asal Muhammad (PLJ 1995
SC 477) this Court has held that mere absconsion cannot be made a ground
to discard the relief sought for as disappearance of a person after the
occurrence is but natural if he is involved in a murder case rightly or wrongly.
Reliance is also placed on Muhammad Tasaweer Vs. Hafiz Zulkarnain (PLD
2009 SC 53). It is an admitted position that the petitioner himself
surrendered before the law and joined investigation. In these circumstances,
it is the Trial Court, who after recording of evidence would decide about the
guilt or otherwise of the petitioner and till then the petitioner cannot be put
behind the bars for an indefinite period. This court has time and again held
that liberty of a person is a precious right, which cannot be taken away
merely on the basis of bald allegations. The petitioner is a student having no
criminal history and keeping him behind the bars with the hardened criminals
would not be in the interest of justice. It is now established that while
granting pre-arrest bail, the merits of the case can be touched upon by the
Court. Reliance is placed on Miran Bux Vs. The State (PLD 1989 SC 347), Sajid
Hussain @ Joji Vs. The State (PLD 2021 SC 898), Javed Iqbal Vs. The State (PLD
2022 SCMR 1424) & Muhammad Ijaz Vs. The State (2022 SCMR 1271). Taking
into consideration all the facts and circumstances stated above, we are of the
view that the case of the petitioner squarely falls within the ambit of Section
497(2) Cr.P.C. entitling for further inquiry into his guilt.
Criminal Petition No. 150-L/2023
4
8.
For what has been discussed above, we convert this petition
into appeal, allow it, set aside the impugned order and confirm ad interim
pre-arrest bail granted to the petitioner by this Court vide order dated
01.06.2023.
JUDGE
JUDGE
Islamabad, the
20th of June, 2023
Approved For Reporting
Khurram
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mazhar Alam Khan Miankhel
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No. 1515 of 2020
(Against
the
order
dated
04.12.2020
passed by the Peshawar High Court
Peshawar in Crl. MBA No.3532-P/2020)
Bilal Khan
…Petitioner(s)
Versus
The State
…Respondent(s)
For the Petitioner(s):
Mr. Aftab Khan, ASC
For the State:
Mr. Arshad Hussain, ASC
with Nasir Mehmood Inspector
Date of hearing:
25.01.2021.
ORDER
Qazi Muhammad Amin Ahmed, J.- On a tip off, Bilal
Khan, petitioner was apprehended on the wheel of car bearing
Registration No.LAR/983 at 10:45 a.m. on 14.10.2020 by a contingent
of Excise Police Station Peshawar; he was accompanied by Yasir Khan,
co-accused. Upon search 1200 grams of amphetamine/Ice, concealed
in a secret cavity was recovered.
2.
Heard. Record perused.
3.
Given
red-handed
arrest
of
the
petitioner
with
a
considerable quantity of a lethal contraband, confirmed by a positive
forensic report that brings the case within the remit of ‘Prohibition,
contemplated by section 51 of the Control of Narcotic Substances Act,
1997, petitioner’s claim of false implication is an issue that cannot be
attended without going beyond the scope of tentative assessment, a
venture prohibited by law. On our own analysis of the record, view
concurrently taken by the courts below is not open to exception.
Petition fails. Leave declined.
Judge
Judge
Islamabad, the
25th January, 2021
Not approved for reporting
Azmat/-
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Umar Ata Bandial
Mr. Justice Syed Mansoor Ali Shah
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.1549 of 2021
(Against the order dated 09.12.2021 passed by the Lahore High
Court Lahore in Crl.Misc. No.66270-B/2021)
Rashad Imran
…..Petitioner(s)
Versus
The State & another
…Respondent(s)
For the Petitioner(s):
Mr. Aftab Alam Yasir, ASC
Syed Rifaqat Hussain Shah, AOR
For the State:
Mr. Ahmad Raza Gillani,
Addl. P.G. Punjab
For Respondent No.2: In person
Date of Hearing
26.01.2022.
ORDER
Qazi Muhammad Amin Ahmed, J.- Apprehending arrest,
Rashid Imran, petitioner herein, after failure before the High
Court, seeks bail in anticipation thereto; he along with co-
accused was intercepted by a Veterinary Officer on 23.6.2021 at
9:00 p.m. with 500 k.g. beef and 60 k.g. mutton on a meatless
day. Upon inspection, the complainant found the confiscated
stuff cold on touch, dark reddish in texture emitting bad smell
and as such manifestly unfit for human consumption; it carried
fake stamps as deceit to suggest ante mortem slaughter. Upon a
complaint, the police registered a criminal case, subsequent
whereto, the impounded meat was destroyed with magisterial
intervention.
2.
Heard. Record perused.
3.
An inordinate stress laid by the learned counsel on
the vires of exercise undertaken by the Veterinary Officer Gojra,
notwithstanding, the seizure of substandard meat, grievously
Criminal Petition No.1549 of 2021
injurious for human consumption, on a meatless day i.e.
Wednesday is established through the inventories of even date.
Association of a Magistrate further lends credence to the
procedure adopted. Quantity of confiscation is too considerable
to be manipulated to set up a fake case, nor there appears any
earthly reason for the complainant, a State functionary tasked
with the responsibility of ensuring hygienic livestock supplies to
the public, to proceed against the petitioner with motives,
oblique or sinister, a sine qua non to suspend the mechanics of
criminal law that mandatorily requires arrest in cognizable
cases, scheduled as non-bailable. Petition fails. Leave declined.
Judge
Judge
Judge
Islamabad, the
26th January, 2022
Azma/-
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
MR. JUSTICE JAMAL KHAN MANDOKHAIL
MR. JUSTICE ATHAR MINALLAH
CRIMINAL PETITION NO. 1557 OF 2022
(On appeal against the order dated 28.11.2022 passed
by the High Court of Sindh, Circuit Court Hyderabad in
Crl. Bail Application No. S-1126/2022)
Gul Muhammad
… Petitioner
Versus
The State
… Respondent
For the Petitioner:
Mian Taj Muhammad Keerio, ASC
(Through video link from Karachi)
For the State:
Mr. Hussain Bux Baloch, Addl. P.G.
For the Complainant:
In person
Date of Hearing:
09.02.2023
ORDER
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through the instant petition under
Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the
petitioner has assailed the order dated 28.11.2022 passed by the learned
Single Judge of the learned High Court of Sindh, Circuit Court Hyderabad,
with a prayer to grant post-arrest bail in case registered vide FIR No. 26/2022
dated 28.07.2022 under Sections 302 / 324 / 337-A(i) / 337-F(i) / 337-H(ii) /
504 / 506 / 114 / 147 / 148 / 149 PPC at Police Station Nabi Sir Road, District
Umerkot, in the interest of safe administration of criminal justice.
2.
Briefly stated the allegation against the petitioner is that he
along with co-accused while armed with firearm launched an attack on the
complainant party. With the intention to kill, the petitioner made straight fire
from his pistol upon the complainant, which hit on his ear and shoulder. The
other co-accused made fires on Ghulam Abbas and Gul Bahar, nephew and
son of the complainant, due to which the said Ghulam Abbas died whereas
the son of the complainant sustained injury on his leg.
Criminal Petition No. 1557/2022
2
3.
At the very outset, it has been argued by learned counsel for
the petitioner that the petitioner has been falsely roped in this case against
the actual facts and circumstances. Contends that the crime report was
lodged after an inordinate delay of two days for which no plausible
explanation has been given. Contends that in-fact the complainant party was
aggressor and had caused injury on left arm of the petitioner due to which
his arm was amputated and a counter FIR has been registered against the
complainant party. Contends that it is a case of two version squarely falling
within the ambit of Section 497(2) Cr.P.C. Contends that the learned High
Court while declining bail to the petitioner has not followed the guidelines
issued by this Court for the safe administration of criminal justice, therefore,
the same may be set at naught and the petitioner may by released on bail.
4.
On the other hand, learned Law Officer opposed the petition by
contending that although the crime report was registered with an inordinate
delay of two days but there was no mala fide on the part of the complainant.
Contends that the petitioner has been specifically nominated in the crime
report with a specific role of firing at the complainant, therefore, he does not
deserve any leniency from this Court.
5.
We have heard learned counsel for the parties at some length
and have perused the available record with their able assistance.
As per the contents of the crime report, the allegation against
the petitioner is that he while armed with pistol .30 bore launched an attack
on the complainant party and made straight fire from his pistol on the
complainant, which hit on his ear and shoulder. However, it is stance of the
petitioner that in-fact the complainant party while armed with firearms came
at his village, attacked on him and caused injury on his left arm, due to which
his left arm has been amputated. The medical evidence available on record
prima facie supports the stance of the petitioner. The petitioner has also got
registered
a
counter
FIR
bearing
No.
27/2022
under
Sections
324/506(ii)/114/337-F(i)/337-H(ii)/504/34 PPC at Police Station Nabir Sir
Road, District Umerkot against the complainant party. In the instant case, the
crime report was lodged after an inordinate delay of two days for which not
Criminal Petition No. 1557/2022
3
even a single word has been put forward by the complainant. The delayed
registration of FIR prima facie shows deliberations and consultation on the
part of the complainant. According to Medico Legal Report of the injured PW
Usman, the injuries on his person have been declared as ghayr jaifah
mutalahimah and shajjah-i-khafifah falling within the ambit of Sections 337-
F(iii) and 337-A(i) PPC for which the maximum punishment provided under
the statute is three and two years respectively. However, we do not want to
comment on this aspect of the matter, lest it may prejudice the case of either
of the party before the Trial Court. It is the Trial Court who after recording of
evidence would decide about the guilt or otherwise of the petitioner and as
to whether Section 324 PPC is applicable or not. The petitioner is behind the
bars for the last more than five months. This court has time and again held
that liberty of a person is a precious right, which cannot be taken away unless
there are exceptional grounds to do so. Merely on the basis of bald
allegations, the liberty of a person cannot be curtailed. In these
circumstances, the petitioner has made out a case for bail as his case
squarely falls within the purview of Section 497(2) Cr.P.C. entitling for further
inquiry into his guilt.
6.
For what has been discussed above, we convert this petition
into appeal, allow it and set aside the impugned order. The petitioner is
admitted to bail subject to his furnishing bail bonds in the sum of
Rs.200,000/- with one surety in the like amount to the satisfaction of learned
Trial Court.
JUDGE
JUDGE
JUDGE
Islamabad, the
9th of February, 2023
Approved For Reporting
Khurram
|
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Sardar Tariq Masood
Mr. Justice Mazhar Alam Khan Miankhel
Mr. Justice Qazi Muhammad Amin Ahmed
Crl. Petition No.1581 of 2021
(Against the order dated 13.12.2021 passed by the Lahore High
Court, Rawalpindi Bench in Crl. A. No.2126-B and 2045-/2021)
Waqas Nazir and others
…Petitioner(s)
Versus
The State & another
…Respondent(s)
For the Petitioner(s):
Mr. Shaukat Aziz Siddiqi, ASC
Pir Muhammad Masood Chishti, ASC
Ch. M. Sasfdar Bhatti, ASC
Syed Rifaqat Hussain Shah, AOR
For the State:
Mr. Muhammad Jaffar,
Addl. P.G. Punjab with Muhammad
Saqlain Naeem, DSP, Zeeshan Haider,
SHO and M. Imran Khalid, ASI
For the Respondent(s): Malik Waheed Anjum, ASC
Date of Hearing
21.02.2022.
ORDER
Qazi Muhammad Amin Ahmed, J.:- Proceedings in a pre-
arrest bail petition, pending before a learned Additional Sessions
Judge at Rawalpindi, turned the District Court Complex into a battle
field between the two rival factions of property developers, at 8:15 a.m.
on 27.8.2021; both groups, each in numbers unusually large, took on
each other and in the process ransacked benches at the first floor as
well as nameplates of the Judges and used them as weapons of assault
on their opponents; they also dismantled plastic pipes of air
conditioners; the court staff attempted to intervene only to face their
wrath and then confined themselves behind the safety of close doors;
the Judges also retired after suspending the judicial work; a panic
gripped the premises amid multiple fire shots; a police contingent
detached at the court complex intervened and apprehended many of
Crl. P. 1581/2021 2
them at the spot. A criminal case was registered wherein both sides
were arrayed side by side; present petitioners belong to one of them
and seek bail after denial by a learned Judge-in-Chamber vide
impugned order dated 13.12.2021, leave to appeal wherefrom is prayed
for on the grounds that all the offences, based upon general
allegations, are scheduled as bailable and that mischief of section 7 of
the Anti Terrorism Act, 1997 is not attracted to the facts and
circumstances of the case as the only injury sustained by one of the
Advocates
is
designated
as
Shajjah-i-Khafifah
within
the
contemplation of section 337 A(i) of the Pakistan Penal Code, 1860.
Continuous detention, by now exceeding six months in judicial lock
up, is serving no useful purpose, a circumstance to be thoughtfully
viewed by the Court, concluded the learned counsel. The learned Law
Officer has defended the view taken by the High Court, in its
discretion, being well within the remit of law.
2.
Heard. Record perused.
3.
Pendency of an ad-interim pre arrest bail in a case of
homicide before a learned Additional Sessions Judge on the eventful
day is a common ground and so is assembly of a large number of
supporters of each side in the court premises for purpose no other
than to flex their muscles. Recovery memos confirm seizure of crime
empties as well as two vehicles carrying offensive weapons with
munitions right from inside the court premises. Damaged nameplates,
broken benches and other installations removed during the occurrence
are also part of the inventory. We entertain no manner of doubt that it
was beginning of a day in District Courts Rawalpindi far from usual,
disruptive and awe-inspiring, for which both sides, bracing each other
in a large number of cases, cannot conveniently shield themselves
behind a bald denial.
District/Trial Courts constitute a most important tier of our
judicial system; here parties brace each other face to face at close
blank with the Judge and advocates within physical reaches; these
temples of justice, by necessary implications, are required to be most
guarded by law; it is essential that all those who man the first rung of
judicial ladder attend their pursuits with the satisfaction of being safe
and secure; it is equally important that even the mightiest cannot dare
to contemplate a transgression without a backlash sanctioned by law
Crl. P. 1581/2021 3
and, thus, we find the High Court wise and conscionable in its
discretion to disallow the motions.
We do not consider it expedient to comment upon the argument
relating to the suggested non-applicability of penal provisions invoked
by the prosecution, a business to be best settled by the trial Court on
the strength of material/evidence before it, uninfluenced by the issue
specific observations recorded hereinabove. Even otherwise, the
Supreme Court seldom interferes with exercise of discretion in bail
matters, that too, in cases of denials, manifestly untenable, not the
one in hand. Petition fails. Leave declined.
Judge
Judge
Judge
Islamabad, the
21st February, 2022
Azmat/-
|
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Umar Ata Bandial, CJ
Mr. Justice Munib Akhtar
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.1596 of 2021
(Against the order dated 30.6.2021 passed by the High Court of
Balochistan in Cr. A. No.175-2014)
Shams ul Islam Khan
…..Petitioner(s)
Versus
Azhar Ahmed Khan and another
…Respondent(s)
For the Petitioner(s): Mr. Naeem Bokhari, ASC
For the State:
Syed Pervaiz Bokhari, Addl. P.G.
Balochitan
For Respondent No.1: In person.
Date of Hearing
07.02.2022.
ORDER
Qazi Muhammad Amin Ahmed, J.- The petitioner is
in receipt of a guilty verdict returned by the learned Addl.
Sessions Judge-IV Quetta in a complaint instituted by Azhar
Ahmed Khan, no other than his paternal nephew; he alongside
his brother Saif-ul-Islam Khan, since dead, was indicted for
depriving female legatees from their shares in the legacy.
Convicted under sections 466, 467, 474 and 498-A read with
section 34 of the Pakistan Penal Code, 1860, they were to periods
of imprisonments ranging from 5 to 10 years with direction to pay
fine; sentences to be commuted concurrently, pre-trial period
inclusive, vide judgment dated 20.6.2014. The High Court of
Balochistan reduced quantum of sentence under section 498-A to
5-years whereas on the remainder counts, to 1-year, vide
judgment dated 30.6.2021, leave to appeal wherefrom has been
prayed for on the grounds that there was no occasion for the High
Court to decline petitioner’s appeal inasmuch as the prosecution
had failed to come up with “proof beyond doubt” before the
learned trial Court; it is next argued that the fate of indictment is
Cr.P. 1596/2021.
decisively linked with the outcome of civil litigation still raging
between the parties. It is lastly argued that both the Court
escaped notice of Criminal Law (Third Amendment) Act 2011 that
inserted Chapter XX-A in the Pakistan Penal Code incorporating
section 498-A w.e.f. the 28th of December, 2011, and, thus, the
petitioner, according to prosecution’s own case, has been
convicted in violation of Constitutional protection against
retrospective punishment. Contentions raised need consideration.
Leave is granted. Notice shall issue to the State.
Chief Justice
Judge
Judge
Islamabad, the
7th February, 2022
Azmat/-
|
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"url": ""
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|
In the Supreme Court of Pakistan
(Appellate Jurisdiction)
Present:
Mr. Justice Anwar Zaheer Jamali
Mr. Justice Dost Muhammad Khan
Mr. Justice Umar Ata Bandial
Crl.P.L.A. No.15 of 2015
(On appeal from judgment of Peshawar High Court,
Peshawar dated 8.12.2014 passed in Crl. Misc. (BA) of 2014)
Socha Gul
Petitioner
Versus
The State
Respondents
For the petitioner:
Mr. Arshad Hussain Yousafzai, ASC
Syed Rifaqat Hussain Shah, AOR.
For the State/ANF:
Nemo.
On Court Notice:
Mr. Sajid Ilyas Bhatti, DAG.
Date of hearing:
27.3.2015
Judgment
Anwar Zaheer Jamali, J – Petitioner, Socha Gul, who is
one of the nominated accused in crime No.91 dated 30.9.2014, Police
Station ANF, District Peshawar, for commission of offence under
section 9(c) of the Control of Narcotic Substances Act, 1997 (“CNS Act
of 1997”), with the allegation that, upon spy information, when he was
apprehended by the personnel of Anti-Narcotic Force, upon his
personal search, four kilograms charas was recovered from his
possession; was refused bail by the learned Judge, Special Court
(CNS), Khyber Pakhtunkhwa, Peshawar, vide order dated 15.10.2014.
Thereafter he moved Criminal Miscellaneous (BA) No.1716-P of 2014
before the Peshawar High Court, Peshawar, with the prayer for grant
of bail in the said crime, but it was also declined, vide impugned order
dated 8.12.2014.
Crl. P. No.15 of 2015
2
2.
We have heard the learned ASC for the petitioner. He
contends that petitioner, who has his employment abroad, had
returned to Pakistan only three weeks before the date of alleged
occurrence and has been falsely implicated in the commission of crime
by the ANF Police. In such circumstances, following the ratio of
judgment in the case of Jamal-ud-Din alias Zubair Khan versus the
State (2012 SCMR 573), qua the quantity of narcotic substance
allegedly recovered from him, having remained in custody for over five
months, he is entitled for grant of bail.
3.
We have perused the case record and seen that the
offence, for which the petitioner has been charged, falls under section
9(c) of CNS Act of 1997, as the quantity of narcotic substance (charas)
recovered from his possession is four kilograms. The samples of charas
contained in four packets were separately taken, sealed on the spot,
and report of Forensic Science Laboratory has been received in the
positive. In such circumstances, at this stage no case for grant of bail
is made out, merely for the reason that in the case of Jamal-ud-Din
(supra) the honourable two member Bench of this Court has admitted
the accused to bail with the observation that, while hearing a petition
for grant of bail, the Court is not to keep in view the maximum
sentence provided by the statute for the charged offence, but the one
which is likely to be entailed.
4.
In the present case, the accused is charged with the
commission of offence under section 9(c) of CNS Act of 1997, which
reads as under:-
“9. Punishment for contravention of Sections 6, 7 and 8.--- Whoever
contravenes the provisions of Section 6, 7 or 8 shall be punishable with:-
Crl. P. No.15 of 2015
3
a. imprisonment which may extent to two years, or with fine, or
with both, if the quantity of the narcotic drug, psychotropic
substance of controlled substance is ten grams or less;
b. imprisonment which may extend to seven years and shall also
be liable to fine, if the quantity of the narcotic drug,
psychotropic substance or controlled substance exceeds one
hundred grams but does not exceed one kilogram;
c.
death, or imprisonment for life, or imprisonment for a term
which may extend to fourteen years and shall also be liable to
fine which may be upto one million rupees, if the quantity of
narcotics drug, psychotropic substance or controlled substance
exceeds the limits specified in clause (c):
Provided that, if the quantity exceeds ten kilograms the punishment
shall not be less than imprisonment for life.
5.
From the above reproduction, intent and scheme of
the legislator is quite clear about the quantum of prescribed
punishment under section 9(c) (ibid), which could be either death or
imprisonment for life or an imprisonment for a term which may extent
to fourteen years, in addition to fine upto one million rupees. In our
opinion, in such circumstances, neither categorization of sentencing
nor any guess work or speculative exercise could be undertaken by the
Court at bail stage to enlarge an accused on bail in such crimes, which
will amount to pre-empting the mind of the trial Court, controlling its
powers in the matter of sentencing an accused and determining the
quantum of sentence upon his conviction.
6.
In the case of Ghulam Murtaza versus the State (PLD
2009 Lahore 362), which is an order in a reference arising out of an
appeal under the CNS Act 1997, and is frequently referred in the
context of sentencing the accused convicted under CNS Act of 1997,
Crl. P. No.15 of 2015
4
inter alia, keeping this aspect in mind, the larger Bench of the Lahore
High Court, while categorizing the sentences of an accused on the
criteria of nature of narcotic substance recovered and its quantity, has
aptly observed as under:-
“10.
It goes without saying that in a particular case carrying some
special features relevant to the matter of sentence a Court may depart
from the norms and standards prescribed above but in all such cases
the Court concerned shall be obliged to record its reasons for such
departure.”
7.
Again, in the case of Nadeem Ashraf versus State (2013
SCMR 1538), making reference to the judgment in the case of Ameer
Zeb versus State (PLD 2012 S.C. 380), in a narcotics case, while
refusing bail, the issue of quantity of recovered narcotics substance
qua method/mode of its sampling and its relevancy at bail stage has
been dilated by the Court in the following words:-
“4.
Admittedly the trial has yet to commence and it would be
rather presumptuous on the part of the petitioner to infer that
the prosecution would lead evidence only to the extent of the
weight to which reference has been made by the petitioner’s
learned counsel. It is always open for the parties and in this
case for the prosecution to lead further evidence and to request
the court that it be allowed to send the entire narcotics
allegedly recovered from the petitioner for chemical analysis.”.
8.
It is pertinent to mention here that offences punishable
under CNS Act of 1997 are by its nature heinous and considered to be
the offences against the society at large and it is for this reason that
the statute itself has provided a note of caution under section 51 of
CNS Act of 1997 before enlarging an accused on bail in the ordinary
course. When we refer to the standards set out under section 497
Cr.P.C. for grant of bail to an accused involved in an offence under
Crl. P. No.15 of 2015
5
section 9(c) of CNS Act of 1997, even on that basis we find that an
accused charged with an offence, prescribing various punishments, as
reproduced above, is not entitled for grant of bail merely on account of
the nature or quantity of narcotic substance, being four kilograms.
Firstly, as deeper appreciation of evidence is not permissible at bail
stage and secondly, in such situation, looking to the peculiar features
and nature of the offence, the trial Court may depart from the normal
standards prescribed in the case of Ghulam Murtaza (supra) and award
him any other legal punishment. Thus, in our opinion, ratio of
judgment in the case of Ghulam Murtaza (supra) is not relevant at bail
stage.
9.
For the foregoing reasons, leave is refused and this
petition is dismissed.
Islamabad,
27th March, 2015
Approved for reporting.
Riaz
Judge
Judge
Judge
|
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE IJAZ UL AHSAN
MR. JUSTICE MUNIB AKHTAR
MR. JUSTICE SAYYED MAZAHAR ALl AKBAR NAUVI
CRIMINAL PETITION NO. 1603-L OF 2021
(On appeal against the order dated 09.112021 passed
by the Lahore High Court, Lahore in Criminal Appeal
No. 7301/2021)
Muhammad Arshad
Petitioner
Versus
The State and Babar Abbas
...Respondent(s)
For the Petitioner:
Mr. Mushtaq Ahmed Mohal, ASC
(through video link from Lahore)
For the State: Mirza Muhammad Usman, DPG
For the Respondent (2): Mrs. Nighat Saeed Mughal, ASC a/w Babar
Abbas (via video link from Lahore)
Date of Hearing:
13.04.2022
JUDGMENT
SAYVED MAZAHAR ALl AKBAR NAQVI, J. Through the instant petition under
Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the
petitioner has assailed the order dated 09,11,2021 passed by the learned
Single Judge of the Lahore High Court, Lahore, whereby the application for
suspension of sentence filed by the respondent was allowed and he was
granted bail.
2. Briefly stated the facts of the matter are that the respondent
Babar Abbas along with two co-accused was tried by the learned Trial Court
pursuant to a case registered vide FIR No. 529/2019 dated 07.09.2019 under
Sections 302/148/149 PPC at Police Station Cantt, Gujranwala for committing
murder of Munawar Hussain, brother of the complainant. The learned Trial
Court vide its judgment dated 22.12.2020 while acquitting the co-accused,
Criminal Petition No. I 603-L/2022
-: 2
convicted the respondent under Section 302(b) PPC and sentenced him to
imprisonment for life along with payment of compensation of Rs.500,000/-
payable to the legal heirs of the deceased or in default whereof to further
undergo six months SI. Against the said judgment, the respondent filed
Criminal Appeal No. 7301/2021 before the learned Lahore High Court.
However, during the pendency of the said appeal, he filed Criminal Misc. No.
01/2021 under Section 426 Cr.P.C. seeking suspension of his sentence, which
has been allowed vide impugned order, Hence, this petition filed by the
petitioner/complainant seeking leave to appeal.
3.
At the very outset, it has been argued by learned counsel for
the petitioner that the impugned order amounts to deeper appreciation of
the merits of the case, which is not permissible at the time of hearing an
application for suspension of sentence. Contends that the respondent was
found guilty by the learned Trial Court after recording of evidence and mere a
minor contradiction in the statement of the eye-witnesses does not absolve
him of his criminal liability. Contends that the respondent had actively
participated in the occurrence, therefore, he cannot be enlarged on bail.
Lastly contends that the impugned order is the result of misreading and non-
reading of evidence and is not sustainable in the eyes of law.
4.
On the other hand, learned counsel for the respondent No. 2
while defending the impugned order contended that there are major
contradictions in the statements of the prosecution witnesses and medical
evidence, which have rightly been taken note of by the learned High Court
while handing down the impugned order. Contends that though deeper
appreciation is not permissible while suspending the sentence, however, in
the interest of justice where the case is wide open then it is incumbent upon
the court to decide the us on the basis of material available on the record.
Contends that the case of prosecution is advanced by Waqas Ali (PW-8) and
Muhammad Arshad, complainant (PW-9) and they have made improvements
in their statements, which is clear cut deviation from the original stance and
as such the benefit of the same can be extended in favour of the respondent.
Contends that there was specific allegation of causing firearm injuries by the
three assailants but as per the medical record the deceased sustained only
Criminal Petition No. I 603-L/2022
-:3:-
one injury and that has been made basis by the learned High Court while
suspending the sentence and the same is in accordance with the dictates of
justice.
5. We have heard learned counsel for the parties at some length
and have perused the record with their able assistance
The learned High Court while suspending the sentence inflicted
upon the respondent No. 2 by the learned Trial Court mainly observed that
according to the crime report, the respondent along with two co-accused
while each armed with 30 bore pistol had made three separate fire shots
upon the person of the deceased, which landed on his belly but the assertion
of the prosecution witnesses is contradicted by Dr. Azhar Ali Khan (PW-7),
according to whom, the deceased sustained only one injury on his belly.
During course of trial while appearing as PW-8 and PW-9, both the
prosecution witnesses namely Waqas Ali and complainant Muhammad
Arshad had improved their earlier stance and stated that it was only the
respondent whose fire landed on the belly of the deceased. The possibility
cannot be ruled out that the prosecution witnesses deviated on the advice of
the counsel or otherwise, therefore ) the same cannot be made basis to keep
a person behind the bars for indefinite period especially when the
Investigating Officer has candidly stated that the empties recovered from the
place of occurrence had not been fired by the pistol allegedly recovered at
the instance of the respondent. It is now established beyond any doubt that
benefit of doubt can be extended even at preliminary stage i.e. bail &
suspension of sentence The learned High Court while suspending the
sentence had taken note of this fact coupled with the fact that there is
previous enmity between the parties as earlier the deceased was involved by
the respondent in a case bearing FIR No. 469/2019 under Sections
324/148/149 PPC. Even otherwise, while drawing analogy with the well
settled law that the principles for grant of bail and cancellation whereof are
entirely on different footing, the case of the petitioner can be adjudged
within the parameters enunciated by this Court from time to time. All these
facts and circumstances when evaluated conjointly, compel this Court to
come to the conclusion that the learned High Court while suspending the
-I I
Criminal Petition No. 3603-1/2022
-:4:-
sentence had taken care of justiciable facts and circumstances and no
exception can be taken contrary to what has been observed by the High
Court in the order impugned before us. As a consequence, this petition
having no merit is accordingly dismissed and leave to appeal is refused,
Islamabad, the
13th of April, 2022
Approved For Reporting
MM
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mazhar Alam Khan Miankhel
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition Nos.1612 of 2021
(Against the judgment dated 13.12.2021 passed by the Peshawar High Court
Peshawar in Crl. M. (BA) No.4124-P/2021))
Noor Wali and another
…Petitioner(s)
Versus
The State and another
…Respondent(s)
For the Petitioner(s):
Mr. Hussain Ali, ASC
Mr. Anis Muhammad Shahzad, AOR
For the State:
Mr. Shumayl Aziz,
Add. Advocate General KP
Date of Hearing:
16.02.2022.
ORDER
Qazi Muhammad Amin Ahmed, J.:- A contingent of
Pakistan Customs, on a tip off, signaled a Lahore bound bus to halt
at the check post within the precincts of Police Station Chamkani
Peshawar; it was being escorted by the assailants riding on two
vehicles; they ran over the contingent as a result whereof Mian Irfan
Ullah, 27, sustained serious injuries, subsequently proved fatal. The
assailants took to the heels, however, the petitioners were
apprehended by a police party arrived at the scene pursuant to
information; they have been denied bail, lastly by a learned Judge-
in-Chamber of the Peshawar High Court Peshawar vide impugned
order dated 13.12.2021, leave to appeal wherefrom is being prayed
for on a variety of grounds.
2.
Heard. Record perused.
3.
We are not impressed by the argument that Irfan Ullah
Constable was accidently run over by the speeding vehicle as the
Custom Authorities in anticipation to arrival of the said vehicle with
Crl Petition No.1612/2021
smuggled contraband on board had set up a blockade, calculatedly
breached by the petitioners by running over a State functionary,
standing in the line of duty, a criminal transgression with
consequences most serious. The smuggled items, taken into
possession in the wake of gory incident, in retrospect, lends credible
support to the prosecution case, set up in the crime report. Material
collected by the prosecution constitute “reasonable grounds” within
the contemplation of section 497 of the Code of Criminal
Prosecution, 1898 standing insurmountably in impediment to their
release on bail, in the absence of any consideration calling for
further probe. View concurrently taken by the Courts below being
well within remit of law calls for no interference. Petition fails. Leave
declined.
Judge
Judge
Islamabad, the
16th February, 2022
Azmat/-
|
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE YAHYA AFRIDI
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
CRIMINAL PETITION NO. 1617 OF 2022
(On appeal against the order dated 17.11.2022
passed by the Islamabad High Court, Islamabad in
Criminal Revision No. 99/2022)
Gufran Ali
… Petitioner
Versus
Haseeb Khan and another
… Respondents
For the Petitioner:
Mr. Khalil-ur-Rehman Abbasi, ASC
For the Respondents:
N.R.
Date of Hearing:
23.05.2023
ORDER
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through the instant petition
under Article 185(3) of the Constitution of Islamic Republic of Pakistan,
1973, the petitioner has assailed the order dated 17.11.2022 passed by
the learned Single Judge of the learned Islamabad High Court, Islamabad,
vide which the order dated 02.11.2022 passed by the learned Additional
District & Sessions Judge-IV, East-Islamabad was upheld.
2.
Briefly stated the facts of the matter are that the respondent
No. 1 Haseeb Khan was proceeded against in terms of the case registered
vide FIR No. 853/2021 dated 02.10.2021 under Section 302 PPC at Police
Station Koral, Islamabad, for committing murder of Raja Nadeem Ghalib,
paternal cousin of the petitioner/complainant. Pursuant to an application
submitted by the respondent No. 1, the learned Trial Court vide order
dated 02.11.2022 declared the respondent No. 1 juvenile at the time of
commission of the offence. Being aggrieved, the petitioner/complainant
filed Criminal Revision before the learned Islamabad High Court but it also
met the same fate vide impugned order. Hence, this petition.
Criminal Petition No. 1617/2022
2
3.
At the very outset, it has been argued by learned counsel for
the petitioner that there is a conflict regarding the date of birth of the
respondent-accused i.e. according to NADRA record, his date of birth is
14.07.2005 whereas the certificate issued by Secretary Union Council
Naryab, Hangu shows his date of birth as 06.03.2007. Contends that the
learned courts below overlooked the report of the Medical Board wherein
according to Radiology Department the age of the accused was shown as
18 to 20 years whereas according to Dental Department, the age of the
accused was 16 to 18 years. Lastly contends that the learned Trial Court
ought to have called the members of the Medical Board and cross-
examine them before arriving at the conclusion. In support of the
contentions raised, learned counsel placed reliance on Muhammad Aslam
Vs. The State (PLD 2009 SC 777).
4.
We have heard learned counsel for the petitioner at some
length and have perused the available record.
5.
Ordinarily, the date of birth of a person is determined on the
basis of documentary proof i.e. birth certificate, educational documents
and National Identity Card etc but when the date of birth is disputed and
varies on all such documents then the ossification test is the best way to
determine a person’s age. The ossification test is a test that determines
age based on the “degree of fusion of bone” by taking the x-ray of a few
bones. In simple words, the ossification test or osteogenesis is the process
of the bone formation based on the fusion of joints between birth and the
age of twenty five years in an individual. Bone age is an indicator of the
skeletal and biological maturity of an individual which assists in the
determination of age. The ossification test varies slightly based on
individual characteristics such as climatic conditions where the person
born and raised, dietic values, hereditary differences etc. In the present
case, there was a conflict between the Birth Registration Certificate issued
by the Secretary Union Council Naryab, Hangu and the NADRA record
regarding the date of birth of the respondent No. 1. In this backdrop, the
learned Trial Court rightly constituted a medical board to examine the
Criminal Petition No. 1617/2022
3
respondent-accused. We have perused the report submitted by the
medical board. The report consists of three opinions of (i) Radiology
Department, (ii) General Medicine Department and (iii) Dental
Department. Although the age of the respondent was found to be 18 to 20
years and 16 to 18 years by the two departments but it is settled principle
of law that if two views are possible from the evidence adduced in the
case then the view favourable to the accused is to be adopted. Reliance is
placed on Saghir Ahmed Vs. State (2023 SCMR 241) and Sahib Ullah Vs.
The State (2022 SCMR 1806). During the course of arguments, learned
counsel repeatedly argued that the actual date of birth of the respondent
was according to NADRA record i.e. 14.07.2005. However, even if the date
of birth of the respondent as per the NADRA record is considered to be
true, his age was 16 years 02 months and 19 days at the time of
commission of the crime, therefore, in all eventuality he was a juvenile at
that time. So far as the case law relied upon by the learned counsel for the
petitioner is concerned, the same is distinguishable as in the case of
Muhammad Aslam supra, no ossification test of the accused was
conducted and the learned courts below had decided the issue of age of
the accused on the basis of School Leaving Certificate and the Birth
Register. This Court held that “whenever such a question of age is raised
or arises at the trial, the courts should not deal with the same in a
cursory or in a slip-shod manner but must proceed to hold an inquiry in
the matter as commanded by the provisions of section 7 of the Juvenile
Justice System Ordinance including medical examination of the accused
for the purpose.” As per Section 510 Cr.P.C. the report of the expert in
various fields of science can be produced in evidence without calling
them and can be used as evidence in any inquiry or trial or other
proceedings. The learned High Court has correctly appreciated the
material aspects of the case and the conclusions drawn are in line with the
guidelines enunciated by this Court on the subject. Learned counsel for the
petitioner has not been able to point out any legal or factual error in the
impugned judgment, which could be made basis to take a different view
from that of the learned High Court.
Criminal Petition No. 1617/2022
4
6.
For what has been discussed above, we do not find any merit
in this petition, which is dismissed and leave to appeal is refused. The
above are the detailed reasons of our short order of even date.
JUDGE
JUDGE
Islamabad, the
23rd of May, 2023
Approved For Reporting
Khurram
|
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
MR. JUSTICE JAMAL KHAN MANDOKHAIL
MR. JUSTICE ATHAR MINALLAH
CRIMINAL PETITION NO. 1619 OF 2022
(On appeal against the order dated 08.12.2022
passed by the Lahore High Court, Lahore in Crl. Misc.
No. 71061-B/2022)
Abdul Rehman @ Muhammad Zeeshan
… Petitioner
VERSUS
The State and others
… Respondents
For the Petitioner:
Ch. Muhammad Ashraf Jalal, ASC with
petitioner
(via video link from Lahore)
Mr. Anis Muhammad Shahzad, AOR
For the State:
Ch. Muhammad Sarwar Sidhu, Addl. P.G.
Mr. Muhammad Nadim, DSP
Mr. Muhammad Ashraf, SI
Date of Hearing:
02.02.2023
ORDER
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through the instant petition
under Article 185(3) of the Constitution of Islamic Republic of Pakistan,
1973, the petitioner has assailed the order dated 08.12.2022 passed by
the learned Single Bench of the Lahore High Court, Lahore, with a prayer
to grant pre-arrest bail in case registered vide FIR No. 213 dated
07.09.2022 under Sections 337-A(ii)/337-L(ii)/147/149 PPC at Police
Station Shah Gareeb, District Narowal, in the interest of safe
administration of criminal justice.
2.
Briefly stated the allegation against the petitioner is that he
while armed with ‘churri’ assaulted upon the complainant and gave him a
blow on the left side of the head of the complainant.
CRIMINAL PETITION NO. 1619 OF 2022
2
3.
At the very outset, it has been contended by the learned
counsel for the petitioner that the petitioner has been falsely roped in this
case against the actual facts and circumstances. Contends that the FIR was
lodged with an inordinate delay of five days, which shows that the same
was lodged after deliberation and consultation. Contends that the case
against the petitioner is false, fabricated, fictitious and based on ulterior
motives and mala fide intentions. Further contends that the co-accused of
the petitioner, who were ascribed the similar role, have been granted pre-
arrest bail by the learned Trial Court, therefore, following the rule of
consistency the petitioner also deserves the same treatment to be meted
out. Lastly contends that the impugned order is against the law and facts,
as such, the same is not maintainable and is liable to be set at naught.
4.
On the other hand, learned Law Officer has defended the
impugned order. It has been contended that the petitioner has specifically
been nominated in the crime report and a specific allegation of causing
injury on the person of the complainant has been leveled against him,
therefore, he does not deserve any leniency from this Court.
5.
We have heard learned counsel for the parties at some
length and have perused the available record.
As per the contents of the crime report, the petitioner along
with co-accused while armed with ‘churri’ assaulted upon the complainant
and gave him a blow on the left side of the head. The crime report was
lodged after an inordinate delay of five days for which not even a single
word has been put forward by the complainant. The delayed registration
of FIR prima facie shows deliberations and consultation on the part of the
complainant. We have been informed that co-accused of the petitioner,
who were specifically named in the crime report, have been granted pre-
arrest bail by the learned court of competent jurisdiction. Keeping in view
the peculiar facts and circumstances of the present case, the possibility
cannot be ruled out that the petitioner has been involved in the case by
throwing a wider net by the complainant especially when it is the case of
the petitioner that the FIR was registered against one Zeeshan but the
CRIMINAL PETITION NO. 1619 OF 2022
3
name of the petitioner has subsequently been added portraying him as
Abdul Rehman alias Muhammad Zeeshan. However, we do not want to
give any finding on this aspect of the matter, lest it may prejudice the case
of either of the parties before the Trial Court. It is the Trial Court, who
after recording of evidence would decide about the guilt or otherwise of
the petitioner and till then the petitioner cannot be put behind the bars
for an indefinite period. This court has time and again held that liberty of a
person is a precious right, which cannot be taken away. Merely on the
basis of bald allegations, the liberty of a person cannot be curtailed. The
petitioner is a young man having no criminal history and keeping him
behind the bars with the hardened criminals would not be in the interest
of justice. It is now established that while granting pre-arrest bail, the
merits of the case can be touched upon by the Court. Reliance is placed on
Miran Bux Vs. The State (PLD 1989 SC 347), Sajid Hussain @ Joji Vs. The
State (PLD 2021 SC 898), Javed Iqbal Vs. The State (PLD 2022 SCMR 1424)
& Muhammad Ijaz Vs. The State (2022 SCMR 1271). Taking into
consideration all the facts and circumstances stated above, we are of the
view that the case of the petitioner squarely falls within the ambit of
Section 497(2) Cr.P.C. entitling for further inquiry into his guilt.
6.
For what has been discussed above, we convert this petition
into appeal, allow it, set aside the impugned order and confirm ad interim
pre-arrest bail granted to the petitioner by this Court vide order dated
04.01.2023.
JUDGE
JUDGE
JUDGE
Islamabad, the
2nd of February, 2023
Approved For Reporting
Khurram
|
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
MR. JUSTICE UMAR ATA BANDIAL
MR. JUSTICE FAISAL ARAB
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
CRIMINAL PETITION NO.163 OF 2020
(Against the order of the Lahore High Court, Lahore dated
28.01.2020 passed in Crl. Misc. No.49574-TA of 2019)
Muhammad Sultan
:
… Petitioner
Versus
Muhammad Raza & others
:
… Respondents
For the Petitioner
:
Chaudhary Abdul Khalid Thind, ASC
Syed Rafaqat Hussain Shah, AOR
For the (State)
:
N.R
Date of Hearing
:
12.06.2020
JUDGMENT
SAYYED MAZAHAR ALI AKBAR NAQVI, J:- Criminal
petition under Article 185(3) of the Constitution of Islamic Republic of
Pakistan, 1973 has been filed, seeking leave to appeal against the order
dated 28.01.2020 of Lahore High Court, Lahore in Crl. Miscellaneous
No.49574-TA/2019 in the interest of safe administration of criminal justice.
2.
The facts necessitated to file instant petition are that petitioner
lodged a “complaint” against the respondents titled as:-
“Muhammad Sultan vs, Sabir Hussain and 14 others”
before the learned Addl: Sessions Judge, Tala Gang, District Chakwal.
The said “complaint” was filed with the allegation of extra-judicial killing of
son of the petitioner by the respondents who are police officials under
section 302/364/109/149 PPC read with section 156 of Police Order 2002.
The learned trial court took the cognizance of the offence and as such
Criminal Petition No.163/2020
-:2:-
issued process against the respondents. During pendency of the aforesaid
“complaint”, the respondents moved an application before Lahore High
Court, Lahore under section 526/561-A Cr.P.C with a prayer to transfer
the trial of said “complaint” from the court of learned Addl: Sessions
Judge, Tala Gang to any other court of competent jurisdiction at Lahore.
The said application was adjudicated and it was allowed by a Single
Bench of High Court vide order dated 28.01.2020. The learned Single
Bench ordered to withdraw the trial of the said “complaint” from the court
of learned Addl: Sessions Judge, Tala Gang, to be entrusted to learned
Addl: Sessions Judge-I, Lahore.
3.
Perusal of the “complaint” lodged by the petitioner discloses
that the petitioner who himself is resident of District Sargodha was having
close ties with the respondent No.1 however the relations became
strained due to reasons substantiated in the aforesaid “complaint”. As per
allegations contained in “complaint”, it is alleged that on 26.06.2013 at
about 12:00 (midnight), two sons of the petitioner namely Muhammad
Nasir and Muhammad Tariq were taken into custody by a raiding party
comprises of police officials arrayed as respondents No.1 to 14 from Chak
No.17 North, Tehsil Bhalwal District Sargodha. Muhammad Asif, third son
of the petitioner was also taken into custody by the respondents on
26.06.2013 at about “Fajr Wala” from the precincts of village Malikwal
adjacent to Tala Gang. In this connection, a Writ Petition No.17016/2013
was filed before Lahore High Court, Lahore. All three sons of the petitioner
were allegedly kept in Police Station Defence─B, Lahore. During the
period of their detention, son of the petitioner namely Muhammad Asif was
separated from others thereafter he was taken to an unknown place where
he was done to death while causing firearm injuries on various part of his
body. The allegation further discloses that the death of Muhammad Asif
Criminal Petition No.163/2020
-:3:-
was result of conspiracy hatched by respondent No.1 in collusion with
respondent No.6. In this connection, a case bearing FIR No.311/2013
dated 30.06.2013 offence under section 392 PPC was also got registered
with Police Station Defence─B Lahore at the instance of respondents.
4.
While opening his address at the very outset, learned
counsel for the petitioner argued that the order impugned before this Court
is bad, illegal hence not sustainable in the eyes of law. Further contends
that the occurrence had initiated the moment two sons of the petitioner
were taken into custody from village Chak No.17 North Tehsil Bhalwal
whereas the third son of the petitioner was also taken into custody from
village Malikwal adjacent to Tehsil Tala Gang District Chakwal. Contends
that to assume jurisdiction for the purpose of trial, it is the basic law that it
commence with the initiation of commission of an offence hence, this
aspect was totally ignored by High Court while passing the order of
transfer of the trial of the “complaint” from learned Addl: Sessions Judge
Tala Gang to learned Addl: Sessions Judge-I, Lahore. The learned
counsel for the petitioner has shown serious apprehension to the safety
and security of the petitioner while pursuing this case at Lahore especially
when all the respondents are police officials and they are also posted over
there. The anxiety of the learned counsel has further extended that he
would not avail justice in the given circumstances.
5.
We have heard the learned counsel and gone through the
record.
6.
There is no denial to this fact that the death of son of the
petitioner was reported within the local limits of Police Station Defence─B,
Lahore, and in this regard, a case bearing FIR No.311/2013 dated
30.06.2013 offence under section 392 PPC was also registered with said
police station. Post-mortem examination of son of the petitioner was
Criminal Petition No.163/2020
-:4:-
conducted at Lahore. In this connection, all the witnesses are also
residents of Lahore. As per version of the prosecution, it is mentioned in
the “complaint” that the sons of the petitioner were allegedly abducted
from two distinct places on two different occasions i.e. on 26.06.2013 and
29.06.2013 respectively. However, they were kept in illegal confinement in
Police Station Defence─B at Lahore. There is no denial to this fact from
the prosecution version that son of the petitioner was allegedly done to
death on the following day by a brutal act of the respondents. A
constitutional petition was filed however order of the same was not placed
on the record. We have noticed with concern that despite of a serious
allegation of extra-judicial killing against the respondent, the petitioner
adopted the recourse of law while filing “complaint” before the trial court
with inordinate delay of more than three years.
7.
A legal question has been raised qua the jurisdiction of the
court and venue of trial as per law. Chapter XV Part VI of the Criminal
Procedure Code deals with “Jurisdiction of the Criminal Courts in Inquiry
and Trials”. Section 177 of the Code of Criminal Procedure relates to
general principle of jurisdiction & venue of trial which is reproduced as
under: -
“177. Ordinary place of inquiry and trial. Every offence
shall ordinary be inquired in and tried by a Court within the
local limits of whose jurisdiction it was committed”.
The language of the said provision is explicit in its context hardly leaving
any ambiguity qua the interpretation with reference to jurisdiction and
venue of the trial in ordinary circumstances however this principle has
certain exceptions which are established from the bare reading of
provision of section 179 & 180 Cr.P.C. To evaluate the exceptions of the
general principle qua jurisdiction and venue of trial, provision of section
179 Cr.P.C is reproduced as under: -
Criminal Petition No.163/2020
-:5:-
“179. Accused triable in district where act is done or
where consequences ensues. When a person is accused
of the commission of any offence by reason of anything
which had been done, and of any consequence which has
ensued, such offence may be inquired into or tried by a
Court within the limits of whose jurisdiction any such thing
has been done, or any such consequence has ensued.”
8.
Bare perusal of the language of the aforesaid provision
depicts that if there is any departure from the general principle qua
jurisdiction and venue of trial, two aspects are to be evaluated for the
proper determination such as: -
i.
Commission of an offence.
ii.
Commission of an act and other consequences
ensued.
From the careful perusal of the language of the aforesaid provision, it is
crystal clear that this provision has extended the limits of venue while
classifying the principles to assume jurisdiction to take cognizance of an
offence for the purpose of trial. We have observed that in the instant case,
the controversy in between the parties relating to the venue of the trial.
The prosecution itself is not certain about it because from the perusal of
the “complaint”, the allegation of abduction had taken place from two
distinct places whereas the jurisdiction and venue has been assailed by
the prosecution at Tala Gang which itself create doubt qua the
seriousness of the prosecution. As far as the place where the son of the
petitioner was allegedly done to death there is no ambiguity that the
offence of alleged murder of son of petitioner was committed at Lahore
within the local limits of Police Station Defence─B Lahore. Post-mortem
examination of son of the petitioner was also conducted at Lahore
whereas the witnesses mentioned in the calendar of witnesses are
residents of Lahore. All these facts are fully covered by the second part of
section 179 Cr.P.C coming within the ambit of “ensued consequences”.
This aspect was never denied by either of the party. We when evaluated
Criminal Petition No.163/2020
-:6:-
the facts and circumstances brought before us and juxtaposed them on
the judicial parlance, we are of the considered view that impugned order
by learned Single Bench of High Court was passed in its true perspective
squarely in the spirit of law of land, therefore, the transfer of trial of
“complaint” and entrusting the same to the court of learned Addl: Sessions
Judge-I, Lahore was well within the parameter of the law hence, needs no
exception. This petition is devoid of any legal force, therefore, the same is
dismissed.
9.
Before parting with the order, we have observed that the
“complaint” was lodged way back on 12.11.2016, hence considerable time
has already elapsed, therefore, we cannot loose sight of this aspect
hence, we direct the learned trial court to expedite the proceeding before it
and decide the lis preferably within three months from receipt of the order
on merits with independent application of mind without being influenced by
any observation of this Court.
10.
The Senior Superintendent of Police (Operation), Lahore is
directed to provide adequate security to the petitioner during trial.
Judge
Judge
Judge
Islamabad,
12.06.2020
Approved for reporting.
Syed Rashid Maqsood
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Maqbool Baqar
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.166-L of 2020
(Against order dated 17.2.2020 of the
Lahore High Court, Lahore passed in
Cr.Misc No.2799-B/2020)
Hassan Javed
…Petitioner(s)
Versus
The State & Nasr Hussain
…Respondent(s)
For the Petitioner(s):
Ch. Imran Raza Chadhar, ASC
For the Complainant:
Mr. M. Wasim, ASC
For the State:
Mr.
Muhammad
Jaffar,
Additional
Prosecutor General Punjab
Ghulam Haider, I.O./ASI with record
Date of hearing:
06.03.2020.
ORDER
Qazi Muhammad Amin Ahmed, J.- Hassan Javed,
petitioner herein, anticipating arrest, seeks admission to bail; he has
been accused by his employer Naseer Hussain for committing criminal
breach of trust along with Abu Turab, Jarar Haider and Muhammad
Atif in consequence whereof the company, styled as Dev Batch (Pvt.)
suffered a loss of US $50000. It is alleged that, alarmed by persisting
loss, the Director of the company arranged audit of the accounts to
discover that the accused were receiving payments by the customers in
their personal accounts and that they also transacted payments from
company’s account for consignments personally settled with foreign
customers. It is further alleged that when confronted with the foul play
the accused confessed the guilt and paid back a sum of US $6261 with
an undertaking for the remainder, subsequently retracted, prompting
recourse to law.
It is argued that the intended arrest is tainted with mala fide
inasmuch as the process of law is being abused to convert a rendition
issue into a criminal prosecution to cast its rigor upon the petitioner,
vulnerably placed; there is nothing on the record to even obliquely
Criminal Petition No.166-L of 2020
2
suggest breach of trust within the contemplation of section 405 of the
Pakistan Penal Code, 1860, concluded the learned counsel.
2.
Heard. Record perused.
3.
Petitioner’s employment with the complainant is a common
ground, nonetheless, accusation notwithstanding, learned law officer
assisted by learned counsel for the complainant has not been able to
point out, even obliquely, any material/evidence to establish alleged
transactions, each admittedly documented; there is no statement on the
record to confirm confession by the accused, either individually or
jointly. In addition to the crime report, the only statement is that of
Bilal Ahmed PW, who referred to some “voice messaging” by the
petitioner as proof of his guilt without production thereof before the
Investigating
Officer,
foreclosing
the
possibility
of
its
forensic
confirmation. Not even the time or date of impugned transactions is
mentioned in the crime report; investigation sans the details as well.
Loss, allegedly incurred by the employees, cannot be equated with
breach of trust. Prosecution has to structure itself upon foundations yet
to be laid and this by itself brings petitioner’s case within the remit of
sub section 2 of Section 497 of the Code of Criminal Procedure, 1898, a
coordinate requirement for the grant of relief, prayed for; the foregoing
status of the case is confirmed by no other than the Investigating
Officer himself vide case diary dated 8.1.2020. Even otherwise,
argument that mala fide is lurking behind the intended arrest cannot be
dismissed out of hand and as such given the petitioner’s clean past, his
remission into custody would be a measure far from being
conscionable. A case for judicial protection stands made out. The
petition is converted into appeal; allowed; the petitioner is admitted to
anticipatory bail on furnishing bonds in the sum of Rs.1,00,000/- (one
lac) with two sureties each in the like amount to the satisfaction of the
trial Court. Above observations shall not cast their shadow on the
outcome of the trial, to be essentially settled on the strength of available
evidence.
Judge
Judge
Lahore, the
6th March, 2020
Not approved for reporting
Ghulam Raza/-
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
MR. JUSTICE MUNIB AKHTAR
MR. JUSTICE QAZI MUHAMMAD AMIN AHMED
Criminal Petition No.167-P of 2021
(Against the order dated 22.10.2021 passed by the
Peshawar High Court Peshawar in Cr. M. No.3206-
P/2021)
Abdul Rehman
… Petitioner(s)
Vs
The State and another
…
Respondent(s)
For the Petitioner(s)
:
Mr. Muhammad Tariq Shah, ASC
For the State
:
Sayyed Nayyab Hassan Gardezi,
Deputy Attorney General with Tariq I.O.
Date of Hearing
:
09.12.2021
ORDER
Qazi Muhammad Amin Ahmed, J.:- The petitioner is
accused of having cyber stalked defamatory messages along with
photographs of complainant’s daughter in law to her husband; the
matter was reported to the Federal Investigating Agency, pursuant
whereto, in the wake of a detailed inquiry, devices transmitting the
impugned communication were secured upon his disclosure that
conclusively established his culpability as the source behind
family’s embarrassment. Attempts for post arrest bail failed lastly
before a learned Judge-in-Chamber of the Peshawar High Court
Peshawar vide impugned order dated 22.10.2021, leave to appeal
wherefrom is being prayed for primarily on the ground that the
offences complained do not fall within the prohibitory clause of
section 497 of the Code of Criminal Procedure, 1898 and
investigation being complete there is no justification to depart from
the rule.
Cr.P.167/2021
-:2:-
2.
Heard. Record perused.
3.
Ordinarily, upon conclusion of investigation in criminal
cases falling outside the remit of “prohibition” motions for release
on bail are favourably received, nonetheless, the practice is not
without limitations. In the present case, privacy of a young lady
has grievously been intruded to the utter embarrassment of her
family; even her marriage went into peril. The incident was
reported by her father-in-law and, thus, in the facts and
circumstances of the case, we do not feel persuaded, in our
discretion, by the submission made at the bar so as to take a
different view than concurrently taken by the Courts below.
Petition fails. Leave declined. However, the learned trial Court is
directed to expeditiously proceed with the trial so as to conclude it
within a period of four months. Investigating Officer, in attendance,
is directed to ensure presence of witnesses on the date fixed for
recording of evidence.
Judge
Judge
Islamabad, the
9th December, 2021
Azmat/*
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Maqbool Baqar
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.1672-L of 2019
(Against order dated 02.12.2019
passed by Lahore High Court Lahore
in Crl. Misc. No.51181-B of 2019)
Zulfiqar
…Petitioner(s)
Versus
The State & another
…Respondent(s)
For the Petitioner(s):
Mr. Muhammad Ramzan Chaudhary,
ASC
Mr. Arshad Ali Chaudhry, AOR
For the State:
Mirza Abid Majeed,
Deputy Prosecutor General Punjab
with Abid, I.O.
For the Respondent(s):
Mr. Sajjad Hussain, ASC
Date of hearing:
15.1.2020.
ORDER
Qazi Muhammad Amin Ahmed, J.- Behind bars since
14.06.2019, Zulfiqar, petitioner seeks admission to bail. It is
alleged that on the fateful day, he alongwith his two sons
accompanied by three unknown assailants, each armed with a .30
caliber pistol, confronted Muhammad Shakeel Jahangir, deceased
in the backdrop of a motive relating to a dispute over property; he
is attributed first shot to the deceased on his right shin followed by
fire shots by the co-accused. Autopsy revealed three entry wounds.
Effective role qua the deceased assigned in the crime report
notwithstanding, the petitioner has been found by the Investigating
Officer to have merely abetted the crime without being at the spot.
2.
Heard. Record perused.
3.
Accompanied by two able bodied sons, each lethally
armed, whether the petitioner had any occasion to venture the
Civil Petition No.1839 of 2018
2
occurrence is an issue to be best settled after recording of
evidence. Number of fire shots sustained by the deceased is not
commensurate with the volley of fires collectively made by the
assailants including the unknown is a circumstance that
additionally warrants further probe. Acceptance of plea raised by
the petitioner, statedly in his late sixties, is yet another
circumstance converging in his favour; his culpability certainly
calls for further probe, thus, a case for his release on bail stands
made out. The petitioner shall be released on his furnishing bonds
in the sum of Rs.500,000/- with two sureties each in the like
amount to the satisfaction of the learned trial Court. The petition
is converted into appeal and allowed.
Judge
Judge
Islamabad
15th January, 2020
Not approved for reporting
Azmat/-
|
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|
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mushir Alam
Mr. Justice Dost Muhammad Khan
Criminal Petition No.169 of 2017
Against the judgment dated 14.10.2016 passed
by Sindh High Court, Hyderabad Circuit, in Crl.
Misc. Application No.D-430 of 2015
Rahib Ali
Petitioner (s)
VERSUS
The State
Respondent(s)
For the Petitioner (s)
: Mr. Amjad Ali Sahito, ASC
Mr. Ghulam Rasool Mangi, AOR
For the Respondent(s)
: Mr. Abdullah Rajput, Addl. AG
Date of Hearing
: 30.10.2017
ORDER
Mushir
Alam,
J.-
Rahib
Ali,
convict/petitioner
has
impugned the order dated 14.10.2016 passed by learned bench of the
High Court, whereby his application under section 397 read with section
561-A Cr.P.C seeking an order to compute two conviction sentences
awarded in two different set of proceedings by two different courts to run
concurrently, which application was declined on the ground, inter alia,
that in one set of proceedings Supreme Court while enhancing the
sentence from 14 years to life did not ordered the sentence in both the
cases to run concurrently, therefore, it is not open for the High Court to
order concurrent running of sentences in two different set of proceedings.
2.
Learned counsel for the petitioner contends that it is now
settled position in law that Courts ordinarily order running of two
separate convictions recorded in two different set of trials by two different
courts to be run concurrently, irrespective whether such conviction has
been maintained, enhanced or modified by the appellate and or revisional
Courts as the case may be, in any manner, whatsoever. Learned
Additional Advocate General, in attendance concedes to such legal
position.
3.
We have heard the learned counsel for the petitioner as well
as learned Advocate General and perused the record.
Criminal Petition No.169 of 2007
2
4.
In order to appreciate the contention of the learned counsel
convictions recorded against the appellant in two separate trials are as
follows:-
“i.
Crime
Nos.23/1999,
P.S.
Tando
Yousuf
on
24.7.1999 & 62/1999 P.S. B-Section Latifabad on
28.11.1999 resulting in special case No.24/2000,
U/s. 365-A PPC, 7-B ATA & 20 H.Ord., wherein he
was found guilty alongwith his accomplice under
section 6(2)(e) Anti-Terrorism Act and was ordered to
imprisonment for life and forfeiture of their
properties alongwith the offence under section 392
PPC
and
further
sentenced
to
undergo
Imprisonment for ten years and fine of Rs.50,000/-
each and one year imprisonment more in case of
default in payment of fine. Appeals bearing Nos.98,
99 & 100/2001 alongwith Jail Appeal No.9 of 2002
were preferred wherein the judgment of the trial
Court was maintained by the Sindh High Court. The
Appellant preferred Cr. As. No.418 & 419 of 2002,
before this Court, resulted in extension of benefit
U/s 382-B Cr.P.C. for sentence awarded under
Sec.7 of the ATA & 392 of PPC to be run
concurrently vide judgment dated 21.10.2011.
ii.
Crime No.01/2000, P.S. Bhatti Nagar U/s 365-A
PPC & U/s 7(b) ATA 1997 in criminal case
No.25/2002, wherein he alongwith his accomplices
was convicted for 14 years and fine of Rs.100,000/-
each and in default an imprisonment of one year.
Appeals bearing Nos.11 & 12 of 2002 were preferred
to the High Court by the accused wherein the
sentences were maintained. On approach to the
Honourable Supreme Court of Pakistan by way of
Criminal Appeal No.420 of 2002 it was held that
legal sentence under Section 365-A PPC, could not
be less than life, which was accordingly enhanced to
life imprisonment alongwith forfeiture of property,
benefit U/s 382-B Cr.P.C. for sentences awarded
under Sec.7 of the ATA & 392 of PPC was however
given to be run concurrently vide judgment dated
02.02.2012
5.
As noted in the first mentioned Crime No.23/1999 registered
at Police Station Tando Yousuf on 24.7.1999 and Crime No. 62/1999
registered at Police Station ‘B’ Section, Latifabad on 28.11.1999
converted into Special Case No.24/2000 dated 24.11.2001, wherein
conviction and sentence was handed down by the learned Judge Anti
Terrorism Court, Hyderabad, under section 365-A PPC read with section
7-B ATA and section 20 Hadood Ordinance, to imprisonment for life,
which conviction was maintained upto this Court in Criminal Appeals
No.418 and 419 of 2002, benefit of section 382-B Cr.P.C was also
extended and for the sentence awarded under section 7 of the ATA and
section 392 PPC both were ordered to run concurrently. In instant
matter the Petitioner who faced trial in another crime No.1/2000
registered at Police Station Bhitai Nagar, Hyderabad, tried as Special
Case No.24 and 25/2000 respectively, wherein he was sentenced to 14
Criminal Petition No.169 of 2007
3
years, which was maintained by the High Court, when it came up for
consideration in Criminal Appeal No.420 of 2002, before this Court, it
was noted that 14 years sentence for kidnapping for ransom recorded by
the trial Court and affirmed by the High Court is not a legal sentence, as
the sentence for an offence under section 365-A PPC is either “death or
imprisonment for life and forfeiture of property.” Consequently this court
while
affirming
the
conviction
enhanced
the
sentence
to
life
imprisonment alongwith forfeiture of properties and maintained amount
of fine as provided for under the charging provision, this Court also
ordered running of all the sentences awarded by the trial court, at one
trial was ordered to run concurrently, which direction was in consonance
with section 35 of the Cr.P.C
6.
It seems that neither at the time of conviction in subsequent
trial in criminal case No.25/2002 by the trial Court, nor at the time
when his Criminal Appeals No.11 and 12 of 2002 were heard and
decided on 21.5.2002 by the High Court and nor, at the time of hearing
of Criminal Appeal No.420 of 2002 before this Court the petitioner herein
and the Prosecutor General did not laid any information that the
petitioner is already serving out life sentence awarded earlier in special
case No.24/2000. Apparently, for this reason no direction in the nature
of consolidation of sentences handed down in two separate trials was
made.
7.
In instant case after the conviction in second trial was
maintained by this court, jail authority informed the Petitioner that life
sentences awarded in two cases would run consecutively as there is no
direction by the court to treat two separate life sentences to run
concurrently, which mean that he would under go life sentence twice
successively or one after the other, which prompted him to make
application to the High Court under section 397 Cr.P.C read with Section
561-A Cr.P.C, seeking direction to treat life sentences awarded in two
separate trial to run concurrently. The Application was dismissed by the
High Court vide impugned order on the ground inter-alia “that the final
convictions are based upon order/s as passed by the Honourable Supreme
Court wherein one was enhanced. Without going into question of non
disclosure of the earlier punishment reasons of which other than oversight
may have been presented being not to disclose the chequered history of
the accused in order to avoid any negative effect. We are of the
understanding that it is not open for this court to order for concurrent
Criminal Petition No.169 of 2007
4
running of both the sentences finally passed by the Hon’able Supreme
Court of Pakistan and in the circumstances this application is dismissed”.
8.
The question before us is that when sentence for
imprisonment life or lesser sentence, in a subsequent trial is maintained
or modified by the appellate or revisional Court, whether the Court seized
of the subsequent trial or appeal arising there from after handing down
conviction could order clubbing of two sentences one inflicted and
undergoing in earlier trial with that inflicted in subsequent trial?
Generally a sentence of imprisonment (subject to sections 381, 401 and
426-Cr.P.C) comes into effect the moment it is passed and unless the
trial, appellate or revisional Court as the case may be orders consolidated
computation of several conviction sentences passed in singular trail, the
sentences run in a row, successively one after the other, however, section
35 of the Cr.P.C enables the trial and or higher Courts of appeal to order
consolidation of several imprisonment sentences in the same trial
9.
However, where an offender is serving out a substantive
sentence of imprisonment is also subsequently convicted for any other
offence(s) in another trial(s); per section 397 Cr.P.C later sentence(s) for
imprisonment would generally commence at the expiration of earlier
sentence(s) or putting it in other words sentences in several trial awarded
to an offender/convict in successive trials would run back to back one
after the expiration of other, unless the court directs that the subsequent
sentence shall run concurrently with the sentence passed in earlier trial.
Exception to this rule is in where the offender is serving out sentence of
imprisonment in lieu or in default of payment of fine. Neither the trial
nor the appellate or revisional courts have any jurisdiction to order
consolidation of multiple sentences in lieu of fine. Multiple sentences of
fine in a trial in lieu of fine in same or different cases would run
successively (see section 64 to 70 PPC).
10.
In cases where the subsequent conviction and sentence
handed down by the trial court and for that matter the Appellate and or
Revisional Court, is silent as to consolidation of two or more sentences or
otherwise against a convict already undergoing a sentence; than in
appropriate cases inherent jurisdiction of the High Court in terms of
section 561-A Cr.P.C read with 397 Cr.P.C could always be invoked. In
the case of Ammavasai Vs. Inispector of Police, 2000(9) SCC 759 Supreme
Criminal Petition No.169 of 2007
5
Court India also held that consolidation of sentences against the same
accused in various cases is permissible.
11.
Present controversy is confined only to the extent of power of
the courts to order concurrent running of multiple sentences passed in
one and or more than one trial(s). Jurisdiction of the Courts to order
multiple sentences in one trial to run concurrently or otherwise came up
for consideration in number of cases including, Ghulam Haider versus
The State (1984 SCMR 887), in said case accused was awarded death
sentence under section 302 PPC on three Counts, death sentence was
converted into for life on three count and ordered to be run concurrently
by this court. In the case of Javail Shaikh v. the State (1985 SCMR 153)
life sentence under Section 302 PPC and, 7 years under section 307 PPC
were ordered to run concurrently. In Juma Khan and another versus The
State (1986 SCMR 1573), convicts were sentenced to death on two
count by the trial court, High Court maintained the conviction but
reduced the sentence to life on each count without specifying whether
the sentence would run consecutively or concurrently. Jail petition was
also dismissed by this court. Convicts, on being informed by the jail
authority that they would have to undergo two terms of 25 years each
one after the other; moved High Court under section 561-A Cr.P.C to
seek clarification on such count. The application was dismissed on the
ground, inter-alia, that it cannot review the conviction as it was
maintained by Supreme Court. This is exactly what has happened in the
case in hand. This court when approached by the convicts, (relying on
the case of Javaid Shaikh, supra) held that under section 35 of the
Cr.P.C the total period of imprisonment at one trial cannot exceed 25
years, if the sentence imposed on the petitioner in this case are allowed
to take affect consecutively the sentence would exceed 25 years, which it
was held, is not permitted by section 35 ibid. In Muhammad Ittefaq
versus The State (1986 SCMR 1627) this court maintained sentence for
life on two counts and one for seven years as handed down by the trial
court and no direction was made for the concurrent running of sentence
either by the trial, or this Court. However, subsequently on criminal
miscellaneous application in exercise of power under section 35(2) Cr.P.C
the omission was rectified and this Court (relying on Javaid Shaikh,
supra) ordered that three sentences two for life and one for seven years in
same trial to run concurrently. In case of Khan Zaman Khan and others
versus The State (1987 SCMR 1382), where the High court maintained
Criminal Petition No.169 of 2007
6
the conviction but modified the sentence one from death to life
imprisonment on two count and the sentences were ordered to run
consecutively. In appeal this court exercising enabling power under
section 35 (2) Cr.P.C and follwing above cited cases ordered the
sentences to run concurrently. In Faiz Ahmed and another versus
Shafiq-ur-Reham and another (2013 SCMR 583) and in Muhammad
Sharif versus The State (2014 SCMR 668 (Order on Suo Moto Review Petition) where
convicts were sentenced on more than one count this Court in
consideration of fact that multiple offences committed by the offender in
a sequel of same transaction could be convicted and sentences for each
of the offences charged and proved against him under respective penal
provisions separately, however; multiple sentences for numerous offences
in one trial, as could be seen from the precedents noted above, is treated
as a single sentence for the purposes of appeal [see section 35(3) Cr.P.C]
and generally multiple sentences of imprisonment run consecutively
unless ordered to run concurrently, is being consistently followed as rule
of thump.
12.
Generally, where a convict is undergoing sentence in earlier
conviction and later in a separate trial(s) stand convicted and sentenced
for imprisonment for life or otherwise for a shorter term, sentence in
subsequent trial commences after sentence in earlier trial is exhausted.
However, the trial court seized of subsequent trial and the Appellate
Courts in appeal arising there from are empowered under section 397
Cr.P.C to direct that the subsequent sentence(s) to run conjointly with
previous sentence(s) of imprisonment of life or otherwise as the case may
be. In the cases cited as Mst. Zubaida versus Falak Sher and others
(2007 SCMR 548), this Court attending to question of multiple
convictions in more than one crime and trial took charitable view of
Section 397 Cr.P.C, while declining leave; observed that section 397
Cr.P.C empowers the court to direct the subsequent sentence would run
concurrently with the previous sentence. In the case of. Shahista Bibi
and another versus Superintendant, Central Jail, MACH and 2 others (PLD
2015 Supreme Court 15) this court examined provisions of section 35
Cr. P.C together with section 397 Cr.P.C also took charitable view and
adopted interpretation beneficial to the accused by ordering concurrent
running of sentence in two different trials. In a more recent
pronouncement in the case of Sajjad Ikrram and others versus Sikandar
Hayat and others (2016 SCMR 467) this Court at page 473 held that
Criminal Petition No.169 of 2007
7
“The provisions of section 397 Cr.P.C confers wide discretion on the court
to extend such benefit to the accused in case of peculiar nature” and court
further observed “that there is nothing wrong in treating the sentence of
imprisonment for life of convict/appellants on three count to run
concurrently.”
13.
In view of the discussion made above, position that emerges
is that the Courts in Pakistan generally take charitable view in the
matter of sentences affecting deprivation of life or liberty of a person and
unless some aggravating circumstances do not permit so, liberally
exercise enabling power under section 35 and section 397 Cr.P.C
respectively to order concurrent running of sentence in one trial and so
also consolidation of earlier sentence while handing down sentence of
imprisonment in a subsequent trial.
14.
Taking stock of the legal position as noted above, examining
the case in hand, in the first mentioned crime, the petitioner was
convicted for life sentence and in the second mentioned case his 14 years
imprisonment sentence was enhanced by this Court to life imprisonment.
Treating and computing life sentences in two different trial/transactions
to run consecutively or second sentence after the exhaustion of the first
mentioned life sentence would be in negation of section 57 of PPC, as
amended, which prescribes that sentence of imprisonment for life
corresponds to maximum imprisonment for 25 years and in any case
cannot be less than 15 years (per Rule 140 of the Pakistan Prison Rules
1978); after earning remissions as may be extended by the executive
functionaries from time to time but subject to section 401 Cr.P.C, Rule 216
and Rule 218 of the Pakistan Prison Rules, 1978.
15.
Learned Counsel for the Petitioner/convicts concedes that at
the time of proceeding with the second conviction before this court earlier
conviction was not brought to the notice of this Court nor there was
anything on record for this Court to take into consideration the earlier
conviction while handing down sentence to life in Criminal Appeal
No.420 of 2002 on 28.8.2012 otherwise the Court would have considered
and ordered running of the imprisonment sentence to run concurrently.
However sentence in lieu of fine attached to a substantive sentence of
imprisonment for life or otherwise would run after the substantive
sentence(s) are exhausted. Courts have no jurisdiction to order sentence
of fine to run concurrently with substantive sentence(s), for the simple
Criminal Petition No.169 of 2007
8
reason that imprisonment in lieu of or, in default in payment of fine is
not a sentence but a penalty, which a convict sustain as a consequence
for non payment of fine the (see also section 64 to 70 P.P.C). Courts,
however, are empowered under section 388 Cr.P.C to regulate the
recovery of fine, in instalment by releasing offender on completion of
substantive sentence of imprisonment, on furnishing bond and or surety
as may be ordered b y the court.
16.
Before parting with this judgment, we may well observe that
section 35, Cr.P.C subject to section 71 of Pakistan Penal Code
empowers
not
only
the
trial
Court
to
hand
down
several
Punishment/sentences to a person charged for multiple offence in same
trial and in its discretion direct that such convection/sentence may run
concurrently (per proviso thereto, in no case be more than 14 years in
aggregate) even the Appellate Court while hearing the appeal against the
conviction may direct several sentences/punishment handed down in
same trial; to run concurrently. Whereas section 397 Cr.P.C; enables and
empowers the trial, and or Appellate/Revisional court, as the case may
be, in a subsequent trial or in appeal or revision arising out of
subsequent trial to order for the consolidation of sentence in subsequent
trial with the sentence(s) handed down in earlier trail(s) as may be
maintained or modified in appeal/revision arising there from. In case
earlier conviction was not brought to the notice of the at the time of
handing down the subsequent conviction sentence the Trial or
Appellate/Revisional Court could exercise such jurisdiction even after
the sentence of imprisonment in subsequent trial is announced in
exercise of its inherent jurisdiction under section 561-ACr/PC read with
section 397 Cr.P.C, provided of course, where the trial, or superior courts
of appeal have specifically and consciously ordered the sentences either
in same trial or in subsequent trial to run consecutively.
17.
In the light of discussion made above, there remains no
doubt that the High Court and so also this Court have jurisdiction under
section 561-A read with section 35 and or section 397 Cr.P.C as the case
may to ordered such multiple sentences in same transaction/trial or in a
separate and subsequent trial to run concurrently.
18.
It seems that when Criminal Appeal No.420 of 2002 arising
out of consolidated judgment dated 21.5.2002 (arising out of Criminal Appeals
No.11 and 12 of 2002 from the judgment of the High Court) came up for hearing
Criminal Petition No.169 of 2007
9
neither the petitioner herein nor the Prosecutor General informed this
Court that the petitioner had been tried in earlier crime of similar nature,
has been sentenced to life, which conviction and sentence of
imprisonment was maintained by this Court, apparently for this reason
no direction or order to treat sentences of imprisonment awarded in
separate and successive trial to run concurrently was made.
19.
In this view of the matter, we would convert this petition into
appeal and allow and direct that sentences awarded in both the trials as
detailed in paragraph 4 above to be run concurrently.
JUDGE
JUDGE
Islamabad, the
30th October, 2017
Arshed
Approved for Reporting
|
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|
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Faisal Arab
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.169 of 2020
(Against judgment dated 13.2.2020 passed by the
High Court of Sindh, Karachi in Cr. Bail Application
No.1327 of 2019)
Ghulam Farooq Channa
…Petitioner(s)
Versus
Special Judge ACE (Central-I) Karachi & another
…Respondent(s)
For the Petitioner(s):
Mr. Ghulam Sajjad Gopang, ASC
with petitioner
For the State:
N.R.
Date of hearing:
03.03.2020.
JUDGMENT
Qazi Muhammad Amin Ahmed, J.- Avoiding arrest
since 28.8.2019, in the wake of dismissals, Ghulam Farooq
Channa, Secretary Union Council Jamshed Town, Karachi seeks
bail in anticipation thereto; he is accused of having fabricated a
fake death certificate of one Naseem Begum Chotani, on the basis
whereof, his co-accused attempted to hoodwink judicial process to
grab valuable properties vesting in the lady. Upon disclosure, the
scam was reported to the Anti-Corruption Authorities and
pursuant to an inquiry, the petitioner has been arrayed as accused
alongside the accomplices.
2.
Learned counsel for the petitioner contends that
alleged fabrication was reported after five years and in fact was
committed by the officials at the higher rung and that the
petitioner was being hounded as a scapegoat to save the real
culprits; it is argued that the co-accused have since been enlarged
on post arrest bail and, thus, petitioner’s remission into custody is
not likely to serve any useful purpose, relative to investigation.
3.
Heard.
Cr. Petition No.169 of 2020
2
4.
Grant of bail to an accused required in a cognizable
and non-bail offence prior to his arrest is an extraordinary judicial
intervention in an ongoing or imminent investigative process. It
clogs the very mechanics of State authority to investigate and
prosecute violations of law designated as crimes. To prevent arrest
of an accused where it is so required by law is a measure with far
reaching consequences that may include loss or disappearance of
evidence. The Statute does not contemplate such a remedy and it
was judicially advented way back in the year 1949 in the case of
Hidayat Ullah Khan Vs. The Crown (PLD 1949 Lahore 21) with
purposes sacrosanct and noble, essentially to provide judicial
refuge to the innocent and the vulnerable from the rigors of abuse
of process of law; to protect human dignity and honour from the
humiliation of arrest intended for designs sinister and oblique. The
remedy oriented in equity cannot be invoked in every run of the
mill criminal case, prima facie supported by material and evidence,
constituting a non-bailable/cognizable offence, warranting arrest,
an inherent attribute of the dynamics of Criminal Justice System
with a deterrent impact; it is certainly not a substitute for post
arrest bail.
The petitioner was at the helm of affairs when the bogus
certificate was issued; cognizance on belated disclosure does not
mitigate the culpability nor can be equated with mala fide. Release
of co-accused on post arrest bails is entirely beside the mark for
the reasons stated above. View taken by the learned High Court of
Sindh as well as the learned Special Judge (Central-I) Karachi is in
accord with the law, being consistently followed by this Court till
date. Petition fails. Leave declined.
Judge
Judge
Islamabad, the
3rd March, 2020
Not approved for reporting
Azmat/-
|
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|
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mazhar Alam Khan Miankhel
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition Nos.17-L/2018 & 1338/2017
(Against the order dated 15.11.2017 of the Lahore High Court
Bahawalpur Bench passed in Cr. Appeal No.83/2014 and Cr. Appeal
No.88 of 2014 along with M.R. No.7/2014)
Muhammad Khan alias Kali
(in Cr.P. No.17-L/2018)
Laal Khan
(in Cr.P. No.1338/2017)
.…Petitioner(s)
Versus
The State and another
(in Cr.P. No.17-L/2018)
The State and 03 others
(in Cr.P. No.1338/2017)
….Respondent(s)
For the Petitioner(s):
Mr. Muhammad Sharif Bhatti, ASC
Sardar Muhammad Shahzad Khan Dhukar, ASC
(in Cr.P. No.17-L/2018)
Syed Aasim Ali Bokhari, ASC
(in Cr.P. No.1338/2017)
For the Respondent(s):
N.R.
(in both cases)
Date of hearing:
06.08.2020.
ORDER
Qazi Muhammad Amin Ahmed, J.- Muhammad Javed, 28/29,
was clubbed to death at 2:00 p.m. on 10.12.2012 within the remit of Police
Station Donga Bonga, District Bahawalnagar, in the backdrop of an early
morning dispute over cattle grazing; Muhammad Khan alias Kali, petitioner
along with Muhammad Din alias Pappu and Nadeem alias Ghona were
jointly blamed for fatal injuries while Muhammad Nawaz, Shah Muhammad
and Mahna, already present at the scene, were alleged to have exhorted the
assailants. Autopsy suggested two injuries in the temporal region
accompanied by a slant mark on the chest as collective cause of death mainly
on account of fracture of skull. Upon conclusion of trial, the petitioner along
with Nadeem alias Ghona was returned a guilty verdict; convicted under
clause (b) of section 302 of the Pakistan Penal Code, 1860, they were
sentenced to death vide judgment dated 18.2.2014. Petitioner’s conviction
was maintained, albeit with alteration of death penalty into imprisonment for
life while Nadeem alias Ghona was acquitted of the charge vide impugned
judgment dated 15.11.2017; equally dissatisfied but for their own reasons,
both sides, have assailed the judgment.
Criminal Petition Nos.17-L/2018 & 1338/2017
2
2.
The accused are divided into two groups; first comprising
Muhammad Din alias Pappu, Muhammad Khan alias Kali and Nadeem alias
Ghona; they are blamed to have jointly beaten the deceased to death; in the
second group, Muhammad Nawaz son of Muhammad Sadiq, Shah Muhammad
son of Noor Din and Mahna son of Sharaf Din, allegedly, exhorting community
of intention, joined the former a while later, however, without inflicting any
harm to the deceased. The acquittal of non-participating second set of accused
has not been challenged, however, Din Muhammad alias Pappu let off by the
trial Court and the acquittal of Nadeem alias Ghona by the High Court have
been disputed by the complainant throughout alongside the challenge thrown
by the convict.
3.
Learned counsel for the complainant contends that roles assigned
to the Muhammad Khan alias Kali, Nadim alias Ghona and Din Muhammad
alias Pappu are clearly borne out from medical evidence and once the learned
trial Judge as well as the High Court had believed the ocular account qua
Muhammad Khan alias Kali, there was no occasion to let off Nadim alias
Ghona and Din Muhammad alias Pappu in view of their indivisibly inculpatory
participation in the crime and as such the error cannot be countenanced
without jeopardizing the fate of the entire case into peril, at the cost of
miscarriage of justice, therefore, impugned conclusions being impossible, re-
appraisal of evidence would be most called for in circumstances. Conversely,
learned counsel for Muhammad Khan alias Kali contends that the courts
below had rightly acquitted the co-accused, including those, assigned effective
roles qua the deceased, therefore, in the absence of any independent
corroboration, petitioner is also entitled for a clean chit.
3.
In the peculiar facts and circumstances of the case, it would be
expedient to re-examine the evidence in the interest of justice. Leave is granted
in both the cases. Send for Nadeem alias Ghona and Muhammad Din alias
Pappu, respondents, through bailable warrants in the sum of Rs.500,000/-
with one surety each in the like amount, returnable to the Deputy Registrar
(Judicial) of this Court.
Judge
Judge
Islamabad, the
6th August, 2020
Not approved for reporting
Azmat/-
|
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"url": ""
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|
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, C.J
MR. JUSTICE IJAZ AHMED CHAUDHRY
MR. JUSTICE GULZAR AHMED
CRIMINAL PETITION NO. 170 OF 2013
Haseeba Taimor Afridi
…. Petitioner
Versus
The State & another
…. Respondents
For the Petitioner
Malik Waheed Anjum, ASC
Mr. Arshad Ali Chaudhry, AOR
For the State
Mr. Asjad Javed Ghurral, Addl. P.G.
a/w Mr. Imtiaz Ahmed Butt, SHO
Asghar Ali, S.I.
For the Complainant
Mr. Zulfiqar Ahmed Bhutta, ASC
Date of hearing
05.6.2013
ORDER
Heard learned counsel for the parties. Learned
Additional Prosecutor General candidly conceded that so far
prosecution has not collected incriminating evidence against the
petitioner to justify her involvement/detention.
2.
We fail to understand that when there was no
incriminating evidence as to why the police caused the arrest of
Crl.P. 170/2013
2
the petitioner who is stated to be of 15 years of age and
subsequent thereto despite of subjecting her to investigation no
evidence was brought on record then why she was sent to
judicial lockup. In this behalf the Supervisory Officer,
responsible to monitor the investigation of the subordinate
officers, is equally responsible. Not only this, the Magistrate
Raja Faisal Rasheed who had been granting remand, should
have also looked into the file instead of remanding the petitioner
to police custody without any justification. Under section 167
Cr.P.C. it is the duty of the Magistrate to satisfy himself that
there are grounds for believing that the accusation or
information is well founded for justifying custody of an accused
with the police.
3.
In the circumstances we allow ad-interim bail to the
petitioner Haseeba Taimoor Afridi d/o Taimoor Afridi subject to
her furnishing personal bond in the sum of Rs.5,000/- (Rupees
five thousand) only to the satisfaction of the Ilaqua Magistrate.
4.
Explanation be called for from the SSP In-charge of
Investigation,
the
SHO
as
well
as
the
Investigating
Officer/Officers, named above, to state the reason for causing
arrest and detention of the petitioner.
5.
The Magistrate shall also send his explanation
through the Sessions Judge, Rawalpindi, to explain as to why
without adhering to the relevant provisions of law, noted
Crl.P. 170/2013
3
hereinabove, in a mechanical manner police remand was
granted permission of judicial remand was granted followed by
judicial remand as presently she is in custody in Adiala Jail.
Put up on 7th June, 2013.
Chief Justice
Judge
Judge
Islamabad
05th June, 2013
(Zulfiqar)
|
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE YAHYA AFRIDI
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
MR. JUSTICE MUHAMMAD ALI MAZHAR
CRIMINAL PETITION NOs. 1710-L & 1329 OF 2017
(Against the judgment dated 14.11.2017 passed by the Lahore
High Court, Lahore in Murder Reference No. 414/2014 and
Criminal Appeal No. 2278/2014)
Maqsood Alam
(In Cr.P. 1710-L/2017)
Mukhtar Ahmed, complainant
(In Cr.P. 1329/2017)
…Petitioner(s)
VERSUS
The State etc
(In Cr.P. 1710-L/2017)
Maqsood Alam etc
(In Cr.P. 1329/2017)
…Respondent(s)
For the Petitioner(s):
Sardar Muhammad Latif Khan Khosa, Sr. ASC
(In Cr.P. 1710-L/2017)
Mr. Aftab Ahmed Bajwa, ASC
Sh. Mahmood Ahmad, AOR
(In Cr.P 1329/2017)
For the State:
Mirza Abid Majeed, DPG
Date of Hearing:
12.10.2023
JUDGMENT
CRIMINAL PETITION NO. 1710-L OF 2017
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Petitioner Maqsood Alam along
with four co-accused was tried by the learned Additional Sessions Judge,
Khushab, in a private complaint lodged under Sections 302/109/34 PPC.
The private complaint was instituted being dissatisfied with the
investigation conducted by the Police in case registered vide FIR No. 102
dated 01.12.2011 under Sections 302/109/34 PPC at Police Station
Noshehra District Khushab for committing murder of Muhammad Munir
and Muhammad Anwaar, maternal uncle and brother of the complainant.
The learned Trial Court vide its judgment dated 20.12.2014 while
CRIMINAL PETITION NOs. 1710-L & 1329 OF 2017
-: 2 :-
acquitting the co-accused of the petitioner, convicted the petitioner under
Section 302(b) and sentenced him to death on two counts. He was also
directed to pay Rs.100,000/- on two counts as compensation to the legal
heirs of each deceased or in default whereof to further undergo SI for six
months. In appeal the learned High Court while maintaining the conviction
of the petitioner Maqsood Alam, altered the sentence of death into
imprisonment for life on two counts. The amount of compensation and
the sentence in default thereof was also maintained. Benefit of Section
382-B Cr.P.C. was also extended to the petitioner.
2.
The prosecution story as given in the judgment of the
learned High Court reads as under:-
“2.
Prosecution story, as set out in the FIR (Ex.PJ) registered on the
statement of Mukhtar Ahmad, complainant (PW.7) is that he was
employed in Atomic Energy, Chowk Grot Jauharabad. Muhammad Munir
maternal uncle (mamoon) of complainant was Deputy Manager in PASCO
Department at Sargodha. On 01.12.2011 at around 2.20 p.m. the
complainant along with his maternal uncle Muhammad Munir came to
their native village Mauza Dhadhar for offering fateha khawani of their
forefathers. Muhammad Munir and Muhammad Anwaar brother of
complainant went to graveyard of Mauza Dhadhar for offering fateha
khawani. Subsequently, the complainant, his cousin (khalazad) Elahi
Bakhsh and Sarwar Noor proceeded towards graveyard. When maternal
uncle and brother of complainant were offering fateha khawani, all of a
sudden, Maqsood Alam (appellant) armed with rifle and an unknown co-
accused armed with pistol 30 bore arrived at graveyard and raised lalkara
that they would not spare them (maternal uncle and brother of
complainant). Then Maqsood Alam (appellant) fired at maternal uncle of
complainant which landed on right side of his chest. Second fire made by
Maqsood Alam also hit him on upper outer left side of chest. Maqsood
Alam fired third shot which landed on back side of right elbow of
complainant's maternal uncle. Fourth fire made by the appellant hit
maternal uncle of complainant underneath his right buttock, who fell
down. Unknown co-accused fired with pistol at Muhammad Anwaar
brother of complainant hitting him on left outer side of chest below
armpit. Then Maqsood Alam (appellant) made another fire shot which
landed on abdomen of maternal uncle of complainant. Both the injured
fell on the ground. On seeing the complainant party, Maqsood Alam and
unknown co-accused decamped from the spot. The complainant party
reached the spot but Muhammad Munir and Muhammad Anwaar
succumbed to the injuries.
Motive behind the occurrence as alleged in the FIR was that
disputes regarding rishta were going on between the complainant party
and Maqsood Alam (appellant) etc. It was further alleged that the
occurrence was committed by Maqsood Alam etc. on the abetment of
Mehboob Elahi, Bashir Alam and Amir Karim, which occurrence was
CRIMINAL PETITION NOs. 1710-L & 1329 OF 2017
-: 3 :-
witnessed by the complainant, his khalazad Elahi Bakhsh and Sarwar
Noor. Dead bodies of both the deceased were taken to Civil Hospital,
Noshehra on separate private vehicles. The unknown co-accused of the
appellant was nominated as Fawad Alam by the complainant through
supplementary statement on 17.12.2011.”
3.
The conviction of the petitioner was recorded in a private
complaint. The complainant produced cursory statements whereafter the
formal charge was framed against the petitioner. In order to prove its case
the prosecution produced eight PWs and six CWs. In his statement
recorded under Section 342 Cr.P.C, the petitioner pleaded his innocence
and refuted all the allegations leveled against him. He did not make his
statement on oath under Section 340(2) Cr.P.C in disproof of allegations
leveled against him. However, he produced some documentary evidence
in his defence.
4.
At the very outset, learned counsel for the petitioner argued
that the witnesses of the ocular account were chance and related
witnesses
and
there
are
glaring
contradictions
and
dishonest
improvements in their statements, which escaped the notice of the
learned courts below. Contends that the prosecution story is negated by
the medical evidence, therefore, the same has lost its sanctity and the
conviction cannot be based upon it. Contends that the recoveries and the
motive have been disbelieved by the learned courts below, which causes a
doubt in the prosecution case. Contends that on the same set of evidence,
the co-accused of the petitioner namely Fawad Alam, who was ascribed
the similar role has been acquitted but the petitioner has been convicted
without any further corroboration. Lastly contends that the reasons given
by the learned High Court to sustain conviction of the petitioner are
speculative and artificial in nature, therefore, the impugned judgment may
be set at naught.
5.
On the other hand, learned Law Officer assisted by learned
counsel for the complainant vehemently opposed this petition on the
ground that prosecution witnesses had no enmity with the petitioner to
CRIMINAL PETITION NOs. 1710-L & 1329 OF 2017
-: 4 :-
falsely implicate him in this case. It has been contended that to sustain
conviction of the petitioner, the prosecution has placed on record
trustworthy and reliable evidence, therefore, the petitioner does not
deserve any leniency from this Court, rather his sentence may be
enhanced.
6.
We have heard learned counsel for the parties at some
length and have perused the evidence available on the record with their
able assistance.
7.
A bare perusal of the record reflects that the unfortunate
incident wherein two persons lost their lives took place on 01.12.2011 at
about 02:20 pm in the graveyard of Mauza Dhadhar, District Khushab.
Initially, the petitioner Maqsood Alam and one unknown person were
nominated to have committed the crime. The petitioner Maqsood Alam
was ascribed the role of causing injuries with rifle to Muhammad Munir,
maternal uncle of the complainant, while the unknown accused was
ascribed the role of causing firearm injuries with pistol at the body of
Muhammad Anwaar, brother of the complainant. The complainant
Mukhtar Ahmed (PW-7) and Elahi Bakhsh (PW-8) were said to have
witnessed the whole occurrence. The complainant firstly disclosed the
name of the co-accused as Fawad Alam on 17.12.2011 through his
supplementary statement. However, the said Fawad Alam was acquitted
by the learned Trial Court mainly on the ground that it was broad day
occurrence whereas the PWs and the accused persons were residents of
the same village Dhadhar. There is nothing on the record that Fawad Alam
was not resident of the same village rather he had studied in High School
at Noshehra, which clearly reflects that he had been living in the same
village till attaining the age of puberty. There is no denial to this fact that
the eye-witnesses are closely related to each other and even the
relationship with the accused is not denied, which has been admitted by
them. The PWs were acquainted with the accused being the co-villagers. In
view of the fact that the parties were known to each other, non-
mentioning the name of the co-accused Fawad Alam in the crime report
CRIMINAL PETITION NOs. 1710-L & 1329 OF 2017
-: 5 :-
shifted the burden on the shoulder of the prosecution to assign justiciable
reasons for non-identification of Fawad Alam at the time of occurrence viz
a viz the non-mentioning of his name in the crime report, especially when
it is an admitted fact that it is not the case of prosecution that the accused
committed the crime with muffled faces. According to Ghulam Bahoo (PW-
5) and Ahmad Nawaz (PW-6), two days prior to the occurrence i.e. on
29.11.2011, they were present in the graveyard in connection with the
funeral ceremony of one Ahmad Khan wherein they overheard petitioner
Maqsood Alam showing his inclination regarding the instant occurrence.
The learned Trial Court while acquitting co-accused Fawad Alam rightly
observed that when the PWs had overheard the malicious intent of
petitioner Maqsood Alam with the allegiance of Fawad Alam on
29.11.2011 then it was obligatory for them to disclose the same with
particulars of Fawad Alam to the complainant as well as while making
statements under Section 161 Cr.P.C. Although the complainant
challenged the acquittal of said Fawad Alam before the learned High Court
by filing a petition against acquittal but later on withdrew the same, which
means that the findings of the learned Trial Court regarding the acquittal
attained finality and the prosecution case to the extent of murder of
Muhammad Anwaar has been disbelieved. In these circumstances, more
caution was needed to decide the case of the petitioner Maqsood Alam.
We have noted that the complainant was employee of Pakistan Atomic
Energy Commission, Jauharabad, which was at a distance of 100
kilometers from the place of occurrence. During the course of proceedings
before the Trial Court, an attested copy of attendance register (Ex.DM)
was placed on record, which shows that on the day of occurrence the
complainant was present in his office. We have also noted that according
to the witnesses, the accused fired at the deceased from a distance of 3/4
karams but the medical record shows that there was blackening and
charring around the wounds, which suggests that the injuries were caused
from a close range, which further negates the ocular account. There were
only two eye-witnesses of the occurrence, who admittedly, have been
disbelieved to the extent of co-accused of the petitioner. We have noted
CRIMINAL PETITION NOs. 1710-L & 1329 OF 2017
-: 6 :-
that the recovery from the petitioner Maqsood Alam is inconsequential
because admittedly no crime empty was collected from the place of
occurrence. Motive has also rightly been disbelieved by the learned High
Court by holding that it is a vaguely formulated motive and no evidence in
support of the same has been placed on record. When the ocular account
of the two eye-witnesses had been disbelieved by the learned Trial Court
against the acquitted co-accused, who was alleged to have played a similar
role in the occurrence, then the same evidence could not be relied upon to
convict the petitioner on capital punishment unless there was an
independent corroboration and some strong incriminating evidence to the
extent of his involvement in commission of the offence but as discussed
above the same is lacking in the instant case. In the case of Niaz Vs. The
State (PLD 1960 SC 387) B.Z. Kaikaus, J. speaking for the Court held as
under:-
“if the Court finds that the number mentioned by interested
persons may have been exaggerated their word cannot be made
the basis of conviction and the Court will have to look for some
additional circumstance which corroborates their testimony. This
circumstance need not be such that it can of its own probative force
bring home the charge to the accused. It should, however, be a
circumstance which points to the inference that the particular
accused whose case is being considered did participate in the
commission of the offence. The force that such circumstance should
possess in order that it may be sufficient as corroboration must
depend on the particular circumstance of each case. However, the
circumstance itself must be proved beyond all reasonable doubt.”
8.
In Nazir Vs. The State (PLD 1962 SC 269) this Court explained
the Niaz supra judgment in the following terms:-
“There cannot be an inflexible rule that the statement of an
“interested” witness can never be accepted without corroboration.
By what was said in Niaz Vs. The State (PLD 1960 SC 387) it was not
meant to lay down any rule of law though it explained for the
guidance of Courts the Supreme Court’s approach to the problem
that generally confronts the Courts in cases of crime by violence.
There may be an interested witness whom the Court regards
as incapable of falsely implicating an innocent person. But he will be
an exceptional witness and, so far as an ordinary interested witness
CRIMINAL PETITION NOs. 1710-L & 1329 OF 2017
-: 7 :-
is concerned, it cannot be said that it is safe to rely upon his
testimony in respect of every person against whom he deposes. In
order, therefore, to be satisfied that no innocent persons are being
implicated along with the guilty, the Court will in the case of an
ordinary interested witness look for some circumstance that gives
sufficient support to his statement so as to create that degree of
probability which can be made the basis of conviction. This is what
is meant by saying that the statement of an interested witness
ordinarily needs corroboration.”
9.
It is settled principle of law that the conviction must be
based on unimpeachable, trustworthy and reliable evidence. Any doubt
arising in prosecution case is to be resolved in favour of the accused and
burden of proof is always on prosecution to prove its case beyond
reasonable doubt. It is also an established principle of law and equity that
it is better that 100 guilty persons should let off but one innocent person
should not suffer. The peculiar facts and circumstances of the present case
are sufficient to cast a shadow of doubt on the prosecution case, which
entitles the petitioner benefit of the doubt not as a matter of grace and
concession but as of right. For the accused to be afforded this right of
the benefit of the doubt, it is not necessary that there should be many
circumstances creating uncertainty and if there is only one doubt, the
benefit of the same must go to the accused. Reliance is placed on Mst.
Asia Bibi Vs. The State (PLD 2019 SC 64), Tariq Pervaiz v. The State (1995
SCMR 1345), Ayub Masih v. The State (PLD 2002 SC 1048) and Abdul
Jabbar vs. State (2019 SCMR 129).
10.
For what has been discussed above, this petition is
converted into appeal, allowed and the impugned judgment is set aside.
The petitioner is acquitted of the charge. He shall be released from jail
unless detained/required in any other case.
CRIMINAL PETITION NO. 1329 OF 2017
11.
In view of the judgment passed in the connected Criminal
Petition No. 1710-L/2017, this petition seeking enhancement of the
sentence awarded to the petitioner/convict Maqsood Alam has become
infructuous and the same is dismissed accordingly.
CRIMINAL PETITION NOs. 1710-L & 1329 OF 2017
-: 8 :-
12.
The above are the detailed reasons of our short order of
even date.
JUDGE
JUDGE
JUDGE
Islamabad, the
12th of October, 2023
Approved For Reporting
Khurram
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE MAQBOOL BAQAR
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
MR. JUSTICE JAMAL KHAN MANDOKHAIL
CRIMINAL PETITION NO. 172-P OF 2021
(On appeal against the judgment dated 15.11.2021
passed by the Peshawar High Court, Peshawar in Cr.
MBA No. 3288-P/2021)
Gul Nawab
… Petitioner
VERSUS
The State through A.G. KPK and another
… Respondents
For the Petitioner(s):
Syed Abdul Fayaz, ASC
For the Complainant:
In person
For the State:
Mr. Arshad Hussain Yousafzai, ASC
Mr. Akbar Rehman, I.O
Date of Hearing:
25.01.2022
ORDER
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through the instant
petition under Article 185(3) of the Constitution of Islamic Republic of
Pakistan, 1973, the petitioner has assailed the order dated
15.11.2021 passed by the learned Single Judge of the Peshawar
High Court, Peshawar, with a prayer to grant post-arrest bail in case
registered vide FIR No. 732 dated 25.08.2012 under Sections
302/34 PPC at Police Station Nowshera Kalan, District Nowshera, in
the interest of safe administration of criminal justice.
2.
Briefly stated the allegation against the petitioner is
that he along with co-accused while armed with firearms attacked
on the complainant party and due to the fire shots made by them the
nephew of the complainant has lost his life.
3.
At the very outset, it has been argued by learned
counsel for the petitioner that the petitioner has been falsely roped in
Criminal Petition No. 172-P/2021
-: 2 :-
this case against the actual facts and circumstances. Contends that
the complainant has involved four accused in the present case and
the role ascribed to each one of them including the petitioner is of
general nature. Contends that four empties of 7.62 bore were
collected from the spot whereas no weapon has been recovered from
the possession of the petitioner, therefore, it cannot be said with
certainty as to whose fire hit the deceased. Contends that in-fact the
complainant party was aggressor and one person from the
petitioner’s side also lost his life during the incident and in this
regard the petitioner’s side has also lodged FIR bearing No.
733/2012 under Sections 302/34 PPC against the complainant
party on the same day and time. Lastly contends that the case of
the petitioner falls within the ambit of further inquiry, therefore, he
may be granted bail in the interest of justice.
4.
On the other hand, learned State counsel has defended
the impugned order whereby post-arrest bail has been declined to
the petitioner. He contended that the petitioner has been specifically
nominated in the crime report with a specific role of firing at the
deceased and he remained absconder for a long period of nine
years, which shows his guilty mind, therefore, he does not deserve
any leniency by this Court. He placed reliance on Nasir Muhammad
Wassan Vs. The State (1992 SCMR 501) to contend that mere
registration of cross-version could not be a ground for grant of bail.
5.
We have heard learned counsel for the parties at some
length and have perused the record with their able assistance.
Perusal of the contents of the crime report clearly reflect
that the petitioner along with co-accused launched murderous
assault on the complainant party while using firearms resulting into
death of the nephew of the complainant. We have noted that only a
general role of firing has been ascribed to the petitioner without any
specification qua (i) kind of weapon, (ii) part of the body which has
been hit, and (iii) any recovery of the empties from the place of
occurrence specifying the accusation against the petitioner. We are
conscious of the fact that four empties of 7.62 bore were taken into
possession by the Investigating Officer. However, no recovery has
been affected from the petitioner after he was taken into custody.
Criminal Petition No. 172-P/2021
-: 3 :-
Perusal of the crime report clearly reflects that the complainant has
not mentioned any overt act towards the opposite party whereas it
is clear stance of the petitioner that in-fact the complainant party
had shown aggression and initiated the occurrence. In this regard,
separate FIR bearing No. 733/2012 under Sections 302/34 PPC has
been registered on the same day and time. There is no denial to this
fact that the occurrence described in the other crime report was not
outcome of the same occurrence, which clearly reflects that the
complainant has concealed the real facts while lodging the crime
report in which the petitioner is seeking the relief of bail. It is
established principle of law that when there are two versions of the
occurrence, it squarely invites the provisions of Section 497(2)
Cr.P.C. calling for further probe into the occurrence, which is
apparent in this case. So far as the argument of learned Law Officer
that the petitioner remained absconder for a period of nine years is
concerned, we are of the view that mere absconsion cannot be a
ground to discard the relief sought for as it is established principle of
law that disappearance of a person after the occurrence is but
natural if he is involved in a murder case rightly or wrongly.
Reliance is placed on Rasool Muhammad Vs. Asal Muhammad (PLJ
1995 SC 477). Another judgment wherein the petitioner remained
absconder for considerable time and was involved in many other
criminal cases but despite that he was given bail on merits is
Moundar and others Vs. The State (PLD 1990 SC 934). Reliance is
also placed on Muhammad Tasaweer Vs. Hafiz Zulkarnain (PLD
2009 SC 53). This Court in various judgments has held that mere
absconsion is not a proof of guilt, hence, cannot be made sole
ground to discard the relief sought for. Even otherwise, it is most
cardinal principle of law that each criminal case has its own facts
and circumstances and that have to be weighed accordingly.
Learned Law Officer has relied upon a judgment of this Court
wherein mere registration of counter version was not considered as
a ground for grant of bail. However, this principle is not absolute in
any manner as in the instant case both the sides have lost a life and
are placed on equal proportion regarding culpability and the factum
of aggression would be resolved by the learned Trial Court after
recording of evidence. As a consequence, we convert this petition
Criminal Petition No. 172-P/2021
-: 4 :-
into appeal, allow it and set aside the impugned order dated
15.11.2021. The petitioner is admitted to bail subject to his
furnishing bail bonds in the sum of Rs.500,000/- with one surety in
the like amount to the satisfaction of learned Trial Court.
JUDGE
JUDGE
JUDGE
Islamabad, the
25th of January, 2022
Approved For Reporting
Khurram
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE MUNIB AKHTAR
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
CRIMINAL PETITION NO. 1720 OF 2022
(On appeal against the judgment dated 14.11.2022
passed by the Peshawar High Court, Bannu Bench in
BA No. 543B/2022)
Noor Kamal and Asad Kamal @ Syed Kamal
… Petitioners
VERSUS
The State and another
… Respondents
For the Petitioners:
Mr. Ahmad Ali, ASC
Mr. Anis Muhammad Shahzad, AOR
For the State:
Sardar Ali Raza, Addl. A.G.
Mr. Amir Khan, SHO
Mr. Waheed Ullah, I.O.
For the Complainant:
In jail
Date of Hearing:
30.03.2023
ORDER
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through the instant petition
under Article 185(3) of the Constitution of Islamic Republic of Pakistan,
1973, the petitioners have assailed the judgment dated 14.11.2022 passed
by the learned Single Judge of the Peshawar High Court, Bannu Bench,
with a prayer to grant post-arrest bail on statutory ground in case
registered vide FIR No. 515 dated 13.05.2021 under Sections 324/34 PPC
at Police Station Naurang, Lakki Marwat, in the interest of safe
administration of criminal justice.
2.
Briefly stated the allegation against the petitioners is that
they while armed with firearms launched a murderous attack on the
complainant party and made fire shots, which hit the complainant and the
witness Mashal Khan on left rib and left knee respectively. After their
CRIMINAL PETITION NO. 1720 OF 2022
2
arrest, the petitioners approached the learned Trial Court for grant of
post-arrest bail but the learned Trial Court dismissed their bail petition
vide order dated 21.06.2021, which was upheld by the learned High Court
vide judgment dated 27.08.2021. Thereafter, the petitioners filed fresh
bail petitions before the learned Trial Court on statutory ground, but the
same were dismissed vide order dated 20.07.2022. This order was upheld
by the learned High Court vide impugned judgment dated 14.11.2022.
Hence, this petition seeking leave to appeal.
3.
At the very outset, it has been argued by learned counsel for
the petitioners that the petitioners have been falsely roped in this case
against the actual facts and circumstances of the case. Contends that the
petitioners are behind the bars for the last more than 22 months and the
conclusion of trial is not in sight in near future, therefore, they are entitled
for the grant of post-arrest bail on statutory ground. Contends that the
delay in conclusion of the trial is not attributable to the petitioners rather
the same occasioned due to the prosecution. Contends that the co-
accused of the petitioners has been granted post-arrest bail by this Court,
therefore, the petitioners also deserve the same treatment to be meted
out. Contends that in-fact the complainant party was aggressor and two
persons from the petitioners’ side have been done to death by the
complainant party and a crime report in this regard was promptly lodged.
Contends that the instant crime report is an attempt to pressurize the
petitioners’ side to gain ulterior motives.
4.
On the other hand, learned Law Officer defended the
impugned order by contending that the petitioners have been specifically
nominated in the crime report with a specific allegation of attempting to
take life of the complainant, therefore, they do no deserve any leniency
from this Court.
5.
We have heard learned counsel for the parties at some
length and have perused the record with their assistance.
CRIMINAL PETITION NO. 1720 OF 2022
3
As per the contents of the crime report, the allegation
against the petitioners is that they while armed with firearms launched a
murderous assault on the complainant party and made fire shots, which
hit the complainant and the witness Mashal Khan on left rib and left knee
respectively. However, it is stance of the petitioners that in-fact the
complainant party was aggressor and committed murder of two persons
from petitioners’ side. The petitioner Noor Kamal has also got registered
FIR bearing No. 514 dated 13.05.2021 under Sections 302/324/34 PPC at
Police Station Naurang, Lakki Marwat against the complainant party. We
have noted that in the instant case only a general role has been ascribed
to the petitioners and co-accused and no details have been given as to
which accused fired at which injured. Admittedly, the petitioners did not
repeat the fire, which prima facie shows that they had no intention to kill
the victims. The petitioners are behind the bars since 14.05.2021 and
despite lapse of more than 22 months, the conclusion of trial is not insight
in near future. Learned counsel for the petitioners informed us that the
delay is not attributable to the petitioners. On our specific query, learned
Law Officer admitted the stance of the petitioners. A plain language of
proviso 3 to sub-Section (1) of Section 497 Cr.P.C. clearly reveals that in
cases of non-bailable offences, which are not punishable with death where
the accused has been detained for a continuous period exceeding one year
and it is found that the delay in the trial has not been occasioned due to
any act or omission of the accused, the Court shall direct that the accused
be released on bail. This Court has time and again held that liberty of a
person is a precious right, which cannot be taken away without
exceptional foundations. The co-accused of the petitioners namely Usman,
who was ascribed the similar role, has been granted post-arrest bail by this
Court, therefore, the petitioners are entitled for the concession of post-
arrest bail on this score alone. Taking into consideration all the facts and
circumstances stated above, we are of the view that the case of the
petitioners squarely falls within the ambit of Section 497(2) Cr.P.C.
entitling for further inquiry into their guilt.
CRIMINAL PETITION NO. 1720 OF 2022
4
6.
For what has been discussed above, we convert this petition
into appeal, allow it and set aside the impugned judgment. The petitioners
are admitted to bail subject to their furnishing bail bonds in the sum of
Rs.100,000/- each with one surety each in the like amount to the
satisfaction of learned Trial Court.
JUDGE
JUDGE
Islamabad, the
30th of March, 2023
Approved For Reporting
Khurram
|
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mushir Alam
Mr. Justice Yahya Afridi
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition Nos.172 of 2020 & 140 of 2021
(Against the judgment dated 23.1.2020 passed by
the High Court of Sindh, Sukkur Bench in Crl.
Revision No.D-28/2013 – and against the judgment
dated 01.02.2021 passed by the High Court of Sindh
Sukkur Bench in Crl. Jail Appeal No.S-30/2013)
Abdul Sattar Mahar
(in both cases)
…Petitioner(s)
Versus
The State & another
(in both cases)
…Respondent(s)
For the Petitioner(s):
Mr. Aftab Alam Yasir, ASC
Syed Rifaqat Hussain Shah, AOR
For the State:
Mr. Hussain Bux Baloch,
Addl. Prosecutor General, Sindh
Date of hearing:
30.03.2021.
JUDGMENT
Qazi Muhammad Amin Ahmed, J.- Dodo son of
Muhammad Azeem, indicted by a learned Additional Sessions Judge at
Ubaro on the complaint of Abdul Sattar Mahar, no other than his nephew,
for committing Qatl-i-Amd of his sister, 19; Rais Kouro (PW-1) survived the
assault with a gunshot wound, statedly, on his chest, in the backdrop of a
dispute over immovable property; convicted on both counts, he was
sentenced to imprisonment for life and 10-years R.I. respectively with a
direction to pay compensation as well as fine vide judgment dated
23.04.2013, assailed before the High Court of Sindh. The High Court
despite noting “sufficient discrepancies” and while taking into account the
period of incarceration underwent by the convict, proceeded to reduce the
sentence to the period already undergone and disposed of the appeal vide
impugned judgment dated 01.02.2021, vires whereof, are being assailed
by the complainant through two separate petitions i.e. Cr.P. No.172 of
2021 and Cr. P. No.140 of 2021.
Criminal Petition Nos.172 of 2020 & 140 of 2021
2
2.
Learned
counsel
for
the
petitioner
contends
that
notwithstanding
certain
observations
apparently
favouring
the
respondent, there was no occasion for the learned Judge-in-Chamber to
reduce respondent’s sentence to the period already undergone by him
while maintaining his conviction under clause (b) of section 302 of the
Pakistan Penal Code, 1860, that mandatorily provides penalty of death or
life imprisonment. It is lastly argued that the prosecution had successfully
driven home the charge on the strength of natural witnesses, i.e. inmates
of the house of occurrence that included an injured as well in the face of
motive clearly establishing a breach between the relations in the first
degree.
Send for the respondent through bailable warrants in the sum
of Rs.100,000/- with one surety in the like amount, returnable to the
Deputy Registrar (Judicial) of this Court. District Police Officer Ghotki
shall ensure execution of warrant within 30 days of receipt of this order.
Judge
Judge
Judge
Islamabad, the
30th March, 2021
Not approved for reporting
Azmat/-
|
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|
IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE IJAZ UL AHSAN
MR, JUSTICE MUNIB AKHTAR
MR. JUSTICE SAWED MAZAHAR ALl AKBAR NAQVI
CRIMINAL PETITION NO. 1802-1 OF 2017
(On appeal against the judgment dated 3110.2017 passed by the
Lahore High Court, Lahore in Murder Reference No. 406/2015 &
Criminal Appeal No. 2129/2015)
Sajjad Hussain
Petitioner
VERSUS
The State etc
Respondents
For the Petitioner:
Sardar Muhammad Latif Khan Khosa, Sr. ASC
For the State: Mirza Muhammad Usman, DPG
Date of Hearing:
21.04.2022
JUDGMENT
SAYYED MAZAHAR All AKBAR NAQVI. J.- Petitioner Sajjad Hussain along
with five co-accused was tried by the learned Additional Sessions Judge,
Khushab pursuant to a private complaint under Sections
302/324/148/149/109 PPC in FIR No. 89 dated 21.05.2012 under Sections
302/324/148/149 PPC at Police Station Katha Saghral, District Khushab for
committing murder of Noor Hussain and Chulam Abbas, brother and
cousin of the complainant and for causing injuries to one Sabir Hussain.
The learned Trial Court vide its judgment dated 29.10.2015 convicted the
petitioner under Section 302(b) PPC and sentenced him to death on two
counts. He was also directed to pay Rs.10,00,000/- as compensation to the
legal heirs of each deceased or in default whereof to further undergo SI for
six months. The co-accused Rab Nawaz was acquitted of the charge.
However, the remaining co-accused were convicted under Section 302(b)
PPC and were sentenced to imprisonment for life. In appeal, the learned
High Court while acquitting the co-accused and while maintaining the
CRIMINAL PETITION NO, 1802-1 OF 2017
2
conviction of the petitioner under Section 302(b) PPC, altered the
sentence of death into imprisonment for life on two counts. The amount
of compensation and the sentence in default whereof was maintained.
Both the sentences were ordered to run concurrently with benefit of
Section 382-B Cr.P.C.
2. The prosecution story as narrated by the complainant in the
private complaint and as given in the judgment of the learned Trial Court
reads as under:-
"4. Being dis-satisfied from the Investigation, the complainant
filed the instant private complaint Ex.PM on 17.06,2013, wherein he
stated that he is resident of Katha Saghral. Ghulam Abbas deceased
is his real brother and Noor Hussain deceased is his cousin/Khala
Zad. The accused lmdad Hussain and Sajjad Hussain are real brothers
inter Se and are real nephew/Bhatija of accused Muhammad All who
is also father-in-law of accused lmdad Hussain. The accused
Muhammad Saleem and Muhammad Karim are real brothers inter
se and are real uncles of accused lmdad Hussain and Sajjad Hussain.
The accused Muhammad Munir, Saleem and Karim are uncles and
cousins/Phophi zad inter se. Accused Muhammad Naeem is
nephew/Shanja of accused Karim and Saleem who is also cousin /
Khala Zad of accused Imdad Hussain and Sajjad, in this way all the
accused are close relatives inter se. On 225.2012 when the
complainant alongwith his brother Khadim Hussain, Ghaus
Muhammad 5/0 Mian Muhammad caste Jangla, Muhammad Sarfraz
s/o Fateh Sher caste Chadhar resident of Katha Saghral were present
on Katha Adda and at about 5.00 p.m his brother Noor Hussain,
Ghulam Abbas s/o Allah Ditta cousin/Khala Zad came on car No.
1165/BDIK Model 1982 driven by Rab Nawaz s/o Cost Muhammad
caste Ohool resident of Katha Saghral who was driver of the car
came on Adda and remained stopped with them for some time. At
5.30 p.m. Noor Hussain and Ghulam Abbas took the vehicle and
moved towards their house. When they reached a few paces ahead
towards north in front of Hassan Iron Store, suddenly accused lmdad
Hussain (since P0), Sajjad Hussain both sons of Wali Muhammad,
Muhammad Au s/o Sher Muhammad caste Snadha, Muhammad
Naeem s/c Muhammad Munir caste Chadhar r/o Katha Saghral, all
armed with Kalashnikovs came from left side of the vehicle. lmdad
Hussain (since P0) discharged a burst of his Kalashnikov which shot
hit on front side of neck, chest and face of Ghulam Abbas deceased.
The second burst was discharged by Sajjad Hussain accused which
shots hit Noor Hussain on front of his chest and both the arms.
Muhammad Ali and Muhammad Naeem made indiscriminate firing
which shots hit on left side door and pillar of vehicle. In the
meanwhile accused Muhammad Karim, Muhammad Saleem sons of
Malook Khan, Muhammad Munir son of Mureed Hussain caste
Chadhar residents of Katha Saghral armed with Kalashnikovs came
from right side of the vehicle. They also made straight firing on Noor
Hussain and Ghulam Abbas which shots hit on different parts of the
CRIMINAL PETITION NO. 1802-L OF 2017
3
deceased persons while passing through the body of the vehicle.
Due to the firing of accused, one Sabir Hussain 5/0 Wall Muhammad
caste Dhool resident of Katha Saghral had sustained injuries from
the hands of the accused. The marks of fire shots are also present on
the shutter of adjacent shop to that of "Hassan Iron Store". The
driver Rab Nawaz remained safe luckily. Noor Hussain and Ghulam
Abbas succumbed to the injuries in the vehicle.
5.
Motive behind the occurrence is that about 02 years before,
Ghulam Abbas deceased had committed murder of Wali
Muhammad, the father of lmdad Hussain accused (since P.0) but
subsequently a compromise was effected. The accused lmdad
Hussain etc kept the grudge in their heart and due to that grudge,
they committed Qatl-e-Amd of Noor Hussain and Ghulam Abbas and
they also attempted on the life of Sabir Hussain, who sustained
injuries in the occurrence."
3.
After completion of investigation, report under Section 173
Cr.P.C. was submitted before the Trial Court. In order to prove its case the
prosecution produced as many as 11 witnesses and 8 CWs. In his
statement recorded under Section 342 Cr.P.C, the petitioner pleaded his
innocence and refuted all the allegations leveled against him. However, he
did not make his statement on oath under Section 340(2) Cr.P.0 in
disproof of allegations leveled against him. He also did not produce any
evidence in his defence.
4.
At the very outset, learned counsel for the petitioner argued
that there are glaring contradictions and dishonest improvements in the
statements of the prosecution witnesses of the ocular account, which have
escaped notice of the courts below. Contends that the prosecution
witnesses of ocular account are chance/related witnesses and they were
also inimical towards the petitioner. Contends that on the same set of
evidence, the co-accused of the petitioner, who were ascribed the similar
role, have been acquitted of the charge whereas the petitioner has been
convicted. Contends that the petitioner was declared innocent by the
police in the report under Section 173 Cr.P.0 to the extent of any overt act
during occurrence, however, he was ascribed the role of abetment but the
same has also not been proved. Contends that no recovery has been
affected from the petitioner and there is no incriminating evidence against
CRIMINAL PETITION NO. 1802-L OF 2017
4
the petitioner to distinguish his case from that of the acquitted co-
accused. Contends that the prosecution has miserably failed to prove its
case against the petitioner beyond reasonable doubt, therefore, there was
no justification to convict the petitioner. Lastly contends that the
impugned judgment is based upon contradictory and discrepant evidence
and the same cannot be made basis to sustain conviction as per law and as
such the same requires interference to set aside in the interest of justice.
S. On the other hand, learned Law Officer has supported the
impugned judgment. He contended that the evidence led by the
prosecution in the shape of ocular version duly supported by medical
evidence is sufficient to sustain the conviction of the petitioner, therefore,
he does not deserve any leniency by this Court.
6. We have heard learned counsel for the parties at some
length and have perused the evidence available on record.
As per the prosecution story, when both the deceased
Ghulam Abbas and Noor Hussain were moving towards their house via car
No. 1165-BDIK, suddenly petitioner along with co-accused lmdad Hussain,
Muhammad Ali, Muhammad Naeem, all armed with Kalashnikovs came
from left side of the vehicle. The petitioner fired a burst shot which hit
Noor Hussain deceased on front of his chest and both the arms. Co-
accused lmdad Hussain, who has reportedly been murdered in Police
encounter, also fired a burst with Kalashnikov, which hit on front side of
neck, chest and face of Ghulam Abbas deceased. In the meanwhile
accused Muhammad Karim, Muhammad Saleem & Muhammad Munir
armed with Kalashnikovs came from right side of the vehicle and made
straight firing on Noor Hussain and Ghulam Abbas, which shots hit on
different parts of the deceased persons while passing through the body of
the vehicle. Although the petitioner has been assigned a specific role of
firing at the chest and arms of the deceased Noor Hussain, however, the
perusal of evidence suggests that the other co-accused namely
Muhammad Karim, Muhammad Sateem and Muhammad Munir had also
made straight fires on the deceased from right side of the car, which shots
CRIMINAL PETITION NO. 1802-L OF 2017
5
hit on different parts of the body of deceased persons. However, the
locale of the injuries sustained by the deceased due to the firing made by
these three co-accused has not been described. We have noted that
according to postmortem report, the deceased Noor Hussain sustained as
many as 14 injuries on his body whereas S were on his chest. There is
every possibility that the fire shots made by the above-named three co-
accused would have also hit the chest of the deceased. However, these co-
accused along with all other co-accused have been acquitted of the charge
either by the learned Trial Court through a separate trial or by the High
Court through the impugned judgment. There is also no denying the fact
that the Police in the report under Section 173 Cr.P.C. had not found the
petitioner involved in the occurrence and he was only found involved to
the extent of communication with co-accused lmdad Hussain via mobile
phone, who happens to be real brother of the petitioner. However,
neither the mobile phone nor Call Data Record was placed on record.
Furthermore, no memo of recovery of mobile phone was ever made. So
far as the allegation of abetment against the petitioner is concerned,
perusal of Section 107 PPC reveals that three ingredients are essential to
establish/charge any person as conspirator i.e. (i) instigation, (ii)
engagement with co-accused, and (iii) intentional aid qua the act or
omission for the purpose of completion of said abetment. However, all
these three ingredients of Section 107 PPC are squarely missing from the
record. The weapon of offence i.e. Kalashnikove has also not been
recovered from the petitioner. A bare perusal of the evidence available on
record shows that there is no incriminating evidence against the petitioner
to distinguish his case from that of the co-accused since acquitted. In
these circumstances, a shadow of doubt in the prosecution case has been
created, benefit of which must be given to the petitioner. It is settled law
that a single circumstance creating reasonable doubt in a prudent mind
about the guilt of accused makes him entitled to its benefits, not as a
matter of grace and concession but as a matter of right. The conviction
must be based on unimpeachable, trustworthy and reliable evidence. Any
doubt arising in prosecution case is to be resolved in favour of the
CRIMINAL PETITION NO. 18021. OF 2017
accused. However, as discussed above, in the present case the prosecution
has failed to prove its case beyond any reasonable shadow of doubt.
7. for what has been discussed above, this petition is
converted into appeal and allowed and the impugned judgment to the
extent of the petitioner is set aside. The petitioner is ordered to be
acquitted of the charge He shall be released from jail forthwith unless
detained in any other case. The above are the detailed reasons of our
short order of even date.
Islamabad, the
21st of April, 2022
Approved For Reporting
-
IT
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mushir Alam
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.1806-L of 2017
(Against the judgment dated 8-11-2017 passed by the Lahore High
Court Lahore in Crl. AppealNo.338-J/2014)
Shabbir Hussain
…Petitioner(s)
Versus
The State
…Respondent(s)
For the Petitioner(s):
Mr.Mazhar Iqbal Sidhu, ASC
For the State:
Raja Inam Ameen Minhas,
Special Prosecutor, ANF
Date of hearing:
09.09.2020.
ORDER
Qazi Muhammad Amin Ahmed, J.- On a tip off, Shabbir
Hussain, petitioner, accompanied by his wife Sakina Bibi and two
minor daughters was surprised by a contingent of Anti Narcotic Force
Faisalabad on 29.4.2013 in service area of Adda Johal. Upon search,
the couple was found in possession of 15.600 kg, separately held by
each in the bags carried by them; they claimed trial that resulted into
their convictions under section 9(c) of the Control of Narcotic
Substances, Act 1997; each was sentenced to imprisonment for life
vide judgment dated 18.6.2014. The High Court maintained the
convictions, however, substantially reduced the fine imposed by the
trial Court; sentence awarded to Sakina Bibi co-accused was also
reduced to the period already undergone by her vide impugned
judgment dated 8.11.2017, vires whereof are being assailed on the
grounds
that
it
is
extremely
improbable
that
the
petitioner
accompanied by his better half and two minor daughters would carry
Criminal Petition No.1806-L of 2017
2
such a huge cache of contraband; that despite availability none from
amongst the public came forward to attest the recovery, otherwise
suspect in view of discrepant statements of the witnesses; forensic
report, on samples belatedly dispatched, inherently deficient in
protocol details, was the last nail in the coffin, concluded the learned
counsel. The learned Law Officer, contrarily, faithfully defended the
judgment.
2.
Heard. Record perused.
3.
Recovered contraband is quite a cache, in the absence of
any apparent reason to falsely implicate the petitioner, by itself
negates, hypothesis of fake imposition, that too, on a person travelling
alongside his family, arrested at a place far away from his abode.
Presence of a lady constable who frisked and arrested the co-accused
goes a long way to support the prosecution case, suggestive of a
methodology not unusual in drug trafficking; purported semblance of a
family travelling together in routine appears to have been foiled by
receipt of timely information, a scenario seemingly probable in
circumstances.
Mehmood-ul-Hassan Inspector (PW-3) joined by Mumtaz Bibi
Lady Constable (PW-4) in the witness box furnished details of the
arrest and recovery. We have gone through their statements to find
them in a comfortable and confident unison on all the salient aspects
of the raid as well as details collateral therewith. Learned counsel for
the petitioner has not been able to point out any substantial or major
variation or contradiction in their statements that may possibly justify
to exclude their testimony from consideration. On the contrary, it
sounds straightforward and confidence inspiring without a slightest
tremor. Absence of a witness from the public, despite possible
availability is not a new story; it is reminiscent of a long drawn apathy
depicting public reluctance to come forward in assistance of law,
exasperating legal procedures and lack of witness protection being the
prime reasons. Against the above backdrop, evidence of official
witnesses is the only available option to combat the menace of drug
trafficking with the assistance of functionaries of the State tasked with
the responsibility; their evidence, if found confidence inspiring, may
implicitly be relied upon without a demur unhesitatingly; without a
blemish, they are second to none in status. Similarly, forensic report is
sufficiently detailed to conclusively establish narcotic character of the
Criminal Petition No.1806-L of 2017
3
contraband. The argument is otherwise not available to the petitioner
as he never disputed the nature of substance being attributed to him
nor attempted to summon the chemical analyst to vindicate his
position. A challenge illusory as well as hyper-technical is beside the
mark in the face of “proof beyond doubt” sufficient to prove the charge
to the hilt. Petition fails. Leave declined.
Judge
Judge
Islamabad, the
9th September, 2020
Not approved for reporting
Azmat/-
Criminal Petition No.1806-L of 2017
4
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mazhar Alam Khan Miankhel
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.18 of 2019
(Against the impugned judgment dated 11.12.2018
passed by the Peshawar High Court Peshawar in
Crl. Appeal No.687-P/2018)
Matti Ullah
…Petitioner(s)
Versus
The State
…Respondent(s)
For the Petitioner(s):
Malik Nasrum Minallah, ASC
Syed Rifaqat Hussain Shah, AOR
For the State:
Shah Faisal
Date of hearing:
01.07.2020.
ORDER
Qazi Muhammad Amin Ahmed, J.- Indicted by a Special
Court (CNS) at Peshawar for possessing cannabis, weighed as 7200
grams, the petitioner was returned a guilty verdict; convicted under
section 9(c) of the Control of Narcotic Substances Act, 1997, vide
judgment dated 21.7.2018, he was sentenced to 6-years rigorous
imprisonment with a direction to pay fine in the sum of Rs.100,000/-
or to undergo 6-months SI in default thereof, pre-trial period inclusive,
upheld by the High Court vide impugned judgment dated 11.12.2018,
vires whereof, are being assailed through the captioned petition.
2.
It is argued that the petitioner, a Frontier Constabulary
personnel, had been substituted as a scapegoat to let off the real
offender and this according to the learned counsel can be safely
gathered from discrepant statements of the recovery witnesses, spelling
out a story incompatible with the case set up in the crime report.
Criminal Petition No.18 of 2019
2
Forensic report has been assailed for being based upon a deficient
‘protocol’ lagging to conclusively confirm the narcotic character of the
contraband. Absence of a witness from the public, in a busy
neighbourhood, has been cited as a last straw for prosecution’s faialure
to drive home the charge beyond doubt.
3.
Heard.
4.
Prosecution
case
is
primarily
structured
upon
the
statements of Muhammad Ayub, SI (PW-2) and Abdul Hannan (PW-3);
they are attached with Anti Narcotic Force in the metropolis and had
statedly acted on a tip off to confront the petitioner at the designated
point; they subdued the petitioner with contraband and a motorbike,
both secured vide inventory of even date; cache weighing 7200 grams
cannot be viewed as an insignificant quantity. The witnesses
comfortably responded the cross-examination and the learned counsel
has not been able to point out any flaw or discrepancy in their
narratives either on salient features of the case or matters collateral
therewith; they are in a unison that inspires confidence and, thus,
absence of support from the public does not diminish value of their
testimony, fortified by a ring to truth. Reluctance by the public to stand
in aid of law is symptomatic of abysmal civic apathy which cannot be
allowed to be used as an escape route from justice. Being functionaries
of the Republic, both of them are second to none in status; their official
acts and declarations are statutorily presumed as intra vires and unless
proved contrarily and in the absence of any flaw or discrepancy in their
depositions, their testimony cannot be conditioned by additional riders.
Forensic report sufficiently details tests applied for determination
of narcotic character of the contraband, carried out on the samples
transmitted from safe custody and as such is not violative of ‘protocol’
directed by the rules.
Story of substitution may not find a buyer as well inasmuch as,
admittedly, a Frontier Constabulary official, the petitioner could not be
conceivably saddled with a fake imposition without a backlash. Even
otherwise, there appears no earthly reason for the officials to hound the
petitioner with no axe to grind in a crowded metropolis with a cache
substantial enough in volume as well as cost.
Conclusions unanimously drawn by the Courts below are
squarely founded on proper appraisal of prosecution evidence and on
our own independent analysis, we have not been able to find space to
Criminal Petition No.18 of 2019
3
entertain any hypothesis other than petitioner’s guilt. Petition fails.
Leave declined.
Judge
Judge
Islamabad, the
1st July, 2020
Not approved for reporting
Azmat/-
|
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1
CRIMINAL PETITIONs NO.197-K to 204-K, 211-K to 221-K AND 230-K OF 2019
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
MR. JUSTICE MUSHIR ALAM
MR. JUSTICE FAISAL ARAB
MR. JUSTICE QAZI MUHAMMAD AMIN AHMED
CRIMINAL PETITIONs NO.197-K to 204-K,
211-K to 221-K AND 230-K OF 2019
(Against order dated 10.10.2019 passed by High Court of
Sindh, Hyderabad Bench, in Crl.B.A.S-582 to S-587, S-589,
S-590, S-537 to S-543, S-591, S-593, S-598, S-599 and S-
577/2019)
Gulshan Ali Solangi
(in Cr.Ps.197-K to
203-K/19)
Ali Asghar Panhwar
(in Cr.P.204-K/19)
Muhammad Hussain Khokhar and another
(in Cr.Ps.211-K to
217-K/19)
Allah Bachio Panhwar
(in Cr.P.218-K/19)
Inam Hussain Abro
(in Cr.P.219-K /19)
Muzafar Ali Jaiser
(in Cr.P.220-K /19)
Ghulam Muhammad Kakepoto
(in Cr.P.221-K/19)
Ghulam Murtaza Butt
(in Cr.P.230-K/19)
…Petitioner(s)
VERSUS
The State thr. P.G. Sindh
…Respondent(s)
For the Petitioner(s):
(in Cr.Ps.197-K to 203-K/19)
(in Cr.P.204-K/19)
(in Cr.Ps.211-K to 221-K/19)
(in Cr.P.230-K/19)
Mr. Ahmed Ali Ghumro, ASC
Mr. Bashir Ahmed Almani, ASC
Mr. Abdul Mujeeb Pirzada, Sr. ASC
Syed Shafqat Ali Shah Masoomi, ASC
along with petitioners.
For the State:
Ms. Rahat Ahsan, Addl. PG Sindh.
(in all cases)
Date of Hearing:
05.12.2019
O R D E R
QAZI MUHAMMAD AMIN AHMED. Petitioners, though
nominated in different crime reports, nonetheless, are identically
placed inasmuch as they have been declined judicial protection of
anticipatory bail by the High Court of Sindh through various
2
CRIMINAL PETITIONs NO.197-K to 204-K, 211-K to 221-K AND 230-K OF 2019
orders of even date i.e. 10.10.2019. Controversy arises out of a
scam detected in Dadu District when thousands of bags alongwith
wheat were found missing/displaced from designated places.
Inquiries conducted by Anti Corruption Establishment, found the
petitioners,
having
been
systematically
involved
in
the
misappropriation, resulting into a colossal loss to the public
exchequer.
2.
Gulshan Ali Solangi, Head Clerk in the Department is
arrayed in as many as seven crime reports; alongside him,
Muhammad Hussain Khokhar and Mahram Pechuhu, private
individuals, being beneficiaries are on board in all the cases.
Ali Asghar Panhwar, Ghulam Murtaza Butt, Ghulam Hussain
Kakepoto, Muzaffar Ali Jaiser, Inam Hussain Abro, Food Inspectors
and Allah Bachio, Food Supervisor have been distinctly accused in
the above cases. In this common backdrop, these petitions are
being decided through this single order.
3.
In the face of findings recorded by the Investigation
Officers, on the basis of preliminary inquiry held on the strength of
various
statements,
learned
counsel
for
the
petitioners,
nonetheless, in a unison and with vehemence, controverted the
accusation. It is argued that in order to avoid possible damage to
the stock due to poor storage conditions, it was shifted to different
places without an axe to grind and as such being blameless,
petitioners are being hounded on a trump up charge for purposes
far from being bonafide, a position contested faithfully by the
learned Law Officer.
4.
Heard. Record perused.
3
CRIMINAL PETITIONs NO.197-K to 204-K, 211-K to 221-K AND 230-K OF 2019
5.
Except for the two, all the petitioners are in the service
of the Food Department, posted in positions at the places,
wherefrom huge wheat stock vanished, subsequently spotted at
outlets being run and managed by private entrepreneur;
explanation offered by the accused being preposterous merits
outright rejection.
Grant of pre-arrest bail is a remedy rooted into equity; at a
cost to hamper the investigation, this judicial protection is
extended, solely to save the innocent from the horrors of abuse of
process of law with a view to protect his dignity and honour. It
cannot be granted in every run of the mill criminal case,
particularly to the accused confronting prima facie charges
structured upon material/evidence, warranting custody, that too,
on the basis of positions/ pleas, verification whereof, is consequent
upon recording of evidence. Being in line with the law declared by
this Court, view taken by the High Court, does not calls for
interference. Petitions fail, leave refused.
JUDGE
JUDGE
ISLAMABAD
5th December, 2019
Azmat/ “Not approved for reporting”
JUDGE
4
CRIMINAL PETITIONs NO.197-K to 204-K, 211-K to 221-K AND 230-K OF 2019
|
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1
Crl. P. No. 198 of 2016.docx
SUPREME COURT OF PAKISTAN
( Appellate jurisdiction )
PRESENT:
Mr. Justice Dost Muhammad Khan
Mr. Justice Sardar Tariq Masood
CRIMINAL PETITION NO. 198OF 2016
(On appeal against the order dated09.02.2016 passed by Peshawar
High Court, Bannu Bench in Cr. M./Q.P. No. 58-B of 2015)
Asfandyar & another
Petitioners
Versus
Kamran & another
Respondents
For the petitioners:
Mr. Liaqat Ali Shah, ASC
Mr. Mehr Khan Malik, AOR (Absent)
Respondents:
Not represented
Date of hearing:
29.08.2016
ORDER
SARDAR TARIQ MASOOD, J.
Crl. M.A. No. 540 of 2016
For the reason mentioned in this Crl. M.A., same is allowed and the
additional documents are taken on record.
CRIMINAL PETITION NO. 198 OF 2016
Petitioner Asfandyar, through this petition, has sought leave to appeal
against the judgment dated 09.02.2016 passed by a learned Judge in
Chamber of the Peshawar High Court, Bannu Bench, through which Crl.
M./Q.P. No. 58-B of 2015, filed by complainant Kamran was allowed and
order of the learned Additional Sessions Judge, Takht-e-Nasrati, Karak dated
20.11.2015 was set aside.
2.
Brief facts of the case are that the petitioner along with another
was involved in case FIR No. 278 registered on 11.09.2014 at Police Station
Yaqoob Khan Shaheed, District Karak in respect of offences under Sections
302/324/34 P.P.C. in respect of the murder of Abdul Razzaq and Wali Jan
and attempt at the life of complainant and his uncle Muhammad Arif. Learned
Additional Sessions Judge (trial Court) during the trial on the request of
2
Crl. P. No. 198 of 2016.docx
petitioner/accused, vide order dated 20.11.2015 under Section 539-B Cr.P.C.,
appointed a Commission to visit the spot in order to ascertain the authenticity
of the site plan in respect of a wall shown as close end. Vide the same order,
the trial Court also allowed the accused person to place documents on record.
3.
The learned counsel argued that actually the Commission was
appointed when defence requested the trial Court to proceed against the
investigating officer for committing perjury and the Commission was
appointed in the said inquiry but conceded that no separate file for such
inquiry was prepared in this regard. It was further argued that the documents
obtained through modern devise are per se admissible hence Article 79 of the
Qanun-e-Shahadat Order, 1984 (hereinafter referred to as “the Order, 1984”)
has no concern, for proving the said documents which were prepared from
theC.C.T.V. Lastly,it was contended that the order of the learned Additional
Sessions Judge was revisable hence petition under Section 561-A Cr.P.C. was
not maintainable.
4.
We have heard the learned counsel for the petitioners and also
perused the record appended with the petition.
5.
During cross-examination upon the investigating officer, in order
to rebut the site plan, the learned trial Court on a request by the defence side,
under Section 539-B Cr.P.C. appointed a Magistrate as a Commission to visit
the place of occurrence in order to ascertain the authenticity of the site plan
regarding the close end of the market. While doing so, the learned trial judge
assumed the jurisdiction of an investigating officer and such order would
amount to favour one party and prejudice the case of other party. Such power
under Section 539-B Cr. P.C. cannot be a substitute for collection of evidence.
Such inspection cannot be interchanged for investigation. Learned counsel for
the petitioner although tried to satisfy us that the said Order was in respect of
an inquiry regarding alleged perjury committed by the investigating officer but
admittedly no separate file has been prepared to that extent nor, in the order
dated 20.11.2015,the learned trial Court has mentioned that he had
appointed a Commission in an inquiry whereas learned trial Court specifically
3
Crl. P. No. 198 of 2016.docx
mentioned that the Magistrate as a Commission was appointed under Section
539-B Cr. P.C.. Section 539-B Cr.P.C. gives power to a Judge or a Magistrate
to visit and inspect the place of occurrence or any other place after due notice
to the parties, if necessary in the opinion of the trial Court, for properly
appreciating the evidence given during the trial. He was also required to record
a memorandum without unnecessary delay regarding his observation at such
inspection but this power cannot be delegated by the trial judge to any other
subordinate or even a subordinate judicial officer. Under Section 539-B
Cr.P.C, the trial Judge had no power to appoint another person to visit the
place of occurrence as a Commission because the report submitted by a local
Commission cannot be equated with the memorandum mentioned in sub-
section-I of Section 539-B Cr.P.C.. The trial Judge can inspect the place of
occurrence but alone and he cannot delegate his powers under Section 539-B
Cr.P.C. and it is exclusive domain of trial Court under said section. Judicial
power has its own sanctity and the same cannot be entrusted to anyone. The
act of the trial Court is not curable under Section 537 Cr.P.C. as it is not an
irregularity rather was an illegality. It is quite astonishing that the learned
trial Judge, while appointing a Commission under Section 539-B Cr.P.C, did
not go through the said provision and acted mechanically upon the request of
defence. The High Court has rightly observed that such an act of the trial
Court was not only prejudicial to the other party but also detrimental to the
fairness of the procedure provided under the Code, apart from being without
jurisdiction.
The record reveals that during investigation the petitioner tried to
produce the footage of some C.C.T.V. which were produced by the
petitioner/accused before the investigating officer. No doubt the trial
Court,under Section 164 of the Order, 1984,may allow to produce the said
footage of C.C.T.V. but it is incumbent upon the defence to prove the same in
accordance with the provisions of the Order, 1984. The defence had ample
opportunity to produce in his defence, the concerned person who had
prepared the said footage from the C.C.T.V. system in order to prove the same.
In that eventuality, the adverse party would be given an opportunity to cross-
4
Crl. P. No. 198 of 2016.docx
examine the said witness regarding the genuineness or otherwise of the said
document. Any document brought on record could not be treated as proved
until the same is proved strictly in accordance with the provisions contained
in the Order, 1984. While discussing these aspects of the case, the High Court
restricted the admissibility only to the extent of Article 79 of the Order, 1984
whereas there are certain other provisions/articles in the Order, 1984 for
proving the documents which are procured through the modern devices and
techniques. Mere producing any footage of C.C.T.V. as a piece of evidence in
the Court is not sufficient to be relied upon unless and until the same is
proved to be genuine. In order to prove the genuiness of such footage it is
incumbent upon the defence or prosecution to examine the person who
prepared such footage from the C.C.T.V. system. So we modify the impugned
judgment to the extent that the accused is at liberty to produce evidence and
prove the same strictly in accordance with the provisions of the Order, 1984
and it will not confine only to the Article 79 of the Order, 1984.
Admittedly, the order of the learned Additional Sessions Judge was
revisable and the learned Judge in Chamber of the Peshawar High Court,
Bannu Bench was required to decide the same under his revisional powers.
The remedy under Section 561-A Cr. P.C. is not an alternate or substitute for
an express remedy as provided under the law in terms of Sections 435 to 439
Cr.P.C..Jurisdiction under Section 561-A Cr.P.C. is neither alternative nor
additional in its nature and is to be rarely invoked only to secure the end of
justice so as to seek redress of grievance for which no other procedure is
available. Although learned Judge in Chamber did not mention any reason as
to why he made a departure from the normal course prescribed by law but
this omission on the part of learned judge in Chamber is not fatal at this stage
because the judgment passed by the High Court is well reasoned and was
passed after going through the record of the lower Court. The High Court
might have overlooked this aspect of the case, hence, we, in the peculiar
circumstances of the case, hold that the impugned judgment, passed by the
High Court, be deem to have been passed in revisional jurisdiction. The trial in
this case is pending in the trial Court and almost prosecution evidence has
5
Crl. P. No. 198 of 2016.docx
already been recorded, hence instead of remanding the case to the High Court,
we observe that the impugned judgment is well reasoned and there is no
perversity or infirmity warranting interference of this Court. Consequently,
this petition is dismissed and leave to appeal is declined.
Judge
Judge
Islamabad, the
29thAugust, 2016
Atif*/
APPROVED FOR REPORTING
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mian Saqib Nisar
Mr. Justice Asif Saeed Khan Khosa
Criminal Petition No. 203-L of 2014
(Against the order dated 04.02.2014 passed by the Lahore High
Court, Lahore in Criminal Miscellaneous No. 158-B of 2014)
Muhammad Shakeel
…Petitioner
versus
The State, etc.
… Respondents
For the petitioner:
Rana Shakeel Ahmad Khan, ASC
For the State:
Ch. Zubair Ahmad Farooq, Additional
Prosecutor-General, Punjab
For respondent No. 2:
Mr. Adnan Shuja Butt, ASC
Date of hearing:
20.03.2014
ORDER
Asif Saeed Khan Khosa, J.: Cricket and judicial decision
making may not have much in common except that there is an
umpire in the game of cricket deciding ‘appeals’ and judging
various issues arising during the progress of the game and there
may be some judges sitting in their courtrooms who may
sometimes be tempted to hit the ball over the boundary rope.
Likeness of a judge to an umpire in a game of cricket has already
been alluded to by none other than Lord Denning in his judgment
delivered in the case of Jones v. National Coal Board [(1957) 2 Q.B.
55]. His lordship had observed that “Even in England, however, a
Judge is not a mere umpire to answer the question “How’s that?”.
His object, above all, is to find out the truth, and to do justice
according to law; -------”. Another common factor between the two
Criminal Petition No. 203-L of 2014
2
is that both cricket and judicial decision making are played/
practised by gentlemen, and now by noble ladies as well. All of us
know that cricket has moulded itself over time and has adapted to
the requirements of the changing times but judges, being
conservative by nature and tradition, have so far been slow in such
transformation or adaptation. Keeping pace with the requirements
of the modern times as well as constraints of time concomitant
thereto a five-day test match in cricket is giving way to a one-day
match and even to a blitz called T20 and although Garry Sobers,
Hanif Muhammad and Sunil Gavaskar are still idolized for their
marathon efforts and long hauls in batting yet the present day
heroes are the likes of Shahid Afridi who, notwithstanding the
shots they play or the techniques they employ, are applauded for
their obsessive, if not neurotic, hitting and for scoring as many
runs as possible within the shortest possible time. As against that
the judges are generally still sticking to their old and archaic styles
of writing their orders and judgments which is causing a
disconnect between the judiciary and the litigant public because
the decision making is slow, long and out of pace with the influx of
cases asking for decision, if not out of sync with the expectations of
majority of the stakeholders. We have found the present case to be
a classic example of such a disconnect as despite about one
hundred and eighty thousand cases pending and clamouring for
decision before the Lahore High Court, Lahore the learned Judge-
in-Chamber of the said Court had indulged in the luxury of writing
as many as twelve pages for dismissing the petitioner’s application
for bail which matter was merely an interim matter pertaining only
to regulating custody of the petitioner during his trial. We feel that
the matter could have been decided by the learned Judge-in-
Chamber through a much shorter order saving the Court’s
precious time for attending to other similar matters of urgency.
2.
In the background of this Court’s accumulated experience
over a long period of time and the wisdom gathered through the
same we feel that time has come for breaking away from the
attitudes and approaches of the past and for out of the box
solutions to situations which apparently have no traditional
Criminal Petition No. 203-L of 2014
3
remedies. In short, we feel that time has come for a game changer
and the present petition may be utilized as the watershed. It has
appeared to us to be safer to start the proposed judicial
repositioning with decisions of applications for bail and then to
build on the same on the basis of the experience gathered. With
this object and motivation in mind we propose that in future,
unless the necessities of the case warrant otherwise, the following
shorter format for deciding an application for bail may be adopted
by all the courts below:
(i)
Without
reproducing
the
particulars
and
contents of the FIR in detail an order should state
directly and briefly the allegation levelled by the
prosecution against the accused-petitioner. The details
and particulars of the FIR would already be available
in the application for bail itself or the same can be
gathered from a copy of the FIR attached with such
application.
(ii)
The details of the arguments addressed by the
learned counsel for the parties may not be recorded in
the order. It is to be presumed that the court
concerned must have heard and attended to all the
arguments addressed and the submissions made
before it and if one is to look for such arguments the
same may be found mentioned in the application for
bail. It may be well to remember that an order granting
or refusing bail is merely an interim order and the
same is not to be equated with a judgment.
(iii)
The order should state the reasons for granting
or refusing bail to the accused-petitioner as briefly and
clearly as possible in the following format:
(a)
-------
(b)
-------
(c)
-------
(d)
-------
It may not be lost sight of that brevity is the soul of
wit.
(iv)
The order should record the terms of bail, if
applicable.
Adopting the said format we now proceed to decide the present
petition.
Criminal Petition No. 203-L of 2014
4
3.
Through this petition Muhammad Shakeel petitioner has
sought leave to appeal against the order dated 04.02.2014 passed
by a learned Judge-in-Chamber of the Lahore High Court, Lahore
in Criminal Miscellaneous No. 158-B of 2014 whereby post-arrest
bail was refused to him in case FIR No. 274 registered at Police
Station Hanjarwal, District Lahore on 20.04.2012 in respect of
offences under sections 148, 302 and 149, PPC.
4.
After hearing the learned counsel for the parties and going
through the record we have observed as follows:
(a)
The allegation leveled against the petitioner in
the FIR was that at the stated date, time and place he
and his co-accused had resorted to firing at the
deceased but the petitioner had not been attributed
any specific injury and the allegation leveled against
him in the FIR was couched in generalized and
collective terms.
(b)
Admittedly nothing had been recovered from the
petitioner’s custody during the investigation so as to
confirm the allegation of firing leveled against him.
(c)
The investigating officer had concluded that the
allegation leveled by the complainant party against the
petitioner did not stand established during the
investigation and as a consequence of such conclusion
the petitioner had been opined to be innocent.
(d)
According to the FIR the complainant and the
other eyewitnesses mentioned therein were available at
the relevant time just outside the complainant's house
but a bare look at the site-plan of the place of
occurrence shows that the complainant and the
eyewitnesses could not have seen the incident in issue
while standing outside the house of the complainant,
particularly when it had never been claimed by them
in the FIR and in the statements made before the
police under section 161, Cr.P.C. that they had
followed the deceased and the accused party to the
place of occurrence.
(e)
The investigation of this case has already been
finalized and a Challan has been submitted and, thus,
physical custody of the petitioner is not required at
this stage for the purposes of investigation.
Criminal Petition No. 203-L of 2014
5
5.
For what has been observed above we have found the case
against the petitioner to be a case calling for further inquiry into
his guilt within the purview of subsection (2) of section 497,
Cr.P.C. This petition is, therefore, converted into an appeal and the
same is allowed and consequently the petitioner is admitted to bail
subject to furnishing bail bond in the sum of Rs. 1,00,000/-
(Rupees one hundred thousand only) with two sureties each in the
like amount to the satisfaction of the learned trial court.
Judge
Judge
Lahore
20.03.2014
Approved for reporting.
Yasin
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE MUNIB AKHTAR
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
CRIMINAL PETITION NO. 203 OF 2021
(On appeal against the order dated 12.01.2021 passed
by the Peshawar High Court, Bannu Bench in
Cr.Misc.BA No. 651-B/2020)
Jahanzeb Khan
… Petitioner
VERSUS
Umer Zahid and another
… Respondents
For the Petitioner:
Sh. Muhammad Sulman, ASC
Syed Rifaqat Hussain Shah, AOR
For the Respondent (1): Mr. Sher Afzal Khan Marwat, ASC
Mr. Shahid Qayyum, ASC a/w respondent
No. 1
For the State:
Mr.
Anis
Muhammad
Shahzad,
State
Counsel
Mr. Yar Muhammad, ASI
Date of Hearing:
30.11.2021
ORDER
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through this petition
under Article 185(3) of the Constitution of Islamic Republic of
Pakistan, 1973, the petitioner seeks cancellation of bail granted to
the respondent Umer Zahid by the learned Peshawar High Court,
Bannu Bench vide order dated 12.01.2021 in case registered vide
FIR No. 430 dated 28.06.2020 under Sections 302/324 PPC at
Police Station Karak, District Karak in the interest of safe
administration of criminal justice.
2.
As per the contents of the crime report, on the fateful
day and time, the respondent while armed with firearm fired at the
complainant and his brother Shahzeb Khan and due to the firing,
Criminal Petition No. 203/2021
2
the brother of the complainant got hit and lost his life whereas the
complainant remained unhurt.
3.
At the very outset, it has been argued by learned
counsel for the petitioner that the respondent was the single
accused, who was directly charged for the murder of brother of the
complainant in the promptly lodged crime report. Contends that
there was previous blood feud between the parties, which led to the
commission of the crime. Contends that the occurrence took place in
broad daylight and the parties were known to each other, therefore,
there is no chance of mis-identification. Contends that the Call Data
Record (CDR) of the respondent also shows that he was present at
the scene of occurrence at the relevant time. Contends that the
respondent remained absconder for a period of six months, which
shows his involvement in the crime. Contends that the offence with
which the respondent is charged with falls within the prohibitory
clause of Section 497 Cr.P.C. and the normal penalty provided under
the statute is death. Lastly contends that the learned High Court did
not take into consideration these aspects of the matter and has
granted bail to the respondent on surmises and conjectures,
therefore, the grant of bail on assumptions may be cancelled.
4.
On the other hand, learned counsel for the respondent
has defended the impugned order whereby post-arrest bail was
granted to the respondent. He contended that the considerations for
grant of bail and cancellation whereof are entirely on different
footings and once bail has been granted to an accused on the basis
of tentative assessment of evidence available on record then for its
cancellation exceptional strong reasons are required. He contended
that keeping in view the nature and locale of the injury on the body
of the deceased, the same could not have been sustained because
the deceased was in a bunker at the time of occurrence. Contends
that the complainant was not present at the time of occurrence and
to cover this lapse, he got tampered the postmortem report and
changed the time of postmortem examination.
5.
We have heard learned counsel for the parties at some
length and have perused the available record.
Criminal Petition No. 203/2021
3
There is no denial to this fact that the respondent is
nominated in the crime report, which is promptly lodged against him
wherein a specific accusation of causing firearm injury to the brother
of the complainant which resulted into his death. Admittedly, the
occurrence has taken place on the rooftop of the house of the
complainant and the matter was reported to the Police after lapse of
1 hour and 45 minutes whereas the inter se distance between the
place of occurrence and the Police Station was 18-19 kilometers.
This aspect lends support to the fact that the matter was reported to
the Police without any inordinate delay. Previous enmity between
the parties is not denied. The instant occurrence has taken place in
broad daylight whereas the parties are known to each other,
therefore, there is no chance of any mis-identification, which further
gives strength to the prosecution case. The locale of injury ascribed
to the respondent is fully supported by medical evidence. We have
noticed that the reasoning advanced by the learned High Court
while granting bail to the respondent is artificial in nature, which
does not imprint any second thought in the mind of a prudent man
that the occurrence has taken place in another manner not disclosed
while lodging the crime report. The argument of the learned counsel
for the respondent that the considerations for the grant of bail and
cancellation whereof are entirely on different footings has no second
thought. However, we are under obligation to attend to the facts and
circumstances of the lis, which is brought before us and to evaluate
the same in the manner so that no injustice is done to either of the
party. In the instant case, the learned High Court has not given any
justiciable reasoning to bring the case of the respondent within the
ambit of Section 497(2) Cr.P.C calling for further probe into his guilt
rather based its order upon assessment of the facts, which does not
have any nexus with the guidelines enunciated by the superior
courts from time to time with reference to grant of bail. In our
opinion, in the instant case the learned High Court while granting
bail to the respondent has erred in law and fact and has passed an
order which is based upon conjectures and surmises, therefore, the
same is not sustainable in the eyes of law. As a consequence, we
convert this petition into appeal, allow it, set aside the impugned
order and cancel the bail granted to the respondent by the learned
Criminal Petition No. 203/2021
4
High Court vide impugned order dated 12.01.2021. The above are
the detailed reasons of our short order of even date.
JUDGE
JUDGE
Islamabad, the
30th of November, 2021
Approved For Reporting
Khurram
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
Present:
Mr. Justice Sardar Tariq Masood
Mr. Justice Mazhar Alam Khan Miankhel
Mr. Justice Amin-ud-Din Khan
(,q4)(D 5)
CRIMINAL PETITION NO.209 OF 2018 AND
CRL. MISC. APPLICATION No.392 OF 2018
(On appeal against the judgment dated 07.12.2017 by the
Is]ariiabad High Court, Islarnalpul, in Cr1. Appeal No. 152/2017)
Model Customs Collccwrate, Islamabad
Versus
Aamir Mumtaz Qureshi
Petitioner
Respondent
For the petitioner
For respondent
Date of hearing
Mrs. Misbah Gulnar Shari[, ASO
Sycd Rifaqat Hussain Shah, AOR
Qazi Shehryar lqbal, ASC
a/w respondent in person.
I R.05.2022
JUDGMENT
SAROAR TAmQJ!SOOD, J.-
CH. Misc. Application No.392/2018 For reasons set out in the instant
application for condonation of delay, the same is allowed and the
delay in filing of the pelition is condoned because the trial court
judgment and the impugned judgment are patently illegal and
against the record.
2. The petitioner department has impugned the judgment dated
0712.2017 of the Islamabad high Court whereby it uphold the order
dated 28.04.2017 of ticcRlittal of respondent, passed by the Special
Court (Customs, Taxation & Anti-Smuggling), Rawalpindi/Islamahad
Capital Territory under
section 265-K Cr.P.C., in case FIR
No.49/2016, zegisteicd on 29.07.2016 at Police Station I&P Branch,
MCC Islamabad under sections 2(s), 156(1), 8, 70 and 157 of the
Customs Act 1969, read with section 8 of the Foreign Exchange
Pegulation Am 1947 (1V1 ACT).
Cr!. l 20912018
2
3.
We have heard the learned counsel for the petitioner as well as
the learned counsel for the respondent and perused the available
record alongwith the impugned judgment with their assistance.
4.
Admittedly, the respondent Aamir Mumtaz Qureshi was
apprehended at Benazir Bhutto International Airport, Islamabad
when he was taking away heavy currency of about 400,000 (four
hundred thousand) Saudi Riyals to Saudi Arabia and the said foreign
currency was recovered from his exclusive possession which he was
smuggling abroad and this fact is not denied but he was acquitted by
the trial court under section 265-K, Cr.P.C. and appeal filed against
his acquittal was dismissed by the High Court through the impugned
judgment, hence this petition for leave to appeal. On 24.02.2018
notice was issued to the respondent.
5.
As respondent was acquitted by the trial court under section
265-K Cr.P.C. hence section 265-K Cr.P.C. and allies section 249-A
Cr.P.C. are reproduced as below: -
249-A. Power of Magistrate to acquit accused at any
stage: Nothing in this Chapter shall be deemed to prevent a
Magistrate front acquitting an accused at any stage of the
case if after hearing the prosecutor and the accused and for
reasons to he recorded, he considers that the charqJ
groundless or i/ia! (here is no nrobabilitu of the accused being
convicted c] any offence.
265-K. Power of Court to acquit accused at any stage:
Nothing in this Chapter shall be deemed to prevent a Court
from acquitting an accused at any stage of the case, if after
nearing the prosecutor and the accused and for reasons to be
recorded, it considers that there is no probabilif of the
accused being convicted of any offence."
Under section 249-A, the Magistrate is empowered to acquit any
accused on two grounds i.e. charge is groundless and there is no
probability of conviction, whereas under section 265-K Cr.P.C., the
court during the trial is empowered to acquit an accused, when there
is no probability of conviction indicating that when there is no
evidence on the record and even there is no remote probability of
conviction and if thcre is remote probability of conviction then the
court is required to record the evidence and then decide the case on
evidence bought on record during the trial. From the above sections,
it is also clear that application under sections 249-A and 265-K
Cr.P.C. can be filed or taken up for adjudication at any stage of
proceeding of trial i.e. cvcrI before recording of prosecution evidence
or during recording of evidence or when recording of evidence is over.
CrL,°.20912018
3
Although there is no bar for an accused to file application under the
said sections at any stage of proceeding of the trial, yet the fact and
circumstance, the prosecution case will have to be kept in mind and
if there is slight probability of conviction then off course, instead of
deciding the said application should record the evidence and allowed
the case to decide on its merit after appraising the evidence available
on recorded.
6.
Although learned counsel for respondent contended that
respondent himself delivered the said currency to the authorities
while travelling to Saudi Arabia but this fact has not been established
by the learned counsel for the petitioner through documents except
the statement of the respondent himself but this fact further confirms
that he was apprehended at the Airport and huge currency, which he
was trying to smuggle to the Saudi Arabia, was recovered from him.
The argument of the learned counsel that respondent had filed
application before the State Bank of Pakistan for permission to take
away the currency to Saudi Arabia, has no force because mere filing
of an application for permission by itself is not sufficient to allow him
to smuggle the currency out side the country, until the permission
was granted and in this case admittedly, no permission was ever
granted by the State Bank of Pakistan. At this juncture learned
counsel for the respondent took a summersault and contended that
the respondent was not aware of the fact that foreign currency
amounting to more than US$ 10,000 (US dollars ten thousand)
cannot be taken awa y, from the country. This assertion is also not
getting support form any corner, because on one hand the
respondent claimed that he had filed all application for permission to
take the huge foreign currency out of the country and on the other
hand he was not aware of the fact that he could not take huge foreign
currency outside the country.
7.
The argument of the learned counsel for the respondent that he
was a Hajj Tour Operator and has not committed any offence of
taking away! smuggling foreign currency from the country, has no
force because being a HaJ Tour Operator he has no license to
smuggle the foreign currency outside the country. There was
sufficient material available on record connecting the respondent
with the commission of 1.1he alleged crime and it was incumbent upon
Cr1. P.209/2018
4
the trial Court to record the evidence but instead of recording the
evidence to prove the guilt or otherwise of the respondent, the trial
Court in a slipshod manner, acquitted him under section 265-K
Cr.P.C.. The trial Court acquitted the respondent for the reason that
there is no probability of conviction, whereas, from the material
available on record, it is quite clear that he was apprehended at the
airport while leaving for Saudi Arabia with the above said huge
foreign currency.
8. There is no cavil to the proposition that by enacting sections
249-A and 265-K, CrI'C., the Legislature provided power to acquit
an accused at any stage of the case if, after hearing the prosecutor
and the accused and for reasons to be recorded, it considers that the
charge is groundless or that there is no probability of the accused
being convicted of any offence. But acquittal, under the said sections,
could be made only if there was no probability of conviction of the
accused. However, each case must be judged on its own special facts
and circumstances and the reasons are to be recorded in support of
conclusion that charge is groundless or that there is no probability of
accused being convicted. If there is remote probability of conviction
then of course courts are not empowered to invoke the said
provisions i.e. 249-A and 265-K Cr.P.C.. Reliance in this regard may
be placed on the case of The State through Advocate-General,
Sindh High Court of Karachi a Rafa Abdul Rehman (2005
SCMR 1544) wherein it was held that though there is no bar for an
accused person to file application under section 249-A, Cr.P.C. at any
stage of the proceedings of the case yet the facts and circumstances
of the prosecution case will have to be kept in mind and considered
in deciding the viability or feasibility of filing an application at any
particular stage. The special or peculiar facts and circumstances of a
prosecution case may not warrant filing of an application at a stage.
This Court in the case oF Bashir Ahmad V. Zafar ul Islam (PLD
2004 SC 298) did not approve decision of criminal cases on an
application under section 249-A, Cr.P.C. or such allied or similar
provisions of law, namely, section 265-K or section 561-A Cr.P.C. and
observed that usually a criminal case should be allowed to be
disposed of on merits after recording of the prosecution evidence,
atement of the accused under section 342, Cr.P.C., recording of
statement of accused under section 340(2), Cr.P.C. if so desired by
Cr1. P.209/2018
5
the accused persons and hearing the arguments of the counsel of the
parties and that the provisions of section 249-A, section 265-K and
section 561-A of the Cr,P.0 should not normally be pressed into
action for decision of fate of a criminal case especially when
apparently there is probability of conviction after recording evidence.
In the present case, trial court disrupted the normal course of law
against the mandate of supra judgment i.e. Bashir Ahmad Vs. Zafar-
ui-Islam and others (PLD 2004 SC 298). In the case of The State
through Collector Customs and Excise, Quetta v. Azam Malik
and others (PLO 2005 SC 686) this Court held as under:-
22. This brings us to the third question i.e. whether the
prosecution had sufficient material/evidence to warrant the
prosecution of the respondents or there was no probability of
accused being convicted of any offence. We have gone through
the FIR registered against the respondents and the absconding
co-accused as also the evidence led before the Court. There were
serious allegations that there was tampering/overwriting/
culling of the relevant register of bills of entry, the matter was
inquired into at the departmental level and (he allegations were
found to be correct. Ex fade there was documentary, oral and
circumstantial evidence to prove the charges. In the face of this
material the Thai Court could not have invoked section 265-K,
Cr.P.C. and acquit the respondents.
Reliance may also be placed on the cases of Muhammad Sharif v.
the State (PLO 1999 SC 1063), Ghulam Faroog Tarar a Rizwan
Ahmad and others (2008 SCMR 383),
9.
Further, in appellate or revisional proceedings, the same
sanctity cannot be accorded to acquittals at intermediary stages such
as under, sections 249-A or 265-K Cr.P.C., as available for those
recorded and based on full-fledged trial after recording of evidence. In
appeal or revision proceedings, the order of acquittal of the accused
under section 249-A or section 265-K of the Ct-P.C. would not have
the same sanctity as orders of acquittal on merits. Consequently, the
principles which are to he observed and applied in setting aside
concurrent findings of acquittal or the principle relating to the
presumption of double innocence when an accused is acquitted after
a full-fledged inquiry and trial, would not he applicable to the
acquittals under section 249-A, Cr.P.C. or section 265-K, Cr.P.C..
10.
In the instant ease, if the allegations levelled in the FIR
supported by the preliminary evidence are admitted to be true, it
could not he said at that stage by the trial Court that there was
no probability of conviction of the respondent-accused. In order to
U
CrLP.211912018
6
ascertain the genuineness of the allegations, the trial Court ought
to have allowed the prosecution to lead evidence. In the
circumstances, we are of the view that the learned trial Court
acted in haste in passing the order of acquittal which is,
therefore, notsustainable. The learned High Court was also not
justified in upholding the order of the trial Court when it is settled
that without permission from the State Bank of Pakistan, foreign
currency more than ten thousand dollars is not allowed to take
away from this country.
11. For the foregoing, this petition is converted into an appeal
and allowed. The orders of the trial Court and High Court are set
aside and the matter is remanded to the trial Court to record the
evidence and decide the case upon the evidence produce before it,
without being influenced by the observations mentioned above
because the material collected by the prosecution, during trial, will be
subject to cross-examination to unearth the truth. The parties, by
way of short order of even number passed on 1805.2022, were
directed to appear before the trial Court on 6.6.2022, which order
reads as under:
'or reasons to be recorded later on, this petition is
converted into an appeal and allowed, The orders of the
trial Court and High Court are set aside and the matter is
remanded to the trial Court to record the evidence and
decide the case upon the evidence produced before it. The
parties are directed to appear before the trial Cowl on
06.06.2022.'
Islamabad
13.07.2022
* s.t
Approved for reporting.
|
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|
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Gulzar Ahmed, HCJ
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.21-P of 2020
Against the judgment dated 28.02.2020 passed by
the Peshawar High Court Peshawar in Cr.MBA.
Bi,57-P/2020)
Zahoor Khan
…Petitioner(s)
Versus
Akhter Muhammad & another
…Respondent(s)
For the Petitioner(s):
Mr. Akhter Ali Khan, ASC
For the Complainant:
Mr. Anis Muhammad Shahzad, ASC
For the State:
Miss Aisha Tasneem, State Counsel
with Iqbal Mashwair, I.O/S.I.
Date of hearing:
21.05.2020.
ORDER
Qazi Muhammad Amin Ahmed, J.- Declined downstairs
throughout, Zahoor Khan, petitioner herein, seeks admission to bail;
alongside co-accused, he is alleged to have fatally targeted Yaheer
Shah on 25.10.2014 at 18:00 hours within the remit of Police Station
Katling District Mardan in the backdrop of a motive that hovered over a
piece of land; away from law, he was arrested after a period exceeding
half a decade. Autopsy report confirmed receipt of as many as six entry
wounds.
2.
Heard. Record perused.
3.
Argument regarding conflict between ocular account and
medical evidence, seemingly otherwise beside the mark, cannot be
attended within the barriers of tentative assessment, particularly in the
face of reflections of inordinate absence from law. Ocular account,
Criminal Petition No.21-P of 2020
2
accompanied by medical evidence as well as investigative conclusions,
constitute “reasonable grounds” within the contemplation of Section
497 of the Code of Criminal Procedure 1898, standing in impediment
to petitioner’s release in the absence of any consideration calling for
further probe. Impugned views being well within the bounds of law
need no interference. Petition fails. Leave declined.
Chief Justice
Judge
Islamabad, the
21st May, 2020
Not approved for reporting
Azmat/-
|
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"url": ""
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|
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
Present:
Mr. Justice Iftikhar Muhammad Chaudhry, CJ
Mr. Justice Ijaz Ahmed Chaudhry
Mr. Justice Gulzar Ahmed
Criminal Petition No.213 of 2013
[On appeal against the order dated 17.05.2013,
passed by the Lahore High Court, Lahore, in
Crl.Misc.No.701-H/2013]
Mst. Rasoolan
Petitioner(s)
VERSUS
SHO, Head Marala, Sialkot etc
Respondent(s)
Petitioner
: In person
For Respondents No.1,3 & 5
: Mr. Jawwad Hassan, Addl.A.G.
Mr. Muhammad Gohar Nafees, DPO, Sialkot.
Mr. Muhammad Shahbaz, DSP (L)
Mr. Safdar Hussain, Inspector/SHO,
P.S. Head Marala, Sialkot.
Mr. Muhamad Zubair, SI, PS Head Marala.
Ms. Nazia, Lady Constable with the detenues
Muhammad Ashraf, Muhammad Akram, Aman
Ullah, Asma Bibi, Uzma Rani, Rafia Rani, Azhra
Rani and Sufian.
For Respondents No.2 & 4
: NR
Date of Hearing
: 03.07.2013
ORDER
IFTIKHAR MUHAMMAD CHAUDHRY, CJ.—In response to our
order dated 27.06.2013, Mr. Gohar Nafees, DPO, Sialkot,
appeared and produced the alleged abductees namely Aman
Ullah, Muhammad Akram, Rafia Rani and Azhra Rani (minors)
aged about 4-5 years. According to him, they were available on
the brick Killen of Naveed Elahi Gujjar at Kotli Sattian, Sialkot,
Crl.P.No.213 of 2013
- 2 -
where they were living of their free will. However, when we
inquired from Aman Ullah, the alleged abductee, as to how he has
reached at the brick killen of Naveed Elahi Gujjar, he explained
that he had received an advance ( ) of Rs.200,000/- from
one Muhammad Asghar the owner of brick killen at Head Marala,
Sialkot, who sent him to Gujranwala on the brick killen of Rana
Mehmood ul Hassan and he paid an amount of Rs.400,000/- to
Muhamad Asghar. Subsequent thereto Rana Mehmood ul Hassan
sent him, his brother and two minors again to Sialkot on the brick
killen of Naveed Elahi Gujjar, who had paid an amount of
Rs.400,000/- to Rana Mehmood ul Hassan. As far as the minors
are concerned, according to him they were also living with him on
the same brick killen. Both the minors have been produced in the
Court, they seem to be children of 4-5 years old. Therefore, we
inquired from a lady namely Mst.Asma, who has also been
produced in the Court, she stated that she was also living on the
same brick killen but after some time she changed her statement
and deposed that she along with her son namely Sufian aged
about 5-6 years and a suckling daughter namely Uzma as well as
Muhammad Ashraf, who is brother of Aman Ullah, were recovered
from Minar-e-Pakistan. In the report which has been submitted
by the DPO, there are two contradictions, one of them has been
mentioned herein above relating to the confinement and
abduction against payment of paishgi by Aman Ullah and others
Crl.P.No.213 of 2013
- 3 -
and second is in respect of the recovery of Muhammad Ashraf
and Mst. Asma from the jurisdiction of Police Station Lorry Adda,
Lahore, where according to the report of the DPO, they were
found near gate No.1 of Minar-e-Pakistan, Lahore.
2.
Prima-facie, false statement has been placed on record
under the signatures of the DPO, as the contents of the report are
not supported by the facts noted herein above including the one
that how it was possible for him to effect the recovery from gate
No.1, Minar-e-Pakistan, Lahore, when he himself is saying that
they are resident of village chharar, Ghazi Road, Lahore Cantt.
Such statement cannot be accepted which has been filed without
any basis and apparently is far away from the truth which is now
coming on record. On our query, he has placed on record extract
of report No.36, Police Station Lorry Adda, Lahore, where Safdar
Hussain, Inspector/SHO Police Station Head Marala, Sialkot
visited the said Police Station for the purpose of effecting
recovery of Mst.Asma and others. The relationships in this report
have also been written incorrectly. We inquired from Muhammad
Akram, who was stated to be with them that how he is happened
to be at gate No.1 of Minar-e-Pakistan, he stated that he is
resident of village chharar from where he came along with
rickshaw driver and Mst. Asma also accompanied them along with
her suckling child Uzma and Sufian aged about 4/5 years.
Similarly, he has also placed on record another report compiled
Crl.P.No.213 of 2013
- 4 -
by Safdar Hussain, Inspector/SHO, for effecting recovery of
Muhammad Ashraf, Mst. Asma, Sufian and Uzma from gate No.1
of Minar-e-Pakistan, Lahore. The same may be kept on record.
Apparently contradictory and false statement has been filed
without conducting thorough inquiry by the DPO, under his
signatures.
3.
In such view of the matter, we direct the Inspector
General of Police, Punjab, to take cognizance of this matter and
submit a comprehensive report by appearing in person on 8th
July, 2013. A copy of this order along with the reports and
annexures which have been placed on record be sent to him.
4.
The DPO is also directed to place on record the report
of departure of Safdar Hussain from his Police Station to Police
Station Lorry Adda, Lahore, on 29.06.2013.
5.
As the detenues mentioned hereinabove have been
recovered, therefore, to their extent no further proceedings are
called for.
6.
Adjourned to 08.07.2013.
Chief Justice
Islamabad
Judge
03.07.2013
*Hashmi*
Judge
Crl.P.No.213 of 2013
- 5 -
|
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|
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mushir Alam
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.224 of 2017
(against
impugned
judgment
dated
11.1.2017 passed by the Lahore High Court
Rawalpindi Bench in Crl. Appeal No.63 of
2016).
Rifat Hussain
…Petitioner(s)
VERSUS
The State
…Respondent(s)
For the Petitioner(s)
: Mr. Muhammad Munir Paracha, ASC
For the State
: Mr. Muhammad Jaffar D.P.G.
Punjab.
Date of Hearing
: 12.09.2019.
O R D E R
Qazi Muhammad Amin Ahmed, J.- Indicted for
homicide, Riffat Hussain, petitioner herein, was returned a guilty
verdict by the trial Court; convicted under Clause (b) of Section
302 of the Pakistan Penal Code, 1860 he was sentenced to
imprisonment for life with a direction to pay compensation
alongside benefit of section 382-B of the Code of Criminal
Procedure 1898; his appeal met with no better fate.
2.
Habib is deceased of the case; he was allegedly
done to death on the fateful day at 6:30 p.m. with multiple
shots, fired by the petitioner as well as Ghulam Abbas
co-accused, since killed in a police encounter, in the backdrop of
a motive relating to the murder of petitioner’s brother at his
hands, way back in the year 1997. Incident was reported at 3:00
a.m. after mid night whereas autopsy was conducted at 9:00
a.m. Delay in recourse to law as well as autopsy is pressed into
service to argue that the witnesses were staged managed as the
Criminal Petition No.224 of 2017
2
incident went un-witnessed; to substantiate further, it is next
argued that it was for this reason that the dead body was shifted
from the alleged venue wherefrom no casing was recovered
despite allegation of multiple fire shots as confirmed by the
autopsy report, rendering recovery of weapon as inconsequential
as considered by the learned High Court itself. Elimination of
co-accused in a police ‘encounter’ has been pointed out to
suggest that all was not well with the prosecution; non-
appearance of the Investigating Officer without any valid cause,
according to the learned counsel, cause serious prejudice to the
petitioner in his quest to vindicate his position, circumstances
that escaped notice downstairs. It would be expedient to re-
appraise prosecution evidence with a view to ensure safe
administration of criminal justice, leave is granted.
JUDGE
Islamabad, the
12th of September, 2019
Azmat/*
JUDGE
|
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"url": ""
}
|
1
Crl.P.L.A. No. 230/2016
(SNGPL)
(FIA)
2
Crl.P.L.A. No. 230/2016
(SNGPL)
(FIA)
3
Crl.P.L.A. No. 230/2016
|
{
"id": "Crl.P.L.A.230_2016.pdf",
"url": ""
}
|
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Maqbool Baqar
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.231-K of 2019
(Against order dated 21.10.2019 passed
by High Court of Sindh Circuit Court
Hyderabad in Cr. Bail Application. No.S-
988 of 2019)
Abdul Aziz Memon
…Petitioner(s)
Versus
The State
…Respondent(s)
For the Petitioner(s):
Mr. Bashir A. Almani, ASC
For the State:
Mr. Hussain Bux,
Additional Prosecutor General Sindh
Date of hearing:
26.12.2019
ORDER
Qazi Muhammad Amin Ahmed, J.- Apprehending arrest,
Abdul Aziz Memon, petitioner herein, seeks bail in anticipation thereto;
he is accused in Crime No.109, registered with Police Station Matyari,
on the complaint of Hakim Ali, allegedly duped for appointment as a
Naib Qasid in the Education Department, in lieu of payment of
Rs.500,000. An appointment letter, received by the complainant,
turned out a fake instrument after two years service without pay.
Before the Courts below, the petitioner pleaded innocence, citing
a dispute over a transaction involving wheat crop for a consideration of
Rs.200,000
paid
through
different
bank
cheques
issued
in
complainant’s favour, followed by a default; the same story is
reiterated, nonetheless, in the absence of any proof or investigative
support.
2.
Heard. Record perused.
3.
Complainant’s futile service as a Naib Qasid at a school for
a period of two years, abruptly terminated when the appointment letter
Cr.P. No. 231-k OF 2019
2
provided by the petitioner, upon verification, was found as a forged
instrument; two years of service and a fake appointment letter are
circumstances, resting upon incriminatory statements, singularly
pointed upon petitioner’s culpability that he cannot ward off by
clamouring a bald plea of mala fide, structured upon denial and a
parallel story. Grant of pre-arrest bail is an extraordinary remedy,
rooted into equity, to protect the honour and freedom of the innocent in
criminal cases actuated by abuse of process of law for oblique motives
and purposes; this protection cannot be extended in every run of the
mill criminal case without grievously hindering the investigative
process. View taken by the High Court, being well within the remit of
law, does not call for interference. Petition fails. Leave refused.
Judge
Judge
Karachi, the
26th December, 2019
Not approved for reporting
Azmat*
|
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|
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
MR. JUSTICE SAJJAD ALI SHAH
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
CRIMINAL PETITION NO.231 OF 2020
(Against the order of the Peshawar High
Court,
Peshawar
dated
14.02.2020
passed in Cr. MBCA No.45-M/2019 and
Cr. MBCA No.46-M/2019)
Sami Ullah and another
… Petitioners
Versus
Laiq Zada and another
… Respondents
For the Petitioner
For the Complainant
:
Mr. Abdul Latif Afridi, ASC
Barrister Sarwar, Advocate
Mr. Muhammad Saeed Khan ASC
Syed Rafaqat Hussain Shah AOR
For the State
:
Zia Ullah ASI
Date of Hearing
:
08.05.2020
ORDER
SAYYED MAZAHAR ALI AKBAR NAQVI, J:- Petitioners
have sought leave to appeal under Article 185(3) of the
Constitution of Islamic Republic of Pakistan, 1973 against the
order impugned passed by learned Peshawar High Court, Mingora
Bench (Dar-ul-Qabza), Swat dated 14.02.2020 in Cr.MBCA No.45/
46-M/2019 with the prayer to set-aside the order impugned in the
interest of safe administration of criminal justice.
2.
The petitioners were booked in case bearing FIR
No.62/2019 dated 08.06.2019 under Section 316/452/337-A(ii),
337 F(iv)/34 PPC registered with Police Station Sheringal, District
Dir Upper.
Criminal Petition No. 231 of 2020.
-:2:-
As per allegation contained in the crime report, it is
alleged that the complainant was present alongwith other women-
folk when the petitioners duly armed with sticks and stones
entered in the house of petitioner and caused injuries to Mst.
Shabina Bibi, Mst. Prona Bibi, Enam and Khan Zada which landed
on the different parts of the injured PWs, however Khan Zada
succumbed to the injuries at a belated stage. The motive behind
the occurrence was dispute over the agricultural land. The
petitioners were taken into custody in pursuance of the aforesaid
crime report. The petitioners applied for their post arrest bail
which was allowed by learned Addl: Sessions Judge-II, Dir Upper
vide order dated 01.07.2019. The complainant being aggrieved by
the order of the learned Addl: Sessions Judge-II, filed two petitions
(Cr.MBCA No.45-M/Cr. MBCA No.46-M/2019) for cancellation of
bail, both these petitions were decided vide consolidated order
dated 14.02.2020. Hence, the instant petition.
3.
At the very outset, it has been argued by the learned
counsel for the petitioners that in fact, the learned High Court has
grossly erred in recalling the order of learned trial court and the
same has been passed without any legal justification. Contends
that the petitioners were enjoying the concession of bail since
seven months, however, this aspect was totally ignored while
passing the order. Further contends that it is established principle
of law that the considerations for grant of bail and cancellation
whereof are entirely on different footings. It has been argued that
considerations laid down to entertain such like petitions
enunciated by the superior courts escaped notice by the learned
High Court while passing the order. It is vehemently conceded that
Criminal Petition No. 231 of 2020.
-:3:-
no doubt learned High Court can adjudicate and recall the order if
the same is prima facie illegal, perverse, fanciful and passed while
ignoring the actual record, hence the order impugned is altogether
in defiance of principles laid down to pass such orders. It is further
argued that there is nothing on the record which suggests that the
order passed by learned trial court was falling in such category.
Lastly contended that injury caused to the deceased on scrotum
was made basis for recalling the order, although the same is not
spelled out either from the contents of crime report or is mentioned
in MLR, hence, the order of learned High Court is untenable,
passed beyond the record.
4.
On
the
other
hand,
learned
counsel
for
the
complainant has stated that injury to the deceased was on vital
part of the body. While elaborating his arguments, he argued that
whole body sustained injures by the hands of the petitioners which
means that even the injury if not mentioned specifically in the
medical report it can be assumed “cause of death” if surfaced
subsequently hence could be taken into consideration, while
basing findings of the court on it even in isolation.
5.
We have heard the learned counsel for the parties and
gone through the record with their able assistance.
The crux of the grievance invoked under section 497(5) Cr.P.C. by
the complainant before learned High Court Peshawar was that the
order passed by the learned trial court was in defiance of the
material available on the record, hence, the same was not
sustainable in the eye of law. Bare perusal of provision of section
497(5) Cr.P.C. it do not demonstrate any specific ground to press
Criminal Petition No. 231 of 2020.
-:4:-
into the pretense of said provision of law, however, superior courts
of the country from time to time have enunciated certain principles
governing cancellation of bail and those are in field with
unanimous concurrence since considerable time. Those are
enumerated as under:-
i)
If the bail granting order is patently illegal, erroneous,
factually incorrect and has resulted into miscarriage of
justice.
ii)
That the accused has misused the concession of bail
in any manner.
iii)
That accused has tried to hamper prosecution
evidence
by
persuading/pressurizing
prosecution
witnesses.
iv)
That there is likelihood of absconsion of the accused
beyond the jurisdiction of court.
v)
That the accused has attempted to interfere with the
smooth course of investigation.
vi)
That accused misused his liberty while indulging into
similar offence.
vii)
That some fresh facts and material has been collected
during the course of investigation which tends to
establish guilt of the accused.
6.
Ordinarily the superior courts are reluctant to interfere into
the order extending concession of bail; rather they have shown
reluctance to intervene in such like matters. The rationale behind
is that once concession of bail is granted by a court of competent
jurisdiction then very strong and exceptional grounds would be
required to hamper with the concession extended to a person who
is otherwise clothed with free life, any contrary action of the court
would be synonymous to curtailing the liberty of such person,
which otherwise is a precious right guaranteed under the
Criminal Petition No. 231 of 2020.
-:5:-
Constitution of the country. Our judicial system has evolved beside
others the concept of “benefit of reasonable doubt” for the sake of
safe administration of criminal justice which cannot only be
extended at the time of adjudication before the trial court or court
of appeal rather if it is satisfying all legal contours, then it can be
extended even at bail stage which is a sin-qua-non of a judicial
pronouncement, hence, any unjustified action by the court of law
intruding into the affairs would certainly frustrate the free life of an
accused person after availing the concession of bail. It is not
beyond the legitimate expectations that in our society mere
levelling of accusation basing upon trumped-up charges is not
something
beyond
imagination.
Therefore,
false
implication/exploitation which has become epidemic in our society
has to be safeguarded by the majesty of the courts. Unfortunately,
our judicial system does not effectively provide appropriate speedy
remedy for the rescue of innocent person rather it seldom helps
those who are victim of such wrong doing rightly or wrongly, hence
it is ensuing serious consequences in the fabric of society. This
Court is fully conscious of this aspect. It is now established that
every conviction/incarceration suffered by a person involved in a
criminal case due to any possible reason can repair the wrong
caused by a mistaken involvement but it cannot compensate him
for the period he suffered by any means which further demonstrate
undue frustration in the society at large. This concern of the
society further casts duty upon the courts of law to adhere the
dictum of reasonable doubt whenever it is surfaced to resolve it in
favour of an entity which deserves it judiciously.
Criminal Petition No. 231 of 2020.
-:6:-
7.
We have observed that the learned High Court has
exercised the jurisdiction on the basis of material which is not
substantiated from the record; hence, the order passed by the
learned High Court seems to be in defiance of law laid down by this
Court in the case of Tariq Bashir and 5 others versus The State
(PLD 1995 SC 34).
8.
Another aspect of instant matter is that it has been
established by this Court in various judgments that courts are
reluctant to interfere as far as cancellation of bail is concerned
even if the court is satisfied that the order passed by the court
below is not sustainable in the eye of law, however, when material
available on the record was evaluated it do not support misuse of
concession by the accused in any manner. Hence, the cancellation
of bail was declined; however, the matter was remanded back to
the High Court if subsequently it comes on the record any material
qua misuse of privilege at any stage. Reliance has been placed on
the case SHAHID ARSHAD versus MUHAMMAD NAQI BUTT AND
2 others (1976 SCMR 360).
9.
In view of the facts and circumstances narrated above,
we are of considered view that the recalling of order granting bail to
petitioners by the learned trial court was squarely unjustified,
hence we are persuaded to grant leave to appeal in the instant
petition while converting it into appeal and the same is allowed.
The petitioners shall be released on bail subject to their furnishing
bail bonds in the sum of Rs.5,00,000/- each with one surety each
in the like amount to the satisfaction of the learned trial
court/Duty Judge.
Criminal Petition No. 231 of 2020.
-:7:-
10.
Before parting with the order, it has been made clear
that the observations made hereinabove are tentative in nature
and it has no bearing during the course of proceedings before the
learned trial court.
11.
These are the reasons of our short order dated
08.05.2020 which is reproduced below:-
“For the reasons to be recorded separately, this
petition is converted into appeal and is allowed. The
petitioners are enlarged on bail subject to furnishing
surety bonds in the sum of Rs.500,000/- each with PR
bonds each in the like amount to the satisfaction of
the trial court”
Judge
Judge
Islamabad,
08.05.2020
Approved for reporting
Athar
|
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"url": ""
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|
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Umar Ata Bandial
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.234 of 2020
(Against order dated 3.2.2020 passed by
the Peshawar High Court Peshawar in Crl.
Misc. No.3759-P/2019)
Asfand Yar Khan & another
…Petitioner(s)
Versus
The State & another
…Respondent(s)
For the Petitioner(s):
Mr. Basharatullah Khan, ASC
Syed Rifaqat Hussain Shah, AOR
For the State(s):
Mr. Arshad Yousafzai, ASC
with Durran Shah, Inspector
Date of hearing:
02.04.2020.
ORDER
Qazi Muhammad Amin Ahmed, J.- Asfand Yar Khan and
Salman Khan, real brothers inter se, seek admission to bail; they have
been arrayed as accused through supplementary statement dated
4.9.2019, in a case of homicide, registered on 17.8.2019 at Police
Station Paharipura Peshawar on the statement of Nadim Safdar,
acclaimed witness of the incident; he had blamed Asad, Farhan, Imran,
Amjad and Aamir as the culprits for committing murder of his sister
Sumera Safdar and driver Inaam Lag, who drove the entourage to
attend proceedings in a case of murderous assault in District Courts
Peshawar. Motive for the crime is bad blood over property with a string
of cases raging between the parties. Sumera Safdar’s daughter through
supplementary statement joined the petitioners with the co-accused,
initially omitted by the complainant as well as the witnesses who
claimed to have survived the assault.
2.
Heard. Record perused.
3.
Be that as it may, the petitioners were not named in the
crime report as being alongside the accused who gunned down the
Criminal Petition No.234 of 2020
2
deceased; all the witnesses are unanimous on the number of accused
as five; the omission is intriguing and by itself brings petitioners’ case
within the remit of subsection 2 of section 497 of the Code of Criminal
Procedure 1898. Criminal Petition is converted into appeal and same is
allowed; the petitioners shall be released upon furnishing bonds in the
sum of Rs.500,000/- with one surety each in the like to the satisfaction
of the learned trial Court/Duty Judge.
Judge
Judge
Islamabad, the
2nd April, 2020
Not approved for reporting
Azmat/-
|
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"url": ""
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|
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
Present:
MR. JUSTICE JAWWAD S. KHAWAJA
MR. JUSTICE GULZAR AHMED
MR. JUSTICE MUHAMMAD ATHER
SAEED
CRIMINAL PETITION NO.240 OF 2012
(Against the order dated 07.06.2012 of the
Lahore High Court, Lahore passed in
Crl.Misc.No. 1496-B-2012)
Salamat Ali alias Chaama
…
Petitioner
VERSUS
The state and another.
…
Respondents
For the Petitioner:
Mr. Maqbool Elahi Malik, ASC
For Respondent No.1:
Mr. Asjad Javed Ghural, Addl.PG.Pb.
For Respondent No.2:
Mr. Munir Ahmed Bhatti, ASC
Date of Hearing:
31.08.2012
ORDER
Jawwad S. Khawaja, J. The petitioner seeks bail in the case FIR
No.417 dated 20.06.2011 under Sections 324, 427, 148, 149, 337-F(vi)
PPC registered at Police Station city Muridkaey, District Sheikhupura.
The order which has been passed by the learned trial court on
21.07.2012 is reproduced below in extenso:-
2.
It is obvious that the learned trial Court exercised extreme patience
and restraint but counsel retained by the petitioner adopted an attitude
which has hindered the administration of justice. Mr. Maqbool Elahi
Malik learned Sr. ASC candidly stated that the attitude of counsel for
the petitioner before the learned trail Court was most improper and
should not be countenanced. Upon being questioned we have been
informed that Malik haider Zaman, Advocate Continues to be the counsel
of the petitioner even to date. Learned counsel for the petitioner has
argued that the testimony of even one witness has not been recorded in
the case so far. This contention is of little relevance considering the
attitude of the contention is of little relevance considering the attitude of
the petitioner’s counsel noted in the order reproduced above. Learned
counsel for the petitioner states that consequences of such attitude
should not be visited on the petitioner, who according to him, had
acquired a statutory right to bail under Section 497 CR.P.C.
3.
In support of his contention, he referred to the cases titled Rahim
Bux and others versus The State (PLD 1986 Karachi 224) & Zahid
Hussain Shah versus The State (PLD 1995 SC 49). We have gone through
the cited precedents and note that the same do not apply in the
circumstances of the present case because the same are clearly
distinguishable on facts. In the present case the petitioner acting
through and represented by his counsel has actually obstructed the
progress of the case. This was not the situation in the precedents cited
by learned counsel for the petitioner. The petitioner by retaining the
same counsel has, in effect, adopted and condoned the attitude of his
counsel. The contention of the learned counsel for the petitioner is,
therefore, misconceived as the present petition has itself demonstrated
that the concession of bail or the discretionary exercise of our
jurisdiction under Article 185 of the Constitution should not be exercised
in view of what has been stated above and in the order of the learned
trail Court dated 21.07.2012.
4.
A competent, diligent and ethical Bar is an indispensable
component of our judicial system. This system cannot function properly
if Members of the Bar do not adhere to the code of conduct prescribed
under the Legal Practitioners and Bar Councils Act, 1973.
5.
This petition is, therefore, dismissed. A copy of the order shall be
sent to the Punjab Bar Council for disciplinary proceedings against Malik
Haider Zaman. A copy of the order shall also be sent to Hon’ble the Chief
Justice of the Lahore High Court. We would like to express our
appreciation for the dignified and firm approach taken by the learned
trail Court in the face of provocation and trying circumstances. The office
shall send a copy of this order to the learned trail Judge who was the
Presiding Officer at the trail on 21.7.2012.
Judge
Judge
Judge
Islamabad, the:
31st August, 2012.
(Appellate Jurisdiction)
Criminal Petition No. 240 of 2012
Crl. Misc. No. 1496-B-2012
07.06.2012
1
2
2012
31
324, 427, 148, 149,
20.06.11
FIR No. 417
21.07.12
PPC337-F(vi)
03-04-12
presiding court
apprise
assume
press
26.07.12
27
2
ASC
497
(PLD 1986 Karachi
3
PLD 1995 SC 49
224
185
21.07.12
4
1973
5
21.07.12
2012
31
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE YAHYA AFRIDI
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
CRIMINAL PETITION NO. 245 OF 2023
(On appeal against the judgment dated 20.02.2023
passed by the Peshawar High Court, D.I.Khan in
Crl. MBC No. 123-D/2022)
Saeed Ullah,
Yar Muhammad,
Inayat Ullah
… Petitioners
Versus
The State and another
… Respondents
For the Petitioners:
Mr. Aftab Alam Yasir, ASC
For the State:
Mr. Sultan Mazhar Sher Khan, Addl. A.G.
For the Complainant:
Raja Muhammad Farooq, ASC
Date of Hearing:
04.05.2023
ORDER
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through the instant petition
under Article 185(3) of the Constitution of Islamic Republic of Pakistan,
1973, the petitioners have assailed the judgment dated 20.02.2023 passed
by the learned Single Judge of the learned Peshawar High Court, D.I. Khan
Bench, with a prayer to grant post-arrest bail in case registered vide FIR
No. 300 dated 17.11.2021 under Sections 324/34 PPC at Police Station
SNK, District D.I. Khan, in the interest of safe administration of criminal
justice.
2.
Briefly stated the allegation against the petitioners is that
they along with co-accused while armed with Kalashnikovs launched a
murderous assault on the complainant party and due to the firing made by
them, the complainant sustained injuries on his body. After their arrest,
the petitioners applied for post-arrest bail before the learned Trial Court
and succeeded in getting the relief sought for. Being aggrieved, the
complainant filed cancellation of bail petition before the learned High
Criminal Petition No. 245/2023
2
Court, which has been allowed vide impugned judgment. Hence, this
petition seeking leave to appeal.
3.
At the very outset, it has been argued by learned counsel for
the petitioners that the petitioners have been falsely roped in this case
against the actual facts and circumstances. Contends that the allegations
leveled against the petitioners are false, frivolous, baseless, concocted and
the prosecution story is not worthy of credit. Contends that in the crime
report no specific role has been attributed to the petitioners and the same
is general in nature, therefore, the case of the petitioners is one of further
inquiry. Contends that injuries sustained by the complainant are on non-
vital parts of the body, as such, the provision of Section 324 PPC is not
attracted in the case. Contends that the learned High Court while recalling
the bail granted to the petitioners has not followed the guidelines issued
by this Court for the safe administration of criminal justice, therefore, the
same may be set at naught and the petitioners may be released on bail.
4.
On the other hand, learned Law Officer assisted by learned
counsel for the complainant opposed the petition by contending that the
petitioners have specifically been nominated in the crime report with a
specific role of firing at the complainant, therefore, they do not deserve
any leniency from this Court
5.
We have heard learned counsel for the parties at some
length and have perused the available record with their able assistance.
6.
As per the contents of the crime report, the allegation
against the petitioners is that they along with co-accused while armed
with Kalashnikovs launched a murderous assault on the complainant party
and due to the firing made by them, the complainant sustained injuries on
his body. There is no denial to this fact that it’s a case of promptly lodged
FIR as the matter was reported to the Police within an hour of the
occurrence. However, we have noted that only a general role has been
ascribed to the petitioners and no details have been given as to which
petitioner fired at which part of the body of the complainant. The
Criminal Petition No. 245/2023
3
complainant received injuries on the non-vital parts of the body. A bare
perusal of the medico legal report reveals that at the one hand the
medical officer declared the injuries as “simple” and on the other hand he
held the same to be “grievous”. On court query, learned Law Officer
admitted that none of the injuries exposed the bone. It is now well settled
principle of law that if two views are possible from the evidence adduced
in the case then the view favourable to the accused is to be adopted.
Reliance is placed on Saghir Ahmed Vs. State (2023 SCMR 241) and Sahib
Ullah Vs. The State (2022 SCMR 1806). As stated above, the complainant
sustained injuries on non-vital parts of the body whereas more than 37
empties have been recovered from the place of occurrence, which prima
facie shows that the accused had no intention to kill the complainant
despite having ample opportunity to do so. In this view of the matter, the
question whether Section 324 PPC would be applicable in the case or not
would be determined by the learned Trial Court after recording of
evidence. In the case reported as Samiullah Vs. Laiq Zada (2020 SCMR
1115), this Court has framed following seven guidelines for the purpose of
cancellation of bail: -
“i) If the bail granting order is patently illegal, erroneous,
factually incorrect and has resulted into miscarriage of justice.
ii) That the accused has misused the concession of bail in any
manner.
iii) That accused has tried to hamper prosecution evidence by
persuading/pressurizing prosecution witnesses.
iv) That there is likelihood of absconsion of the accused beyond
the jurisdiction of court.
v) That the accused has attempted to interfere with the smooth
course of investigation.
vi) That accused misused his liberty while indulging into similar
offence.
vii) That some fresh facts and material has been collected during
the course of investigation which tends to establish guilt of the
accused.”
7.
On our specific query, learned counsel for the complainant
admitted that none of the above-said principles have been violated, which
could be made basis to cancel the bail granted to the petitioners by the
Criminal Petition No. 245/2023
4
learned Trial Court. In the Samiullah supra case this Court in categorical
terms has held that where material available on the record does not
support a finding of misuse of concession of bail by the accused in any
manner, the court can decline cancellation of bail even if it is satisfied that
the bail granting order passed by the court below is not sustainable in the
eye of law. However, we are of the view that the learned High Court did
not take into consideration the above aspect of the matter. Even this
Court has shown magnanimity where although the order granting bail to
the accused by the court was found to be perverse but showed reluctance
to recall the order. Reliance is placed on Shahid Arshad Vs. Muhammad
Naqi Butt (1976 SCMR 360). This court in a number of cases has held that
liberty of a person is a precious right, which has been guaranteed under
the Constitution of Islamic Republic of Pakistan, 1973, and the same
cannot be taken away merely on bald and vague allegations. Taking into
consideration all the facts and circumstances stated above, we are of the
view that the case of the petitioners squarely falls within the ambit of
Section 497(2) Cr.P.C. entitling for further inquiry into their guilt.
8.
For what has been discussed above, we convert this petition
into appeal, allow it and set aside the impugned judgment. The petitioners
are admitted to bail subject to their furnishing bail bonds in the sum of
Rs.200,000/- each with one surety each in the like amount to the
satisfaction of learned Trial Court.
JUDGE
JUDGE
Islamabad, the
4th of May, 2023
Not Approved For Reporting
Khurram
|
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Umar Ata Bandial
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.251 of 2020
(Against order dated 6.2.2020 passed by
the Lahore High Court Lahore in Crl. Misc.
No.2091-B/2020)
Alamgir Khan
…Petitioner(s)
Versus
The State & another
…Respondent(s)
For the Petitioner(s):
Mr. Abdul Latif Afridi, ASC
For the State:
Mr. Ahmed Raza Gillani, Additional P.G.
Punjab
with
M.
Nawaz
SHO
and
M. Sarwar, SI, P.S. Civil Lines, Lahore.
Date of hearing:
30.03.2020.
ORDER
Qazi Muhammad Amin Ahmed, J.- Behind bars since
01.12.2019, Alamgir Khan alias Alamgir Wazir, petitioner, seeks
admission to bail; it is alleged that on 29.11.2019, at about 4:30 p.m,
he delivered an incendiary speech, on a loud speaker, to a rally
comprising 250/300 participants on the Mall Road Lahore; speakers
incited the participants through inflammatory addresses against the
State institutions, video streamed by the officials deployed at the scene
captured the incident; a case vide FIR No.990 of 2019 under Sections
124-A, 290, 291 of the Pakistan Penal Code, 1860 read with Section 16
of the Maintenance of Public Order 1960 and Section 6 of the Punjab
Sound Systems (Regulations) Act 2015 was registered on the complaint
of Muhammad Nawaz SI with Police Station Civil Lines Lahore on
01.12.2019.
2.
Learned counsel for the petitioner contends that the
petitioner, hailing from the District South Wazirastan, is an errant
youth, emotionally devastated by colossal loss of lives of his clan
including that of his father at the hands of Taliban in the aftermaths of
Criminal Petition No.251 of 2020
2
war against terror and as such his outburst cannot be viewed as
seditious within the contemplation of section 124-A of the Code ibid; it
is next argued that offence of sedition though possibly punishable with
imprisonment for life, nonetheless, carries the possibility of shorter
sentence extending to three years while the coordinate charges do not
attract the “prohibition”. Referring to clean antecedents, Mr. Abdul Latif
Afridi, ASC, under instructions, emphatically pledged petitioner’s
discreet and cautious future conduct. Learned Law Officer contested
the plea by relying upon the transcript of the impugned speech to argue
that the petitioner not only disrupted the public life on a thoroughfare
in the metropolis but also incited sedition to the public at large and,
thus, his release would be prejudicial to peace, security and tranquility.
3.
Heard. Record perused.
4.
Freedom of speech is a most cherished right, guaranteed
under the Constitution; it is certainly subject to “reasonable
restrictions” within the contemplation of Article 19 thereof; whether in
his outburst, mentioned in the transcript, the petitioner contravened
the stipulated restrictions, is a question to be best settled by the trial
Court, having regard to the totality of the impugned discourse, after
conclusion of evidence. State must be benign upon dissent and
criticism of its citizens, no matter how crudely articulated or misplaced,
on the issues of desecration of the right to life during war through
opinions, though subjective, nonetheless, actuated by personal
anguish; it must stand on surer foundations.
Petitioner is a student, his days of incarceration are serving no
useful purpose to the prosecution. Criminal Petition is converted into
appeal and same is allowed; the petitioner shall be released upon
furnishing bond in the sum of Rs.100,000/- with one surety in the like
to the satisfaction of the learned trial Court/Duty Magistrate.
Judge
Judge
Islamabad, the
30th March, 2020
Not approved for reporting
Azmat/-
|
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
MR. JUSTICE SAJJAD ALI SHAH
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
CRIMINAL PETITION NO.252 OF 2020
(Against the order of the Lahore High
Court, Bahawalpur Bench, Bahawalpur
dated 22.01.2020 passed in Crl.Misc. (No.
3350-B/2019)
Babar Hussain
… Petitioner
Versus
The State and another
… Respondents
For the Petitioner
:
Mr. Qadeer Ahmad Rana, ASC
For the State
:
Mirza Usman, DPG Punjab with Shafqat
SHO, police station Manchanabad.
Date of Hearing
:
13.04.2020
ORDER
SAYYED MAZAHAR ALI AKBAR NAQVI:- Petitioner
Babar Hussain has sought leave to appeal under Article 185(3) of
the Constitution of Islamic Republic of Pakistan, 1973 against the
order
of
learned
Lahore
High
Court,
Bahawalpur
Bench,
Bahawalpur dated 22.01.2020 by which the petition for post arrest
bail was declined in case FIR No.106/2018 dated 07.03.2018,
registered with police station Manchanabad, District Bahawalnagar.
2.
As per allegations, contained in the crime report, it is
alleged that the petitioner and his co-accused committed theft of dry
batteries from Ufone Tower and during the occurrence, his co-
accused Attaullah was murdered. The petitioner was saddled with
responsibility of alleged crime. In response to the crime report, the
petitioner was taken into custody by local police. He applied for post
arrest bail before learned trial court which was declined vide order
Criminal Petition No. 252 of 2020.
-: 2 :-
dated 12.11.2019; the same was assailed before learned High
Court through Crl. Misc. No. 3350-B of 2019 which too met the same
fate, hence, this petition.
3.
The crux of the arguments advanced by the learned
counsel for the petitioner is that there is allegation of generalized
nature of resorting to indiscriminate firing against all the accused
persons nominated in the crime report. They indulged in such an act
when they were confronted by the security staff deployed over there
after hearing voice of safety alarm installed there. The accused
persons escaped from the scene of occurrence while resorting to
indiscriminate firing which as per prosecution case ultimately had
hit Attaullah who succumbed to the injuries after five to seven days.
There is no denial to this fact that allegation of firing is ascribed to
all the accused while escaping from the scene of occurrence. The
statement of Attaullah deceased coupled with the application moved
by widow of deceased to District Police Officer alleged that the firing
was made by the petitioner before this Court. As far as the
culpability of deceased as alleged in the crime report is taken into
consideration, whereas the veracity of other story advanced by the
deceased while making dying declaration couple with the
application moved by widow of the deceased to the District Police
Officer, it cannot be adjudicated at this juncture of time rather it
would be decided by learned trial court after recording of evidence
during the course of trial.
4.
As far as the contention of learned Law Officer that the
petitioner is involved in six other criminal cases would not disentitle
him from the relief sought for as learned Law Officer frankly
Criminal Petition No. 252 of 2020.
-: 3 :-
conceded that petitioner has not been convicted in any case, hence,
mere involvement in criminal cases could not be a ground to
withhold the concession of bail in the given circumstances. Reliance
in this regard is placed upon cases titled as “Moundar and others
vs. The State” (PLD 1990 S.C. 934) and “Muhammad Rafique Vs.
The State” (1997 SCMR 412). As the allegation against the petitioner
is of two versions, one advanced in the crime report, the other
brought on the record in the shape of statement of Attaullah
deceased as well as mentioned in the application filed by the widow
of the deceased, it would squarely bring the case of the petitioner
within the ambit of further inquiry falling under section 497(2)
Cr.P.C. entitling him for the relief sought for. Otherwise liberty of a
person is a precious right which has been guaranteed in the
Constitution of Islamic Republic of Pakistan, 1973. Keeping in view
the facts and circumstances brought on the record, we are
persuaded to grant leave in this case. As a consequence, Criminal
Petition is converted into appeal, same is allowed; the petitioner
shall be released on bail subject to furnishing of bail bonds in the
sum of Rs.5,00,000/- with one surety in the like amount to the
satisfaction of the learned trial Court/Duty Judge.
Judge
Judge
Islamabad,
13.04.2020
Approved for reporting
Athar
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Umar Ata Bandial
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.258 of 2020
(Against judgment dated 06.02.2020 passed by the
Lahore High Court Lahore in Crl. Misc. No.4879-
B/2020)
Muhammad Jahangir Afzal
…Petitioner(s)
Versus
The State through P.G. Punjab & another
…Respondent(s)
For the Petitioner(s):
Mr. Shamim-ur-Rehman Malik, ASC
Syed Rifaqat Hussain Shah, AOR
For the State:
Mr. Ahmed Raza Gillani
Addl. Prosecutor General Punjab
with Abdul Ghani, SI
For the Complainant:
In person
Date of hearing:
28.04.2020.
ORDER
Qazi Muhammad Amin Ahmed, J.- Adnan Ahmed, 26,
was shot dead at 8:30 p.m. on 22.8.2019 within the remit of Police
Station Ferozwala, District Sheikhupura; Muhammad Tariq PW
survived the assault; incident was reported by deceased’s mother Talat
Gulzar through written application wherein Rohail son of Gulzar
accompanied by an unknown assailant was blamed for the assault
without reference to motive for the crime; she inducted the petitioner
as accused through supplementary statement purportedly recorded on
23.08.2019, in line with even dated statements of her brother Shafqat
and daughter Sobia, acclaimed witnesses of the incident. Muhammad
Tariq, injured PW, through statement dated 26.8.2019 took the
petitioner on board as well, though in a manner, diametrically
different. According to Muhammad Tariq PW, he alongside the
deceased was surprised by the petitioner and Rohail co-accused, riding
a motorbike, while they were present in the lane during load shedding;
complainant as well as the witnesses named in the crime report are
conspicuous by their absence; they are substituted by Tariq’s sister
Criminal Petition No.258 of 2020
2
Shamim Akhtar; retracting therefrom, he ditched the prosecution on
08.11.2019 by substituting the petitioner with an unknown assailant
who accompanied the nominated co-accused.
2.
Heard. Record perused.
3.
Seemingly there is no consensus between the complainant
and the injured on the identity of the petitioner; even subsequently
assigned role to the petitioner is not shared by the Investigating Officer
who merely depicted his presence at the crime scene in a manner
incompatible
with
witnesses’
narrative.
Evidential
value
of
supplementary statements with the possibility of a space to reconcile
differences between the witnesses is an exercise that can be best
undertaken after recording of evidence and as such petitioner’s
culpability for the present is squarely covered by subsection 2 of
section 497 of the Code of Criminal Procedure 1898; a case for grant of
bail stands made out. Criminal Petition is converted into appeal and
allowed; petitioner shall be released on bail subject to his furnishing
bond in the sum of Rs.500,000/- with one surety in the like amount to
the satisfaction of the learned trial Court/duty Judge.
Judge
Judge
Islamabad, the
28th April, 2020
Not approved for reporting
Azmat/-
|
{
"id": "Crl.P.L.A.258_2020.pdf",
"url": ""
}
|
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mazhar Alam Khan Miankhel
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition Nos.26-P & 27-P of 2020
(Against the order dated 14.11.2019 passed by the Peshawar High Court Peshawar
passed in Cr.A. No.104-P/2019)
State through Director ANF
(in both cases_
…Petitioner(s)
Versus
Aurangzeb
(in Cr.P..26-P/2020)
Malook
(in Cr.P.27-P/2020)
…Respondent(s)
For the Petitioner(s):
Mr. Muhammad Tariq,
Special Prosecutor, ANF (in both cases)
For the Respondent(s): N.R. (in both cases)
Date of hearing:
28.07.2021
ORDER
Qazi Muhammad Amin Ahmed, J.- Commonality of the
issue binding Cr. P.26-P of 2020 with Cr. P.27-P of 2020, directed
against Aurangzeb and Malook, respondents, respectively, necessitates
a joint consideration.
The respondents were hauled up, on 28.11.2017, by a contingent
of
Anti-Narcotic
Force
Peshawar
with
18.600
kilograms
of
methamphetamine, a synthetic psychoactive drug, designated as a
contraband within the contemplation of section 8 of the Control of
Narcotic Substances Act, 1997; it comprised of 34000 tablets, wrapped
in packets, comprising two lots, separately secured from different
points; 34 tablets from each lot were sent for forensic analysis that
confirmed their narcotic character as “Metamfetamine, Benzodiazepine,
Phencyclindine And Morphine”.
2.
Indicted under clause (c) of Section 9 of the Act ibid,
respondents claimed trial that resulted into their conviction thereunder;
vide judgment dated 29.01.2019, they were sentenced to imprisonment
for life with a direction to pay fine in the sum of rupees one million
each; the High Court, however, considering the samples for forensic
Criminal Petition No.26 & 27-P/2020
2
analysis as deficient in terms of law declared by this Court in Ameer
Zaib case (PLD 2012 SC 383) altered their conviction in appeals,
separately filed by the convicts, into clause (a) of the section ibid and
reduced their sentences to the periods already undergone by them with
a substantial reduction in the fine vide impugned judgment dated
14.11.2019, vires whereof, are being assailed on the grounds that there
was no occasion for the High Court after maintaining the convictions to
reduce convicts’ sentences on a premise hardly sustainable in law. The
learned counsel elaborated his point of view by arguing that the High
Court had misdirected itself to apply the principle laid down in the
supra case in disregard to the nature, shape and format of the
contraband, uniquely integrated into small tablet form, incapable of
traditional sampling suggested in the case; he next argued that the
Control of Narcotic Substances Act covered a wide range of “narcotic
drugs, psychotropic substances or controlled substances” manufactured,
marketed and administered through various mediums other than usual
chunks of shaped pieces and, thus, in the peculiar circumstances of
case, dispatch of 34 tablets, from each lot, squarely constituted
representative samples, leaving no space for a contra hypothesis. Any
other interpretation or approach would defeat the legislative intent and
purpose, concluded the learned Law Officer. Leave is granted to
examine the validity of above position. Send for the respondents
through bailable warrants in the sum of Rs.200,000/- each, returnable
to the Assistant Registrar of this Court at Peshawar. Station House
Officer shall execute the warrants within a fortnight.
Judge
Judge
Peshawar, the
28th July, 2021
Not approved for reporting
Azmat/-
|
{
"id": "Crl.P.L.A.26-P_2020.pdf",
"url": ""
}
|
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Manzoor Ahmad Malik
Mr. Justice Syed Mansoor Ali Shah
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.263-L of 2015 and
Jail Petition No.407 of 2018
(Against the judgment dated 16.01.2015 passed by the
Lahore High Court Lahore in Criminal Appeal No.
1626/2010 with M.R. No.413/2010)
Ibrar Hussain
(in Cr.P. 263-L/2015)
Riaz Hussain
(in J.P. 407/2018)
…Petitioner(s)
Versus
The State
(in both cases)
…Respondent(s)
For the Petitioner(s):
Mrs. Nighat Saeed Mughal, ASC
(in Cr.P. 263-L/2015)
N.R.
(in J.P.407/2018)
For the State:
Rana Abdul Majeed,
Additional Prosecutor General Punjab
Date of hearing:
16.07.2020.
JUDGMENT
Qazi Muhammad Amin Ahmed, J.- Ibrar Hussain son of Zawar
Hussain and Riaz Hussain son of Ashiq Hussain, petitioners herein, were
tried by the learned Sessions Judge Mianwali for committing Qatl-i-Amd of
Abdul Aleem, 35/36, on 14.10.2008 at 7:45 p.m, inside his home, located
within the remit of Police Station Wan Bhachran, District Mianwali; they
were returned a guilty verdict vide judgment dated 15.06.2010; convicted
under clause (b) of section 302 of the Pakistan Penal Code, 1860, both
were sentenced to death, altered into imprisonment for life by the High
Court vide impugned judgment dated 16.01.2015, vires whereof are being
Criminal Petition No.263-L of 2015 and Jail Petition No.407 of 2018
2
separately assailed through Criminal Petition No.263-L of 2015 and Jail
Petition No.407 of 2018; the latter barred by 1189 days; financial
incapacity appears to have impeded Riaz Hussain’s approach to this Court
in time, in view whereof delay of 1189 days in filing of the petition is
condoned in the interest of justice, additionally justifiable on account of
con-convict’s petition within the period of limitation; bound by a common
thread, these are being decided through this single judgment.
2.
Incident was reported by deceased’s father Abdul Raheem,
since dead, through statement Ex.PK, recorded by Muhammad Iqbal,
Inspector (PW-12) at the police station situating 9-k.m. from the venue at
10:15 p.m. According to the complainant, deceased, a Hakeem by
profession, was running a shop for last 12/13 years where he used to stay,
off and on, and the complainant occasionally visited him as well. On the
fateful night at 7:45 p.m, the deceased along with the complainant,
Gul Muhammad and Haji Khalid Masood (PW-11) was sitting in the
courtyard when the petitioners, armed with .12 caliber shotguns entered
the home. Ibrar Hussain raised Lalkara and targeted the deceased on the
left side of his chest followed by Riaz Hussain with a shot that landed on
the pelvis; Ibrar Hussain repeated a shot hitting his left shin; upon hue
and cry, they took to the heels. Witnesses claimed to have seen the
incident in the bulb light. It is alleged that the deceased also attended his
patients, including the females, at the residence and he objected over the
petitioners’ presence outside his dwelling that resulted into exchange of
hot words, a rancor that prompted the petitioners to assault the deceased.
Autopsy was conducted following day at 7:00 a.m. Five entry wounds
with multiple apertures surrounded by blackened margins, riddled mainly
frontal parts of deceased’s body. During inspection though blood,
forensically opined as that of human origin, was secured, however,
surprisingly no casing is shown or secured at the spot, nonetheless, the
petitioners after their arrest on 6.3.2009, pursuant to disclosures, got
recovered guns P-1 and P-3 on 11.03.2009.
3.
Learned counsel for the petitioners contends that occurrence
did not take place within the view of the witnesses nor at a point of time
stated in the crime report; that the High Court disbelieved the motive and
viewed recovery of guns as inconsequential and, thus, there was no
occasion to maintain conviction on the statement of solitary chance
witness; that autopsy was conducted with considerable delay and findings
thereof were not in line with the details narrated in the First Information
Criminal Petition No.263-L of 2015 and Jail Petition No.407 of 2018
3
Report; the conviction on such deficient evidence was not sustainable,
concluded the learned counsel. Learned Law Officer has faithfully defended
the impugned judgment.
4.
Heard. Record perused.
5.
Death intervened the complainant and Gul Muhammad PWs to
enter the witness box, leaving behind Khalid Masood (PW-11), the sole
narrator of the crime; fate of the case is inexorably linked with his
deposition. Though, somehow related with the deceased, the witness, a
fertilizer dealer running a shop nearby his house, located at a distance of
9 kilometer from the venue, his presence at the spot sans any purpose or
justification on a Tuesday apparently after close of the day; argument that
he was a chance witness cannot be summarily dismissed and in retrospect
warrants a more cautious scrutiny of his statement. Similarly the position
that occurrence took place much later in point of time than mentioned in
the crime report merits serious consideration in view of observations
recorded by the Medical Officer, who found that “Stomach was perforated
and damaged and it was full of partially digested food” as it does not
synchronize with the hypothesis of last intake to tally with the stated time
of occurrence. Five entry wounds on different sides of chest, abdominal
and pubic area, inner aspect of right thigh and back of right leg with
multiple apertures also prima facie negate the story of three fire shots.
Absence of any casing is yet another intriguing aspect of the case
compounded by blackening that encircled the each wound. Source of light
to establish identification of the assailants beyond doubt is yet another
predicament confronting the prosecution. The prosecution has relied upon
an electric bulb as the sole source of light to identify the petitioners,
however, Khalid Masood (PW-11) admitted in his cross-examination that
there was load shedding at the time of occurrence; he has tried to
introduce a UPS (Uninterrupted Power Supply), an apparatus that does not
figure anywhere on the record. In a sizzling hot season, presence of
witnesses in the courtyard without any apparent purpose makes their
presence all the more doubtful. With prosecution’s multiple failures on
motive, consequential recoveries, aggravated by a suspect source of light
and delayed postmortem, solitary statement of a chance witness, may not
be relied without potential risk of error as the circumstances cumulatively
suggest a scenario other than what meets the eye. It would be unsafe to
maintain the convictions, thus, Criminal Petition No.263-L of 2015 and
Jail Petition No.407 of 2018 are converted into appeals and allowed;
Criminal Petition No.263-L of 2015 and Jail Petition No.407 of 2018
4
impugned judgment dated 16.01.2015 is set aside; petitioners/appellants
are acquitted of the charge and shall be released forthwith, if not required
to be detained in any other case.
Judge
Judge
Judge
Lahore, the
16th July, 2020
Not approved for reporting
Azmat/-
|
{
"id": "Crl.P.L.A.263-L_2015.pdf",
"url": ""
}
|
IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE MUNIB AKHTAR
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
MR. JUSTICE ATHAR MINALLAH
CRIMINAL PETITION NO. 263 OF 2023
(On appeal against the order dated 22.02.2023 passed by
the High Court of Sindh, Karachi in Crl. Bail Application
No. 2107/2022)
Salman Zahid
… Petitioner
Versus
The State through P.G. Sindh
… Respondent
For the Petitioner:
Mr. Aamir Mansoob Qureshi, ASC
(via video link from Karachi)
For the State:
Mr. Hussain Bux Baloch, Addl. P.G.
Mr. Imtiaz Ali, Inspector
Mr. Rizwan Shah, Inspector
(Via video link from Karachi)
For the Complainant:
Mr. Saalim Salam Ansari, ASC
(Via video link from Karachi)
Date of Hearing:
27.04.2023
ORDER
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through the instant petition under
Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the
petitioner has assailed the order dated 22.02.2023 passed by the learned Single
Judge of the learned High Court of Sindh, Karachi, with a prayer to grant post-
arrest bail in case registered vide FIR No. 808 dated 29.06.2021 under Sections
302/337-J/109/34 PPC at Police Station Gulshan-e-Iqbal, District East, Karachi, in
the interest of safe administration of criminal justice.
2.
Briefly stated the prosecution story as narrated in the crime report
is that on 27.06.2021, the son of the complainant namely Yusha Rizwan along
with his wife Areen Jannat, went to three places namely (i) Greeno Juice Centre,
(ii) KFC and (iii) a medical store and from these three places, he had some
intoxicated thing, which ultimately caused his death. On 29.06.2021, the
complainant got lodged the FIR against the unknown persons, who were
present at these three places at the relevant time. On 30.06.2021, the
Criminal Petition No. 263/2023
2
complainant got recorded his statement under Section 161 Cr.P.C. wherein he
did not nominate anyone as an accused. On 09.07.2021, after 12 days of the
lodging of the FIR, the complainant recorded his further statement under
Section 161 Cr.P.C. in which he suspected the petitioner and others to be
murderer of his son. On 28.12.2021, after lapse of more than six months, the
complainant got recorded yet another further statement under Sections 161
Cr.P.C. wherein he nominated the petitioner to be the real culprit. The
petitioner was arrested on 17.02.2022 whereafter he applied for post-arrest bail
before the learned Trial Court as also before the learned High Court but could
not get the relief sought for. Hence, this petition.
3.
At the very outset, it has been argued by learned counsel for the
petitioner that the petitioner has been falsely roped in this case against the
actual facts and circumstances. Contends that the allegations leveled against
the petitioner are false, frivolous, baseless, concocted and the prosecution story
is not worthy of credit. Contends that the complainant nominated the petitioner
in his statement recorded under Section 161 Cr.P.C. after a period of six
months, therefore, it looses its sanctity. Contends that the USB allegedly
containing audio recording of conversation between the petitioner and the star
witness Nawaz was never sent for forensic examination. Contends that the
entire case of the prosecution is based upon circumstantial evidence and the
same is not sufficient to connect the petitioner with the commission of the
crime. Lastly contends that the learned High Court while declining bail to the
petitioner has not followed the guidelines issued by this Court for the safe
administration of criminal justice, therefore, the same may be set at naught and
the petitioner may be released on bail.
4.
On the other hand, learned Law Officer assisted by learned
counsel for the complainant opposed the petition by contending that the
petitioner has specifically been nominated by the complainant while recording
his supplementary statement and he was found involved during police
investigation, therefore, he does not deserve any leniency from this Court.
5.
We have heard learned counsel for the parties at some length and
have perused the available record with their able assistance.
Criminal Petition No. 263/2023
3
As per the contends of the crime report, on 27.06.2021 the son of
the complainant namely Yusha Rizwan along with his wife Areen Jannat, went to
three places namely (i) Greeno Juice Centre, (ii) KFC and (iii) a medical store and
from these three places, he had some intoxicated thing, which ultimately
caused his death. On 29.06.2021, the complainant got lodged the FIR against
the unknown persons, who were present at the above-said three places at the
relevant time. On 30.06.2021, the complainant got recorded his statement
under Section 161 Cr.P.C. wherein he did not name anyone as an accused.
However, on 09.07.2021, after 12 days of the lodging of the FIR, the
complainant recorded his further statement under Section 161 Cr.P.C. in which
he suspected the petitioner and others to be murderer of his son. He further got
recorded his statement on 28.12.2021 i.e. after lapse of more than six months
wherein he nominated the petitioner to be the real culprit. A bare look of the
crime report and the subsequent statements of the complainant under Section
161 Cr.P.C. shows that the complainant remained changing his stance. In his
statement dated 28.12.2021, it was stated that one Nawaz Mehmood was
contacted by the petitioner for the murder of the deceased but instead of
arraying the said Nawaz Mehmood as an accused, he was made a witness. This
is now a well settled proposition of law that any statement of the prosecution
witnesses if recorded at a belated stage, it looses its sanctity. Reliance is placed
on the judgments reported as Abdul Khaliq Vs. The State (1996 SCMR 1553) and
Noor Muhammad Vs. The State (2020 SCMR 1049). We have been informed
that the USB allegedly containing audio recording of conversation between the
petitioner and the star witness Nawaz Mehmood has not been sent for forensic
examination, therefore, in view of the law laid down by this Court in Ishtiaq
Ahmed Mirza Vs. Federation of Pakistan (PLD 2019 SC 675) it is unsafe to rely
upon the same as a piece of evidence in a court of law. The prosecution case
hinges upon the circumstantial evidence. The fundamental principle of universal
application in cases dependent on circumstantial evidence is that in order to
justify the inference of guilt of an accused, the incriminating fact must be
incompatible with the innocence of the accused and incapable of explanation
upon any other reasonable hypothesis than that of his guilt. The cumulative
effect of all these aspects creates a doubt in the genuineness of prosecution
version. It is settled principle of law that benefit of doubt can be even extended
Criminal Petition No. 263/2023
4
at bail stage. Reliance is placed on Muhammad Ejaz Vs. The State (2022 SCMR
1271), Muhammad Arshad Vs. The State (2022 SCMR 1555) & Fahad Hussain Vs.
The State (2023 SCMR 364). Although the petitioner was found involved during
Police investigation but it is settled law that ipsi dixit of the Police regarding the
guilt or innocence of an accused could not be depended upon as the same
would be determined by Trial Court on the basis of evidence available on
record. The petitioner is a young boy of 18/19 years of age and reportedly a
heart patient. He is behind the bars for the last more than 14 months. This court
in a number of cases has held that liberty of a person is a precious right, which
has been guaranteed under the Constitution of Islamic Republic of Pakistan,
1973, and the same cannot be taken away merely on bald and vague
allegations. Taking into consideration all the facts and circumstances stated
above, we are of the view that the case of the petitioner squarely falls within
the ambit of Section 497(2) Cr.P.C. entitling for further inquiry into his guilt.
6.
For what has been discussed above, we convert this petition into
appeal, allow it and set aside the impugned order. The petitioner is admitted to
bail subject to his furnishing bail bonds in the sum of Rs.200,000/- with one
surety in the like amount to the satisfaction of learned Trial Court. Before
parting with the order, we may observe that the observations made in this
order are tentative in nature and would not prejudice the proceedings before
the Trial Court.
JUDGE
JUDGE
JUDGE
Islamabad, the
27th of April, 2023
Approved For Reporting
Khurram
|
{
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"url": ""
}
|
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
Present:
MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL
MR. JUSTICE QAZI MUHAMMAD AMIN AHMED
Criminal Petition No.27-P of 2014
(Against the judgment dated 05.03.2014 passed by the
Peshawar High Court Peshawar in Cr. A. No.100/2011)
Gul Zarin and other
…Petitioner
Versus
Fazal Khaliq and another
..Respondent
For the Petitioner(s):
Haji Muhammad Zahir Shah, ASC
For the Respondent(s): N.R.
For the State:
Mr. Muhammad Nisar,
Addl. Advocate General KPK
Date of hearing:
06.7.2021
ORDER
Qazi Muhammad Amin Ahmed, J-. Respondent was
tried for murderous assault as well as on two counts of homicide by a
learned Additional Sessions Judge at Wari, District Dir Upper;
convicted on all counts, he was sentenced to imprisonment for life
and ten years rigorous imprisonment respectively vide judgment
dated 10.10.2011, overturned by a Division Bench of Peshawar High
Court, Mingora Bench vide impugned judgment dated 03.05.2014,
vires whereof, are being assailed on the grounds that in the face of
overwhelming evidence comprising of witnesses that included an
injured to support a dying declaration, there was no occasion for the
High Court to acquit the respondent, blamed alongside the
absconding co-accused for the crime in the backdrop of a motive over
immovable property, resulting into the loss of two lives; he has
referred to respondent’s return after absconsion, spreading over a
quarter of a century with his accomplices still away from law, to
finally earn acquittal. The learned counsel has further argued that
non-performance of autopsy on the dead, being a practice in line with
Cr.P.27-P/2014
2
local custom did not adversely reflect upon the prosecution case
inasmuch as the homicidal deaths of both the deceased remained a
common ground throughout; according to him, the impugned view
being based upon reasons, artificial and illusory, is untenable at law
and, thus, tends to result into miscarriage of justice, clamouring
interference by this Court.
Though much water has flown under the bridge, nonetheless,
the peculiar facts and circumstances of the case, despite flux of time,
call for reappraisal of prosecution’s evidence to secure the ends of
justice. Leave is granted, inter alia, to consider the above contentions.
Send for the respondent through bailable warrant in the sum of
Rs.200,000/- with one surety in the like amount, returnable to the
Assistant Registrar of this Court at Peshawar, to be executed through
the Station House Officer, within a fortnight.
Judge
Judge
Peshawar,
6th July, 2021
Azmat/-
‘Not approved for reporting’
|
{
"id": "Crl.P.L.A.27-P_2014.pdf",
"url": ""
}
|
IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE UMAR ATA BANDIAL
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
CRIMINAL PETITION NO. 273-L OF 2021
(On appeal against the order dated 11.02.2021
passed by the Lahore High Court, Lahore in Crl.
Misc. No. 65023-B/2020)
Major Rehan Zia
… Petitioner
Versus
The State and another
…Respondent(s)
For the Petitioner:
Mr. Muhammad Anes Ghazi, ASC a/w
petitioner in person
For the State:
Mr. Khurram Khan, Addl.P.G. Punjab
Mr. Nasir, S.I
For the Respondent (2):
Ms. Lubna Afzal, in person
Date of Hearing:
03.01.2022
ORDER
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- The petitioner through
this petition under Article 185(3) of the Constitution of Islamic
Republic of Pakistan, 1973, has assailed the order dated
11.02.2021 passed by the learned Single Judge of the Lahore High
Court, Lahore, with a prayer to grant pre-arrest bail in case
registered vide FIR No. 120/2020 dated 13.03.2020 under Sections
448/380 PPC with Police Station Model Town, Lahore, in the interest
of safe administration of criminal justice.
2.
Precisely the allegation against the petitioner is that in
between the night 17/18-08-2019, he had broken up the locks of the
room of the complainant; had stolen the luggage belonging to the
complainant and thereafter while misusing his official authority
occupied the room and extended threats to dire consequences.
3.
The learned counsel for the petitioner at the very outset
has argued that the petitioner has been falsely roped in this case
Criminal Petition No. 273-L/2021
-: 2 :-
against the actual facts and circumstances due to mala fides of the
complainant in connivance with local police. Further contends that
the occurrence has taken place in the dark hours on 17/18-08-2019,
however, the matter was reported with the delay of seven months
for which no plausible explanation has been rendered. Contends
that even prior to lodging of the instant application, an application
was filed on 30.09.2019, which was found false during the course
of interrogation by two senior gazetted officers of the Police.
Contends that the allegations against the petitioner are bald, which
are not substantiated by any material and even the list of articles
allegedly stolen was placed on the record after the registration of the
crime report, which is sufficient to discard the whole prosecution
case. Contends that the petitioner being an Army officer was posted
in operational area of Wanna at the time of alleged occurrence and
as such the whole prosecution case is smashed to ground on this
score alone. Contends that the very registration of this case is
nothing but an abuse of process of law. Lastly contends that the
petitioner being an Army officer, there is no chance of his
absconsion.
4.
On the other hand, learned Law Officer contends that
the complainant had no malice to falsely involve the petitioner in the
present case but admitted that he had expired during the pendency
of the case. Further contends that the petitioner is specifically
arrayed as an accused, therefore, he does not deserve any leniency
by this Court.
5.
We have heard learned counsel for the parties at some
length and have perused the available record.
There is no denial to this fact that the instant
prosecution was lodged with inordinate delay of about seven
months in which the petitioner has sought extraordinary relief from
this Court. The perusal of the record clearly reflects that it was at-
least the second attempt made by the complainant to proceed
against the petitioner. In earlier round of litigation, the accusation
against the petitioner was found baseless and in this regard a
detailed inquiry was carried out by SP Model Town, Lahore. After
Criminal Petition No. 273-L/2021
-: 3 :-
the completion of the inquiry, the Inquiry Officer, a senior police
officer was also saddled with the allegation of not conducting the
investigation as per law. The same was probed into by SSP
(Accountability) and the fate of the allegation against SP Model Town
was found to be baseless and without any legal justification.
Perusal of the instant petition reveals that there are only bald
allegations against the petitioner as time, date and detail of the
allegedly stolen articles is not given. Even it is an admitted fact that
the petitioner is the sole proprietor of the house and this has been
declared by a court of competent jurisdiction after prolonged
litigation. It has been brought to the notice of this Court that after the
moving
of
application
before
the
Investigating
Officer,
the
complainant passed away. During the course of proceedings, one
lady claiming herself to be sister-in-law of the deceased complainant
tried to take charge as complainant. She was in-fact claiming her
status on the basis of a power-of-attorney, which does not exist in
the eyes of law as the executant of the same has already passed
away. As far as criminal law is concerned, the concept of initiation
of prosecution lies with the aggrieved person under Section 154
Cr.P.C. and thereafter the same is entrusted to the State whereas
under Section 494 Cr.P.C if the proceedings are supposed to be
withdrawn, the same is responsibility of the Public Prosecutor. After
the promulgation of Qisas and Diyat Ordinance, 1990, the scope of
aggrieved person has been extended. However, it was only limited
to the cases relating to bodily harm. The instant case only relates to
Sections 448/380 PPC, which do not come within the ambit of bodily
harm, therefore, the extension of definition of aggrieved person is not
available to said lady in the given circumstances. We have also
noticed that the petitioner, who is an officer of Pakistan Army has
been entangled in this case on the basis of material, which prima
facie does not constitute any offence. Even otherwise, he being a
member of the services, it seems that there is no chance of his
absconsion, which aspect further lends support in his favour as far
as the relief sought for is concerned. Unfortunately, the courts below
have altogether ignored these aspects, which may intrude the
concept of safe administration of criminal justice.
Criminal Petition No. 273-L/2021
-: 4 :-
6.
In view of the facts and circumstances narrated above
and evaluated on the touchstone of criminal justice, we convert this
petition into appeal, allow it and set aside the impugned order dated
11.02.2021. The petitioner is admitted to bail subject to his
furnishing bail bonds in the sum of Rs.200,000/- with one surety in
the like amount to the satisfaction of learned Trial Court.
JUDGE
JUDGE
Lahore, the
3rd of January, 2022
Approved For Reporting
Khurram
|
{
"id": "Crl.P.L.A.273-L_2021.pdf",
"url": ""
}
|
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Maqbool Baqar
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.275 of 2021
(Against the judgment dated 22.02.2021 passed by the Lahore High
Court, Multan Bench in Crl. Misc. No.1185-CB/2021)
Muhammad Ismail
…Petitioner(s)
Versus
The State & others
…Respondent(s)
For the Petitioner(s):
Mr. Ejaz Ahmed Toor, ASC
For the Respondent(s):
Mr. Muhammad Bilal Butt, ASC along
with accused
For the State:
Mirza Abid Majeed, Deputy Prosecutor
General with Hammad, DSP and M.
Hanif, I.O.
Date of hearing:
17.11.2021.
ORDER
Qazi Muhammad Amin Ahmed, J.- Having left home the
preceding night, Muhammad Waseem, 24/25, was spotted dead with
multiple gun wounds within the precincts of Police Station Saddar
Multan at 8:40 a.m. on 26.10.2019; crime report lodged by his father
Muhammad Ismail sans the names of culprits as well as motive,
suspected for the crime, however, through a supplementary statement
he nominated besides the respondents Muhammad Attique Khan,
Muhammad Ismail and Muhammad Zain-ul-Abideen as the suspects.
Deceased’s carnal designs on Muhammad Attique’s son Haris are
alleged to have cost him his life. As the investigation progressed, the
Investigation Officer recorded statements of as many as four witnesses,
pointing their fingers upon the respondents as well as Muhammad
Attique; latter assigned the fatal shots. The respondents, statedly, made
separate confessions before the witnesses wherein they admitted, not
only to have conspired the crime with the principal accused but also
flanked him during his fatal encounter with the deceased. A learned
Additional Sessions Judge at Multan, however, admitted both the
respondents to anticipatory bail vide order dated 10.12.2020, upheld by
Criminal Petition No. 275 of 2021
2
a learned Judge-in-Chamber vide impugned order dated 22.2.2021,
being assailed on the grounds that in the face of overwhelming
evidence,
unambiguously
pointed
upon
the
culpability
of
the
respondents being comrades in the crime, there was no occasion for the
learned Addl. Sessions Judge to extend them judicial protection merely
for the reason that some other co-accused were granted post arrest bail
by the High Court; the bottom line is that protection of pre-arrest bail is
an entirely different regime, governed by considerations hardly
applicable at post arrest stage; he has been joined in his opposition by
the learned Law Officer.
Learned counsel for the respondents, contrarily, defended the
impugned order on the grounds that the respondents were not named
in the crime report and their implication on the basis of a belatedly
recorded supplementary statement is structured on a misplaced and
misconceived suspicion; it is next argued that the respondents had no
earthly reason to tread on red coals particularly when there existed no
incriminatory evidence that could even obliquely connect them with the
crime and as such the entire edifice appears to have been raised on
foundations tainted with mala fide on the basis of statements, stage-
managed subsequent to the incident and, thus, judicial protection
extended
to
them
is
an
arrangement,
most
conscionable
in
circumstances.
2.
Heard. Record perused.
3.
What weighed with the learned Additional Sessions Judge
to grant extraordinary relief of pre-arrest bail to the respondents are
certain observations by a learned Judge-in-Chamber of the Lahore High
Court Multan Bench whereby two from amongst the accused were
released on post arrest bail and it is in this backdrop he seemingly
opted to suspend the usual course of law by invoking principle of
requirement of consistency. It goes without saying that an accused of a
cognizable offence scheduled as non-bailable can only claim protection
of anticipatory bail by reasonably demonstrating his intended arrest
being contemplated by considerations mala fide and sinister, designed
to abuse process of law. It is a judicial protection rooted into equity;
whereas an accused in custody after completion of investigation can be
released on bail on the touchstone of consideration statutorily
enumerated in subsection 2 of section 497 of the Code of Criminal
Procedure, 1898, these two have no parallels.
For effective administration of criminal justice, it is most
important that prosecution is allowed a meaningful opportunity to carry
Criminal Petition No. 275 of 2021
3
out and conclude the investigative process as apart from readily
available evidence in the aftermaths of an incident it may lay hands
upon incriminatory material that may possibly become available
pursuant to disclosures in custody; this has been grievously ignored.
Similarly, an anticipated failure of prosecution, no matter how loudly
clamoured, cannot be received to set its case at naught even before it is
taken off. Failure by the learned Additional Sessions Judge as well as
learned Judge-in-Chamber of the Lahore High Court to give due weight
to the statements of the witnesses and misconceived invocation of
principle of consistency fails to commend our approval. It has been held
in the case of Mst. Qudrat Bibi (2003 SCMR 68) “…….we are of the
opinion that at a stage of admitting to an accused on the bail the Court
should not stamp the prosecution witnesses who have recorded their
statements promptly to be false witnesses….”. Similarly, pre-arrest bail
is not to be used as a substitute or as an alternative for post arrest bail.
See Rana Muhammad Arshad Vs. Muhammad Rafique and another (PLD
2009 S.C. 427).
Admission to pre-arrest bail is a huge concession to an accused,
required to be arrested in a cognizable offence as it exempts him from
remission into custody, irreversibly foreclosing avenues for the
prosecution to possibly secure further evidence, consequent upon
disclosures, therefore, such a relief must only be extended in the face of
considerations proportionately compelling; these are conspicuously
lacking; it is most imperative to keep the scales in balance. Petition is
converted into appeal and allowed. Consequently, order dated
10.12.2020 passed by the Additional Sessions Judge Multan and
upheld by a learned Judge-in-Chamber of the Lahore High Court at
Multan Bench on 22.02.2021 are set aside; pre-arrest bail granted to
the respondents is cancelled.
Judge
Judge
Islamabad, the
17th November, 2021
Azmat/-
|
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|
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Umar Ata Bandial
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.277 of 2020
(Against order dated 18.02.2020
passed by the Islamabad High Court
Islamabad
in
Crl.
Misc.
No.
60-B/2020)
Dr. Atif Muhammad Khan
…Petitioner(s)
Versus
The State through D.A.G. & another
…Respondent(s)
For the Petitioner(s):
Mr. Sajeel Sheryar Swati, ASC
Syed Rifaqat Hussain Shah, AOR
For the State:
Mr. Aamir-ur-Rehman,
Additional Attorney General for Pakistan
along with Qaiser Masood Addl. Director
FIA, M. Salman Deputy Director FIA
Maqsood
Ahmed,
Forensic
Officer,
Humaira Aslam SI, FIA
For the Complainant:
Mr. M. Junaid Akhtar, ASC
Date of hearing:
16.04.2020.
ORDER
Qazi Muhammad Amin Ahmed, J.- Behind bars since
01.01.2020, Dr. Atif Mehmood Khan, petitioner, seeks admission to
bail; member of academia, he is blamed by his former wife Ms. Fozia
Anwar for disseminating her explicit photographs through a WhatsApp
profile, transmitted from a cell phone number issued by a United
Kingdome Service Provider; the pictures accompanied threatening/
abusive messages, circulated among the family members with an
obvious motive to humiliate and embarrass the lady. During
investigation, petitioner led to the recovery of a number of articles,
secured vide inventory dated 02.01.2020 that included a mobile phone
handset along with four SIMs (Subscriber Identity Modules) as well as a
Criminal Petition No.277 of 2020
2
memory card with different IMEI numbers, dispatched to National
Response Center for Cyber Crimes (NR3C), Federation Investigation
Agency Islamabad for digital forensic examination. As per report dated
31.02.2020, paraphernalia recovered during the investigation did not
indicate to have generated the impugned material, on the basis whereof,
the Investigating Officer, vide case diary No.10 dated 12.2.2020,
exonerated the petitioner and accordingly placed him in Column 2 of
the report under Section 173 of the Code of Criminal Procedure 1898.
2.
Heard. Record perused.
3.
Bad blood between the erstwhile spouses though a possible
motive to target the complainant, nonetheless, requires independent
evidence to prima facie frame the petitioner with the charge; forensic
evidence, the only tool to sustain the charge, for the present, is faltering
as the findings recorded by the Federal Investigation Agency are in the
negative. Ch. Aamir-ur-Rehman, learned Additional Attorney General
for Pakistan has very fairly conceded the point. Argument by the
learned counsel for the complainant that the petitioner alone had an
axe to grind, a circumstance by itself sufficient to drive home the
charge, is beside the mark. Petitioner’s culpability, after prosecution’s
failure on forensic side, can best be settled after recording of evidence
and, thus, his incarceration till conclusion thereof, would be
inexpedient. A case for grant of bail stands made out. Criminal Petition
is converted into appeal and allowed; the petitioner shall be released on
bail upon furnishing a bond in the sum of Rs.500,000/- with one surety
in the like amount to the satisfaction of the learned trial Court/Duty
Magistrate.
Judge
Judge
Islamabad, the
16th April, 2020
Not approved for reporting
Azmat/-
|
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|
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Maqbool Baqar
Mr. Justice Mazhar Alam Khan Miankhel
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.280 of 2021
(Against the judgment dated 18.02.2021 passed by the Peshawar
High Court Bannu Bench in B.A. No.49-B/2021)
Muhammad Aurangzeb
…Petitioner(s)
Versus
Karim Khan alias Abdul Karim Khan and others
…Respondent(s)
For the Petitioner(s):
Mr. Rahman Ullah, ASC
Syed Rifaqat Hussain Shah, AOR
For the State:
Ms. Aisha Tasneem, ASC
For the Respondent(s):
Malik Nouman Khalid, ASC with
respondent No.2
Date of Hearing:
02.12.2021.
ORDER
Qazi Muhammad Amin Ahmed, J.- Karim Khan
alias Abdul Karim Khan and Sabir Jan along with co-accused were
arrayed as accused by the petitioner for committing Qatl-i-Amd of his
brother Nematullah at 4:10 p.m. on 17.10.2020 within the precincts of
Police Station Lakki Marwat; armed with Kalashnikovs, the assailants
targeted the deceased in the backdrop of an ongoing blood feud.
Autopsy report confirmed receipt of three entry wounds on different
parts of body with corresponding exit. 46 casings of . 7.62 mm secured
from the spot were forensically opined to have been fired from different
weapons. The Investigating Officer held the respondents as participants
in the crime; their request for bail was declined by the Court of
Sessions, however, a learned Judge-in-Chamber of the Peshawar High
Court Bannu Bench vide impugned order dated 18.02.2021 allowed
them bail on the ground premised as under:-
“There is no denial to the fact that the deceased lost his life
owing to the firearm injuries, which led to a charge against
Criminal Petition No.280 of 2021 2
the petitioners and two others. Record tells that all the
petitioners i.e. four in number are real brothers and that the
complainant stated of having previous blood feud. True that
the petitioners are directly charged but equally true that
two real brothers from one and the same family have been
charged for murder of the deceased and the deceased
received four firearm injuries on his body where two of the
entry wounds are caused on the vital part of his body,
whereas two on non-vital parts. This court is to see as to
whether it was the doing of one or more than one person;
and that despite blood feud enmity the complainant
escaped unhurt when he too was at mercy of the
assailants. True that while seized of bail matter the court is
to tentatively assess the material brought before it and
deeper appreciation of evidence is not warranted, but
equally true that bail applications cannot be heard and
decided in vacuum.”
Vires of the above findings have been assailed as being factually
incorrect as well as self-destructive, as according to the learned
counsel, there existed reasonable grounds within the contemplation of
section 497 of the Code of Criminal Procedure, 1898 to prima facie
frame the respondents with the crime complained, punishable with
death, thus, in the absence of any consideration calling for further
probe, there was no occasion for the High Court to release them on bail
for reasons imaginatively articulated. The learned counsel for the
respondents defended the impugned order being well within the
discretion of the Court. It is next argued that the courts are slow in the
absence of strong and compelling reasons to recall freedom once
granted by a competent tribunal.
2.
Heard. Record perused.
3.
No doubt, grant of bail is a discretionary relief, however, it
is most essential that exercise of discretion is structured upon sound
judicial principles, in conformity with statutory parameters. Prima facie,
prosecution evidence comprising statements of the complainant, eye-
witnesses and autopsy report, squarely constitute “reasonable grounds”
insurmountably barricading respondents’ admission to bail in the
absence of any consideration calling for further probe. We have also
noted different parentage of the accused mentioned in the crime report
to contradict the theory of all brothers in the dock. A conclusion based
upon a wavering analysis with reference to judicial opinions hardly
relevant in circumstances fails to commend our approval.
Criminal Petition No.280 of 2021 3
Grant of bail in disregard to the settled principles of law or on a
premise factually incorrect, by itself, presents a conscionable
justification to recall the concession; it does not require hypothetical or
euphemistic strong grounds as an undue concession grievously
militates against the fundamental principle of equal treatment to the
people placed in identical situations with expectations consistent in
their judicial pursuits. Petition is converted into appeal and allowed;
impugned order dated 18.02.2021 is set aside; bail granted thereunder
is cancelled. Respondents be taken into custody so as to confront their
indictment before the trial Court.
Judge
Judge
Judge
Islamabad, the
2nd December, 2021
Azmat/-
|
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|
IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE IJAZ UL AHSAN
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
CRIMINAL PETITION NO. 287 OF 2022
(On appeal against the order dated 22.02.2022 passed
by the Lahore High Court, Rawalpindi Bench in Crl.
Misc. No. 322-B/2022)
Malik Muhammad Tahir
… Petitioner
VERSUS
The State and another
… Respondents
For the Petitioner:
Mr. Talat Mehmood Zaidi, ASC
For the Respondent (2):
Malik Jawwad Khalid, ASC
For the State:
Mr. Muhammad Jaffer, Addl. P.G. Punjab
Ms. Kainat Azhar, ASP
Mr. Muhammad Asif, I.O.
Date of Hearing:
22.09.2022
ORDER
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through the instant petition under
Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the
petitioner has assailed the order dated 22.02.2022 passed by the learned
Single Judge of the Lahore High Court, Rawalpindi Bench with a prayer to
grant post-arrest bail in case registered vide FIR No. 1314 dated 03.09.2021
under Sections 420/468/471/406/489-F PPC at Police Station Airport,
Rawalpindi, in the interest of safe administration of criminal justice.
2.
The prosecution story as unveiled in the crime report is that the
complainant, an overseas Pakistani, wanted to purchase agricultural land.
The petitioner offered him his land and ultimately an agreement to sell was
executed between the parties. The complainant paid an amount of Rs. 4.40
million through cheque and bank draft to the petitioner. The remaining price
of the land was to be paid through two residential and one commercial plot
situated in Behria Enclave, Islamabad, which were in the name of the
complainant. The complainant got transferred both the residential plots in
the name of the persons suggested by the petitioner. At the time of the said
transfer, the petitioner presented title documents of the agricultural land but
Criminal Petition No. 287/2022
2
eventually took them back. After the complainant got transferred his plots,
the petitioner started using delaying tactics and did not transfer the land in
the name of the complainant. Subsequently, it was disclosed that the
agricultural land is not in the name of the petitioner. The cheque amounting
to Rs.2.60 million issued by the petitioner towards transfer fee was also
dishonoured due to insufficient funds.
3.
At the very outset, it has been contended by the learned
counsel for the petitioner that the petitioner has been falsely roped in this
case against the actual facts and circumstances. Contends that the whole
prosecution case is based on surmises and conjectures. Contends that the
offence does not fall within the prohibitory clause, therefore, the petitioner
is entitled for the concession of bail. Contends that the impugned order is
based on misreading and non-reading of evidence and the learned High Court
misinterpreted the law on the subject. Lastly contends that the accusation
against the petitioner requires further probe, as such, the case against him
squarely falls within the purview of Section 497(2) Cr.P.C. entitling for further
inquiry into his guilt.
4.
On the other hand, learned Law Officer assisted by learned
counsel for the complainant has defended the impugned order declining bail
to the petitioner. It has been contended that the petitioner has deprived the
complainant not only of huge amount but also of two valuable residential
plots, therefore, he does not deserve any leniency from this Court.
5.
We have heard learned counsel for the parties at some length
and have perused the available record.
Precisely stated the allegation against the petitioner is that he
entered into an agreement to sell his immovable agricultural land with the
complainant. The complainant not only paid an amount of Rs.4.40 million to
him but as per the agreed terms, he got transferred two residential plots
situated in Behria Enclave, Islamabad, in the name of the persons suggested
by the petitioner. However, the petitioner did not mutate the land in favour
of the complainant on account of deficiency in title and issued him a cheque
amounting to Rs.2.60 million towards transfer fee but the same could not be
Criminal Petition No. 287/2022
3
encashed and got dishonoured. It has come on the record that during
investigation, it was found that the petitioner did not have any land, which
could be transferred in the name of the complainant. It also transpired that
the petitioner sold two residential plots of the complainant to Masood and
Junaid and received the sale consideration. The evidence also reflects that
the amount of Rs.4.40 million was received by the petitioner in his bank
account. On the previous dates of hearing, the petitioner showed his
willingness to refund the money that he owes to the complainant. Learned
counsel for the petitioner was directed to seek instructions of the petitioner
as to how and when he would refund the money. Ms. Kainat Azhar, ASP, was
also directed to facilitate the settlement. We have been informed that
although the petitioner had promised that as a part payment he would return
Rs.2.0/- million to the complainant but now he is not inclined to return back
the money to the complainant. Although the offences under Section
406/468/489-F PPC do not fall within the prohibitory clause of Section 497
Cr.P.C but this principle is not absolute, rather it depends upon the facts and
circumstances of each case. Admittedly the complainant is an overseas
Pakistani national, who has been deprived of his wealth, hence, it casts a
heavy duty upon the courts to provide him safeguard within the limits of law.
There is sufficient material oral & documentary available on the record to
establish that the case of the petitioner does not fall within the purview of
Section 497(2) Cr.P.C. entitling for further inquiry into his guilt. The learned
High Court has passed a well reasoned order to which no exception can be
taken.
6.
For what has been discussed above, this petition having no
merit is accordingly dismissed and leave to appeal is refused.
JUDGE
JUDGE
Islamabad, the
22nd of September, 2022
Approved For Reporting
Khurram
|
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mushir Alam
Mr. Justice Sardar Tariq Masood
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition Nos.29-Q & 56-Q of 2015 and
Jail Petition No.306/2015 and Cr. P. 30-Q & J.P. No.305 of 2015
(Against judgment dated 25.05.2015 passed by High Court of Balochistan, Quetta passed in Cr.
Appeal Nos.368, 370 & 371/2013)
Abdul Haq & Muhammad Yousaf
(in Cr.P.No.29-Q/2015)
Abdul Ghani
(in Cr.P.No.56-Q/2015)
Wali Muhammad
(in J.P. No.306/2015)
Abdul Haq
(in Cr. P. No.30-Q/2015)
Wali Muhammad
(in J.P. No.305/2015)
…Petitioner(s)
Versus
The State
(in all cases)
…Respondent(s)
For the Petitioner(s):
Mr. Ahsan Rafique Rana, ASC
Mr. Mehmood A. Sheikh, AOR
(in Cr.P.No.29-Q & 30-Q/2015)
Nemo.
(in Cr.P.No.56-Q/2015)
Mr. Abdul Rauf Lahri, ASC
(in J.P. Nos.305 & 305/2015)
For the State
Mr.
Baqar
Shah,
Addl.
Prosecutor
General Balochistan
Date of hearing:
07.11.2019
JUDGMENT
Qazi Muhammad Amin Ahmed, J.
Criminal Petition No.29-Q & Jail Petition No.306/2015: Petitioners
were indicted by the learned Special Judge Anti-Terrorism Court-I,
Quetta for abduction of Abdul Rahim (PW-3) to extort ransom on
1.9.2012 from the precincts of Police Station Satellite Town Quetta; the
Criminal Petition Nos.29-Q & 56-Q of 2015 and Jail Petition No.306/2015 and Cr. P. 30-Q & J.P. No.305 of 2015
2
incident was reported by abductee’s brother Muhammad Ismail (PW-1)
against the unknown culprits. The abductee surfaced on his own after
2/3 days of the occurrence, he implicated the petitioners for the first
time on 8-10-2012 alongside four unknown co-accused, he blamed the
petitioners to have abducted him for the ransom; according to him, he
was enchained at an unspecified place and let off after the captors
snatched Rs.20,000/- along with a cell phone handset and some
revenue papers. Pursuant to the disclosure, the petitioners were
arrested on different dates; nothing incriminatory was recovered during
the course of investigation. Till date prosecution is clueless about the
four unknown accomplices as well as the venue where the abductee was
held under restraint. Petitioners alongside the demised Abdul Ghani
co-accused claimed trial wherein the prosecution produced as many as
12 witnesses, Abdul Rahim (PW-3) being most prominent amongst
them; the learned trial Judge vide judgment dated 11.12.2013 returned
a guilty verdict; convicted under Section 365-A of the Pakistan Penal
Code, 1860 read with section 6(2)(e) of the Anti Terrorism Act, 1997, the
accused were sentenced to imprisonment for life along with fine; their
appeals failed in the High Court vide impugned judgment dated
25.5.2015, vires whereof, are being assailed, primarily on the admitted
previous acquaintance as well as animosity between the petitioners and
the abductee; inherent improbability of the story is another argument
addressed at the bar.
2.
Heard. Record perused.
3.
Abdul Rahim (PW-3), returned home on his own though
with some marks of violence on his wrist and ankle joints, noted when
medically examined as late as on 7-10-2012; in his statement under
section 161 Cr.P.C. recorded on the following day, he disclosed to the
Investigating Officer that he was let off 3/4 days before his return; in
his statement before a Magistrate on 9-10-2012, he is conspicuous by
his omission on the date of his return. In this background,
prosecution’s reliance on the injuries endured by the abductee,
allegedly during his captivity fades into insignificance, particularly in
the absence of duration thereof in the medico legal certificate.
Complainant (PW-1) in the witness-box did not point his finger on the
petitioners; being a real brother of the abductee, he was expected to
bring on record the information subsequently shared with him by his
brother.
The abductee massively improved upon his previous
Criminal Petition Nos.29-Q & 56-Q of 2015 and Jail Petition No.306/2015 and Cr. P. 30-Q & J.P. No.305 of 2015
3
statements; he was duly confronted with his deviations; he also
admitted his acquaintance with Abdul Haq petitioner, his co-villager
while evasively avoiding a query regarding pendency of different civil
and criminal cases instituted by Abdul Ghani petitioner against him as
well as his brother. Similarly, in his examination-in-chief, the abductee
did not name Muhammad Yousaf petitioner as being one of the culprits;
while denying litigation between the two families, he however, admitted
that both the petitioners, real brothers inter se, lived in the same
neighbourhood. In this backdrop, no importance can be attached to the
identification parade, conducted under magisterial supervision. In the
totality of circumstances, the prosecution case is not free from doubt,
doubts
deducible
from
stated
prosecution
positions,
otherwise
inherently improbable. Petitioners’ convictions and life time sentences
consequent thereupon cannot be sustained merely on the basis of some
superficial healed wounds, genesis whereof is also shrouded in the
mystery of time and space. Petitions are converted into appeals;
allowed; impugned judgment is set aside. The petitioners/appellants are
acquitted of the charge; they shall be released forthwith, if not required
in any other case.
Criminal Petition No.56-Q of 2015: With the death of Abdul Ghani
petitioner, his petition stands fructified, leaving in field no adverse
consequences to the detriment of his legal heirs. Dismissed accordingly.
Criminal Petition 30-Q & Jail Petition No.305 of 2015: The petitions
arisen out of a different criminal case, clubbed inadvertently with Cr. P.
No.29-Q & J.P. No.306 of 2015 are de-clubbed for the re-list.
Judge
Judge
Judge
Islamabad
7th November, 2019
Not approved for reporting
Azmat/-
|
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mushir Alam
Mr. Justice Qazi Muhammad Amin Ahmed
Mr. Justice Amin-ud-Din Khan
Criminal Petition No.290 of 2020
(Against the judgment dated 28.2.2020 of the
Peshawar High Court, Peshawar passed in Cr.
Revision No.200-P of 2019)
Muhammad Uzair Jamal
…Petitioner(s)
Versus
The State and another
Respondent(s)
For the Petitioner(s):
Syed Asghar Hussain Shah Sabzwari
Mr. Mehmood A. Sheikh, AOR
For the State:
Mr. Arshad Hussain Yousafzai, ASC
Date of hearing:
22.07.2020.
ORDER
Qai Muhammad Amin Ahmed, J.- Ms. Gulalay, 27/28, a
student of M.Phil, was shot dead inside the safety of her home located
within the precincts of Police Station Cantt. Nowshera at 3:45 p.m. on
2.2.2019 in a family function, scheduled to fix her marriage date; incident
was reported by Ashfaq Ahmed Khan who accused the petitioner for the
crime. According to the complainant, the petitioner aspired to marry the
deceased, already betrothed and it was in this background that he on the
fateful day murdered the young lady within the view of the witnesses; he
was subdued by the attendants and produced before the police along with
the weapon of offence. Autopsy was conducted same day at 4:40 p.m. and
the Medical Officer observed no less than seven entry wounds on different
parts of the body. The petitioner was sent to face trial before an Additional
Sessions Judge at Nowshera; he moved an application on 8.5.2019,
purportedly under section 465 of the Code of Criminal Procedure 1898
wherein he took the following grounds:
2. “That, the accused/petitioner is suffering
from different mental ailments from the last
so many years.
Criminal Petition No.290 of 2020
2
3. That the accused/petitioner has remained
patient of various doctors and in this connect,
also remained admitted in hospitals.
4. That, the accused/petitioner after remanding
to the judicial lock up is lodged in the mental
hospital
at
Peshawar
Prison,
being
dangerous for the life of others and is still
there. (Copy of doctor prescription and
certificate attached.
5. That
the
accused/petitioner
in
such
circumstances is unable to defend himself
within the parameter of the law during the
course of trial.”
Pursuant to the above pleas, opinion from the Jail Doctor was solicited
vide order dated 27.5.2019 whereupon Senior Medical Officer, Central
Prisons Peshawar, furnished the opinion dated 11.06.2019, reproduced
below:
“It is submitted that the above named
accused was shifted from Judicial Lockup
Nowshera
on
23.2.2019
for
Psychiatry
treatment. He was admitted in Detain
Unit/Psychiatry Wards for observation of
Psychiatrist on the same day.
He
was
under
the
observation
of
Psychiatrist Dr. Muslim District Specialist
Psychiatrist
w.e.f.
23.2.2019.
He
was
diagnosed as a case of Depressive illness
and advised Tab Prothadine 75 mg one at
nigh daily. He was examined by concerned
Psychiatrist
Dr.
Muhammad
Tariq
on
30.5.2019 with the remarks that the accused
may please be shifted back to Nowshera Jail
as there is no Court Letter regarding his
treatment/Standing Medical Board Report.”
The learned Additional Sessions Judge declined the motion vide order
dated 6.9.2019, impugned before the Peshawar High Court through a
revision petition with no better outcome on 28.2.2020, vires whereof, are
being assailed primarily on the ground that the petitioner, undergoing
psychiatric trauma, was neither cognizant of the consequences of his act
nor he can properly defend himself during the trial on account of ongoing
terminality of his mental disorder. It was further prayed that in view of
inconclusive nature of earlier report, dismissal of petitioner’s plea is likely
to result into miscarriage of justice, warranting interference by this Court.
The learned Law Officer faithfully defended the impugned judgment.
2.
Heard. Record perused.
3.
Certainly it is for the trial Court to settle the question of
petitioner’s innocence or guilt on the strength of evidence with all available
procedural safeguards, nonetheless, for the limited purpose of examination
Criminal Petition No.290 of 2020
3
of his plea raised before us, available material irrefutably suggests
homicidal death of a young lady in her prime youth, assassinated inside
her parental dwelling with repeated fire shots, seven in number, with an
offensive/lethal weapon, on an occasion, most important in her life; this
unmistakably evinces a design to eliminate her with no chance of survival;
given the occasion/gathering, she being the sole target to the exclusion of
others, additionally indicates that the assassin had a preconceived/
premeditated target and a purpose that he flawlessly achieved in a short
span of time without any bullet left in the chamber. It would be rather
naive to expect such a meticulous execution from a person with frail
faculties or capacities without inflicting slightest harm to his own person
or anyone else present at the venue; he appears to have done it most
craftily. It is also a common ground that the petitioner and the deceased
studied together in the same university and, thus, former’s inclination for
a bond, a suggested motive for the crime, is a possibility that cannot be
viewed
as
being
unrealistic;
deceased’s
engagement
standing
in
impediment thereto. While the petitioner was certainly entitled to his
obsessions and ideals; he had no right to enforce his wish through a
method, most violent; he fully well knew that he couldn’t tie knot with a
corpse and the sole purpose of the deadly assault appears to be
chauvinistically motivated to deny the deceased a life of her own choice, a
trend unfortunately not uncommon in our society.
5.
In the above backdrop, we have examined entire record
annexed with the present petition to evaluate petitioner’s acclaimed mental
incapacity. According to Psychiatrist report, the petitioner after having
been kept under observation from 23.2.2019 onward, was diagnosed as a
case of “Depressive Illness” and prescribed “Tab. Prothadine 75 mg” one at
night. Depression is a natural concomitance of the crime and one may
hardly find a prisoner facing corporal consequences, possibly the gallows
to stay unperturbed; it is a state of mind primarily governed by a variety of
factors including fear, regret or remorse; such inevitable disequilibriums
are not recognized by law to hold the process of justice in abeyance. An
offender can claim immunity from prosecution on the basis of unsound
mind if at the time of commission thereof, he by reason of unsoundness of
mind, was incapable of knowing the nature of the act or lacked knowledge
on account thereof about its being wrong or contrary to law (See section 84
of the Pakistan Penal Code, 1860) and in so asserting he has to be clear
and categorical in his claim. By raising such a plea, an offender takes
Criminal Petition No.290 of 2020
4
upon himself the responsibility to discharge the onus and in the event of
his failure, the Court would draw a contra presumption. It has not been
petitioner’s plea in his application dated 8.5.2019 before the learned trial
Court. Without taking plea of unsound mind and by referring to some
unspecified “different mental ailments” asserted that he was unable to
defend himself. For determination of such a claim, an accused may be
examined “by the Civil Surgeon of the District or such other medical officer
as the Provincial Government directs…..”. Part VIII Chapter XXXIV Special
Proceedings recognizes only dangerous or incapacitating lunacy to
suspend the trial and take measures provided thereunder. “Depressive
Illness” is not a disease or incapacity recognized by law as a justification to
deny justice to the victims of crimes or their families nor does it allow
digging out of acclaimed incapacity by a Physician of offender’s own choice,
other than the designated medical officers. View taken by the learned trial
Judge, upheld by the learned High Court, being well within the remit of
law, calls for no interference. The above observations, being issue specific,
shall not cast their shadow upon the outcome of the trial, to be essentially
settled under Due Process of Law on the strength of evidence alone.
Petition fails. Leave declined.
Judge
Judge
Judge
Islamabad, the
22nd July, 2020
Not approved for reporting
Azmat/-
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
MR. JUSTICE JAMAL KHAN MANDOKHAIL
CRIMINAL PETITION NO. 294-L OF 2023
(On appeal against the order dated 01.03.2023 passed
by the Lahore High Court, Lahore in Crl. Misc. No.
80579-B/2022)
Abdul Rasheed
… Petitioner
Versus
The State and another
…Respondent(s)
For the Petitioner:
Mr.
Muhammad
Zubair
Khalid,
ASC
a/w
petitioner in person
(Via video link from Lahore)
For the Complainant:
Mr. Aftab Alam Yasir, ASC
Syed Rifaqat Hussain Shah, AOR
For the State:
Mirza Abid Majeed, DPG
Mr. Murtaza Bilal, SI
Date of Hearing:
24.08.2023
JUDGMENT
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through the instant petition under
Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the
petitioner has assailed the order dated 01.03.2023 passed by the learned
Lahore High Court, Lahore, with a prayer to grant pre-arrest bail in case
registered vide FIR No. 3420/2022 dated 21.10.2022 under Section 489-F PPC
at Police Station Shadbagh, District Lahore, in the interest of safe
administration of criminal justice.
2.
Briefly stated the allegation against the petitioner is that he
bought iron worth Rs.47,00,000/- from the complainant for which he gave two
cheques amounting to Rs.500,000/- each to the complainant. However, when
the cheques were presented to the Bank, they were dishonoured.
3.
At the very outset, it has been argued by learned counsel for the
petitioner that the petitioner has been falsely roped in this case against the
Criminal Petition No. 294-L/2023
-: 2 :-
actual facts and circumstances. Contends that the petitioner and the
complainant were running a joint business and the cheques were not issued
towards repayment of loan or fulfillment of an obligation. Contends that
maximum punishment provided under the statute for the offence under
Section 489-F PPC is three years and the same does not fall within the
prohibitory clause of Section 497 Cr.P.C., therefore, the petitioner deserves to
be granted bail.
4.
On the other hand, learned Law Officer assisted by learned
counsel for the complainant has defended the impugned order declining bail
to the petitioner. It has been contended that the petitioner has deprived the
complainant of a huge amount and he remained absconder for 02 years,
therefore, he does not deserve any leniency from this Court.
5.
We have heard learned counsel for the parties at some length
and have perused the available record with their assistance.
6.
As per the contents of the crime report, the complainant was an
iron merchant. The petitioner purchased iron worth Rs.47,00,000/- from the
complainant and gave two cheques amounting to Rs.500,000/- each to him.
However, when the cheques were presented to the Bank, they were
dishonoured. However, it is the stance of the petitioner that the petitioner
and the complainant had started a business and the cheques in question were
given as a guarantee and the same were not issued towards repayment of loan
or fulfillment of an obligation within the meaning of Section 489-F PPC. The
petitioner has placed on record a copy of the suit for rendition of accounts
filed by him against the defendant before the Civil Court. A bare perusal of the
same shows that the parties were probably running a business and the
cheques were given as a surety and the same were not meant for
enacashment. We have noted that the cheques in question are of the year
2019 and according to the crime report the same were dishnoured in the year
2019. If that be so, we are unable to understand as to why the complainant
kept quite for three years and did not lodge the FIR on time. This prima facie
supports the stance taken by the petitioner. Even otherwise, even if the
complainant wants to recover his money, Section 489-F of PPC is not a
Criminal Petition No. 294-L/2023
-: 3 :-
provision which is intended by the Legislature to be used for recovery of an
alleged amount. In view of the above, the question whether the cheques were
issued towards repayment of loan or fulfillment of an obligation within the
meaning of Section 489-F PPC is a question, which would be resolved by the
learned Trial Court after recording of evidence. The maximum punishment
provided under the statute for the offence under Section 489-F PPC is three
years and the same does not fall within the prohibitory clause of Section 497
Cr.P.C. It is settled law that grant of bail in the offences not falling within the
prohibitory clause is a rule and refusal is an exception. This Court in a number
of cases has held that liberty of a person is a precious right which cannot be
taken away without exceptional foundations. We have been informed that all
the material is in documentary shape; the investigation is complete and the
petitioner is no more required for further investigation. So far as the argument
of the learned Law Officer about the absconsion of the petitioner is concerned,
it is settled law that absconsion cannot be viewed as a proof for the offence
and the same alone cannot be made a ground to discard the relief sought for.
Reliance is placed on Rasool Muhammad Vs. Asal Muhammad (PLJ 1995 SC
477) & Muhammad Tasaweer Vs. Hafiz Zulkarnain (PLD 2009 SC 53). Taking
into consideration all the facts and circumstances stated above, we are of the
view that the petitioner has made out a prima facie case for grant of pre-arrest
bail.
7.
For what has been discussed above, we convert this petition into
appeal, allow it, set aside the impugned order and confirm the ad interim pre-
arrest bail granted to the petitioner by this Court vide order dated 26.07.2023.
JUDGE
JUDGE
Islamabad, the
24th of August, 2023
Approved For Reporting
Khurram
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Gulzar Ahmed, HCJ
Mr. Justice Umar Ata Bandial
Mr. Justice Mazhar Alam Khan Miankhel
Mr. Justice Sajjad Ali Shah
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.299 of 2020
(Against the order dated 20.3.2020
passed by the Islamabad High Court
Islamabad in Cr. Misc. No.214/2020)
Raja Muhammad Nadeem
…Petitioner(s)
Versus
The State and another
…Respondent(s)
For the Petitioner:
Syed Nayyab Hassan Gardezi, ASC
Syed Rifaqat Hussain Shah, AOR along
with petitioner
For the Federation:
Mr. Khalid Javed Khan,
Attorney General for Pakistan
Mr. Sohail Mehmood,
Deputy Attorney General
Ms. Shireen M. Mazari,
Minister for Human Rights
Dr. Safi Muhammad Mali, D.G. Health
M/o N.H.S.
Saeed Ullah Khan Niazi, Joint Secretary
(Admn.)
Asif Suhail, Director Legal
Khalid Mehmood, Deputy Secretary,
Ministry of Interior
Nisar Ahmed, Section Officer
For Islamabad Capital
Mr. Niaz Ullah Khan Niazi, Advocate
Territory
General
Mr. Amer Ali Ahmed,
Chief Commissioner
Mr. Hamza Shafqaat,
Deputy Commissioner
Waseem Ahmed Khan,
Assistant Deputy Commissioner
Waqar ud Din Syed, D.I.G. (Operations)
Azhar Hussain Shah, DSP (Legal)
For Government
Mr. Salman Talibudin, Advocate General
of Sindh (via video link):
Mr. Sibtain Mehmood, Addl.A.G.
Dr. Fayyaz Ul Hassan Shah, PG
Mr. Muhammad Usman Chachar, ACS (Home)
Mr. Nusrat Mengan, I.G (Prisons)
Mr. Zahid Abbasi, Secretary Health
Criminal Petition No.299 of 2020
2
For Government
Mr. Shan Gul, Advocate General
of Punjab:
Ch. Faisal Fareed
Additional Advocate General
Mr. Ahmed Raza Gillani,
Additional Prosecutor General
Mirza Shahid Saleem Baig, I.G. (Prisons)
Malik Shaukat Feroz, D.I.G. (Prisons),
Rawalpindi Region
Rana Zeeshan,
Additional Secretary (Prisons)
Muhammad Zaman, D.S.P. (Prisons)
Saqib Nazir, Superintendent Adyala Jail
Tahir Siddique,
Assistant Superintendent Adyala Jail
Amir Bashir,
Assistant Superintendent Adyala Jail
Majid Iqbal, Additional Secretary Punjab
Iqbal Hussain,
Special Secretary Home Punjab
Adnan Yousaf, Sr. Law Officer
Mr. Arif Kamal Noor,
Prosecutor General Punjab
(via video link from Lahore Branch Registry)
For Government of
Mr. Shumail Butt, Advocate General
K.P.K.
(via video link from Peshawar Branch Registry)
Khuda Bakhsh, Special Secretary Health
Dr. Shaheen Afridi,
Additional Director General, Health
Masood ur Rehman,
Inspector General (Prisons)
Ikram Ullah Khan, Home Secretary
(all appeared via video link from Peshawar
Branch Registry)
For Government of
Mr. Arbab Muhammad Tahir,
Balochistan
Advocate General
(via video link from Quetta Branch Registry)
Mr. Ayaz Khan Swati,
Additional Advocate General Punjab
Capt. (Retd.)Zafar Tahir Abbasi,
Special Secretary Health
Malik Yousaf, Inspector General (Prisons)
Hameed Ullah Pechi, A.I.G. Prisons
Niamat Ullah Khan Battazai,
Prosecutor General
Mushtaq Qazi,
Additional Prosecutor General
Abdul Lateef Kakar,
Additional Prosecutor General
(all appeared via video link from Quetta Branch
Registry)
Syed Baqar Shah, State Counsel.
For Government
Mr. Muhammad Iqbal, Advocate General
of Gilgit-Baltistan
Capt. (R) Ali Asghar,
Inspector General (Prisons)
Criminal Petition No.299 of 2020
3
For N.A.B.
Mr. Muhammad Hassan Akbar,
Additional Prosecutor General
For A.N.F.
Raja Inaam Amin Minhas,
Special Prosecutor
Amicus Curiae
Sh. Zameer Hussain, ASC
From S.C.B.A.P.
Syed Qalb-e-Hassan, ASC/President
From P.B.C.
Mr. Zulfiqar Abbas Naqvi, ASC/Member
Mr. Muhammad Akram Khaksar, V.C.
From P.H.C.B.A.
Mr. Abdul Latif Afridi, ASC/President
In C.M.A. 399/2020
Mr. Amjad Raza Bhatti, ASC
In C.M.A. 406/2020
In person
In C.M.A. 414/2020
Mr. Talat Mehmood Zaidi, ASC
In C.M.A. 415/2020
Mr. Hashmat Ali Habib, ASC
In C.M.A. 417/2020
Khawaja Haris Ahmed, Sr. ASC
Mr. Munawar Iqbal Duggal, ASC
Date of hearing:
07.04.2020.
ORDER
Qazi Muhammad Amin Ahmed, J.-
A
severe/acute
respiratory syndrome is modern day reminder of past calamities,
endured by the mankind; identified as Corona Virus disease 2019
(Covid-19), erupted in December 2019 in the Chinese City of Wohan,
Metropolis of Hubai Province; it took humanity by surprise across the
globe through human movement with no available treatment; the World
Health Organization swiftly declared the disease as “Pandemic”; highly
infectious, it attacks respiratory system with fallouts on vital organs;
inbuilt immune system is the only defence against the disease with toll
of the vulnerable, even in countries equipped with best health care
system has been phenomenally high; no respite is within sight; isolation
and dispersions of individuals are the suggested defences. It is in this
backdrop that various High Courts in the country, Islamabad High
Court being on the top, passed omnibus orders for the release of
accused/convicts, lodged in different prisons, an issue taken up by the
Court in the captioned petition filed by Raja Muhammad Nadeem, as
“Pro bono Publico”.
2.
Islamabad High Court Islamabad, assuming jurisdiction in
Crl. Misc. No.214/2020 titled as The State Vs. District Administration,
vide impugned order dated 20.3.2020 issued the following directions:-
a)
The under trial prisoners alleged to have committed
offences falling within the ambit of the non-prohibitory
clause are admitted to bail, subject to furnishing such
surety or security as may be deemed appropriate by an
Criminal Petition No.299 of 2020
4
officer
authorized
in
this
regard
by
the
Deputy
Commissioner, Islamabad Capital Territory. The latter in
consultation with the concerned incharge of Police Station
shall ensure that the release on bail will not pose threat to
public safety. They will endeavor to facilitate release of
prisoners. It is clarified that this order is confined to those
prisoners who’s cases are pending before courts and
related to police stations under jurisdiction of the Islamabad
High Court. It is further clarified that this order shall also
cover those cases in which bail has been refused because
the declaration of emergency and the prevention of
outbreak of corona virus is definitely a fresh ground.
b)
Before releasing a prisoner, proper screening shall be
conducted by authorized officials nominated by the Ministry
of National Health Services and Coordination, Government
of Pakistan or the Director General (Health), Government of
Pakistan, as the case may be. The officials shall also
ensure screening of fresh admittance.
c)
The learned District and Sessions Judge (West), Islamabad
shall nominate learned Judicial Officers to facilitate and
guide the Deputy Commissioner in processing the cases
pursuant to this order.
d)
Since time is of essence, therefore, this Court expects that
the exercise pursuant to this order shall be completed at the
earliest, preferably before 24-03-2020 and report submitted
to the Registrar of this Court
e)
The
Inspector
General
of
Police
and
the
Deputy
Commissioner, Islamabad Capital Territory shall ensure
that unnecessary arrests are not made by the Investigating
Officers having regard to the law laid down by the august
Supreme Court in the cases titled ‘Muhammad Bashir v.
Station House officer, Okara Cantt and others’ (PLD 2007
SC 530) and ‘Mst. Sughran Bibi v. The State’ (PLD 2018 SC
595).
f)
The Deputy Commissioner, Islamabad Capital Territory
shall identify such prisoners who are eligible to be
considered for release under the Prison Rules, the Probation
of Offenders Ordinance, 1960 and section 410(1) of the
Cr.P.C. After identifying the eligible prisoners, their
respective cases shall be processed under the relevant
laws.
Pursuant to the above directions, 292 prisoners were released
overnight.
3.
Release of 519 prisoners in the Province of Sindh has been
far more astounding; pursuant to some verbal direction, genesis
whereof is a mystery, except the following press release dated
26.3.2020, issued by the Registrar of the High Court of Sindh:-
“It is to inform that considering the present scenario of spreading of
pandemic Coronavirus, on the direction of Hon’ble Chief Justice,
Mr. Justice Ahmed Ali M. Shaikh, 829 UTPs have been released
from the jails of Province of Sindh by the District Courts in the
cases of lesser punishment.”
In pursuance whereof, Sessions Judges of the Province submitted
reports regarding release of prisoners on the basis of lists tabulated by
the Magistrates same day.
4.
Lahore High Court Lahore followed the suit in W.P.
No.1648/2020 titled as Bar Association Bahawalpur Vs. Federation of
Criminal Petition No.299 of 2020
5
Pakistan & others, albeit cautiously; it issued the following the
direction:-
g)
As regards, the prisoners confined because of non-payment
of amounts of fine, diyat or daman, this court has been
informed that all possible steps will be taken for fulfillment
of their obligations by generating funds either from Bait-ul-
Mall or inviting the financial sound persons to come in aid.
So far as the persons undergoing civil prisons are
concerned, the authorities shall move applications to the
concerned courts, under whose orders they were put behind
the bars, and those courts will decide whether their earlier
order can be reviewed in prevalent unprecedented
circumstances, or not;
Injunctive order issued by this Court on 30.3.2020 closed the
floodgates; none was released either in the Province of Punjab or
Khyber Pakhtunkhwa Province.
5.
It is argued that there was no occasion for the High Court
to direct wholesale release of the prisoners; no petition seeking bail was
posted before the Court; no notice was issued either to the State or to
the complainant/victim of crimes and above all no jurisdiction vested in
the Court to circumvent normal statutory procedures regulating release
of accused/convicts on bail; the entire exercise was alien to law and
cannot be countenanced on the fears of an impending calamity to the
detriment of principle of trichotomy of power enshrined under the
Constitution, concluded the learned counsel. Learned Advocate
General, ICT, Islamabad though present before the Islamabad High
Court during the hearings has, nonetheless, opted to abandon his
support for the impugned order. Syed Qalb-e-Hassan, Sr.ASC,
President, Supreme Court Bar Association of Pakistan while expressing
concerns for the safety of prisoners has urged the Court to be benign
upon the prisoners placed in vulnerable groups; he has requested for
issuance of a direction for screening of prisoners, particularly the new
entrants with a view to arrest spread of the disease. The learned
Attorney General for Pakistan, after highlighting various steps taken by
the Government to combat the menace, has suggested following
recommendations for release of the prisoners:-
U.T.P.’s
“Accused persons charged for offences under non-prohibitory
clauses or under vagrancy law or offences carrying less than three
years sentence may be considered for bail subject to the following:-
(a)
the benefit shall not extend in cases involving abuse/violent
acts against children and women.
(b)
benefit shall first be extended to persons otherwise
suffering from ailments or physical or mental disability.
(c)
benefit shall be extended to UTPs who are 55 years of age
or older and then other male UTPs provided there is no
history of past convictions.
Criminal Petition No.299 of 2020
6
(d)
benefit shall be extended to all women/juvenile UTPs.
Bail in the above cases may be extended on personal bond.
CONVICTED PERSONS
The following categories of convicted persons may be considered
for release by the Provincial Governments under Section 401
Cr.P.C.:
(a)
Convicts who have otherwise completed their sentences but
remain in jail on account of non-payment of fine/monetary
penalty;
(b)
Women/juvenile convicts who have completed 75% of their
sentence and have no history of past convictions;
(c)
Convicts whose remaining term in jail is six months or less
provided offence was not violence against women or
children;
(d)
Women/juvenile who were sentenced to a term of one year
or less.”
He surveyed the case law to argue that suo motu jurisdiction under the
Constitution was not available to the High Court nor it could press into
service the provisions of Section 561-A of the Code of Criminal
Procedure 1898 to issue the impugned directions. Advocate Generals of
all the Provinces joined the Attorney General for Pakistan to support
recommendations laid by him before the Court.
6.
Heard.
7.
Being part of the global village, we are passing through
difficult times, the pandemic is taking its toll on all spheres and walks
of life; safe custody of prisoners is also facing challenges hitherto
unknown, however, methods and means to manage the crises have to
be essentially explored within a legal framework of statutory and
judicial dispensation that amicably withstood the test of the times,
therefore, the vires of the impugned actions is to be essentially
examined and adjudged on legal touchstone. Article 175(2) of the
Constitution of the Islamic Republic of Pakistan, 1973 provides as
under:-
“No court shall have any jurisdiction save as is or may be conferred
on it by the Constitution or by under any law.”
A High Court may possibly release an accused who is arrested or
detained without warrant if he appears or brought before the Court,
however, he shall not be so released if there appears reasonable
grounds for believing that he has been guilty of an offence punishable
with death, imprisonment for life or imprisonment for ten years,
provided further that he shall not be released unless the prosecution
has been given a notice to show cause as to why he should not be so
released; what is unmistakably clear, that High Court would exercise
Criminal Petition No.299 of 2020
7
such power after notice to the prosecution, that too, on case to case
basis having regard to the facts and circumstances of each. This
provision of law has an inbuilt mechanism for release of a woman,
underage accused or a sick or infirm person. Similarly, there is a
mechanism for release of convicts through suspension of execution of
their sentences; there is no concept of en bloc omnibus release of
prisoners on the basis of declaration of health emergency issued by the
World Health Organization in a context altogether different. Advisory by
the international organizations to its member states is to be routed
through Foreign Office; no such advisory calling upon the member
states to empty their prisons has been issued; the impugned order is
structured upon a misdirected premises.
Argument that our overcrowded prisons could be a breeding
ground for the deadly virus is beside the mark. Barring few countries
with low crime rates, most prisons in the world are overcrowded. An
overcrowded prison, though an inconvenient abode, nonetheless,
without a contaminated inmate is a safe place; instead of releasing
them all, it is more expedient to screen the each after plugging the new
entrants. Jail Rules laid down procedures to deal with epidemics and
contiguous diseases, in particular, section 7 of the Prisoners Act, 1900
provides complete mechanism to deal with a situation like one in hand:-
“7.
Temporary accommodation for prisoners.—Whenever it
appears to the (Director of Prisons) that the number of prisoners in
any prison is greater than can conveniently or safely be kept
therein, and it is not convenient to transfer the excess number to
some other prison,
Or whenever from the outbreak of epidemic disease within
any prison, or for any other reason, it is desirable to provide for the
temporary shelter and safe custody of any prisoners,
provision shall be made, by such officer and in such
manner as the (Provincial Government) may direct, for the shelter
and safe custody in temporary prisons of so many of the prisoners
as cannot be conveniently or safely kept in the prison.”
8.
There was no juridical basis for the High Court to
undertake an extensive exercise in a criminal miscellaneous application
to issue directions impinging upon the whole spectrum of social life;
292 prisoners involved in different offences is quite a number; their
abrupt release is far from being expedient for maintenance of law and
order in their neighborhoods; impact could be graver in the Province of
Sindh; the High Court certainly lacked jurisdiction to invoke provisions
of section 561-A of the Code ibid, object and scope whereof was clearly
laid down way back in the year 1945 by the Privy Council in the case of
Criminal Petition No.299 of 2020
8
Emperor Vs. Khawaja Nazeer Ahmed (AIR (32) 1945 Privy Council 18);
in the said case, High Court’s interference with an investigative process,
purportedly in exercise of powers under section 561-A ibid was held as
ultra vires, a view subsequently followed by this Court in the cases of
Shahnaz Begum v. The Hon’ble Judges of the High Court of Sind and
Balochistan and another (PLD 1971 SC 677) and Nazir Ahmed & others
Vs. Muhammad Shafi & another (PLD 1980 SC 6). The law is more
vividly expounded in the case of Muhammad Ali Vs. Additional I.G.
Faisalabad (PLD 2014 SC 753):-
“The law is quite settled by now that the jurisdiction of a High
Court under section 561-A, Cr.P.C. can be exercised only in respect
of orders or proceedings of a court and that the provisions of
section 561-A, Cr.P.C. have no application vis-à-vis executive or
administrative orders or proceedings of any non-judicial forum or
authority.”
The plain language of section 561-A Cr.P.C. and the law declared by
this Court unambiguously settles that provisions of the said section
cannot be invoked to interfere, interrupt or divert procedural courses
provided under the law nor it can be applied as a substitute for
remedies otherwise available under the Statute.
9.
On the higher plane, High Court had no jurisdiction under
the Constitution to take up the issue suo motu. Article 199 of the
Constitution envisages an aggrieved person; there was none before the
Court besides the bar of alternate remedy. It has been held by this
Court in the case of Dr. Imran Khattak and another Vs. Mst. Sofia Waqar
Khattak, PSO to the Chief Justice and others (2014 SCMR 122), as
follows:-
“………..…It be noted that no Judge of a High Court or the supreme
Court is robed, crowned and sceptered as a King to do whatever
suits his whim and caprice. In all eventualities, he is bound to
abide
by
and
adhere
to
the
law
and
the
Constitution
.………………..It thus follows that the framers of the Constitution of
1962 and those of 1973, inasmuch as it can be gathered from the
words used in Article 98 of the former and Article 199 of the latter,
never intended to confer Suo Motu jurisdiction on a High Court.
Had they intended, they would have conferred it in clear terms as
the framers of the Code of Civil Procedure under its provision
contained in section 115 have conferred it on the High Court and
the District Judge and the frames of the code of Criminal Procedure
under its provisions contained in section 439 and 439-A have
conferred it on the High Court and the sessions Judge respectively.
Article 175(2) of the Constitution leaves no ambiguity by providing
that “no Court shall have jurisdiction, save as is or may be
conferred on it by the Constitution or by or under any law”. We
would be offending the very words used in the Article by reading
exercise of Suo Motu jurisdiction in it which cannot be read even if
we stretch them to any extreme. It has been settled as far back as
in 1916 in the case of Tricomdas Cooverji Bhoja v. Sri Gopingath
Jui Thakur” (AIR 1916 Privy Council (sic)), that where the
Criminal Petition No.299 of 2020
9
meanings of a provision are clear, unequivocal and incapable of
more than one interpretation, even a long and uniform course of
interpretation, if any, may be overruled, if it is contrary to its
meanings. We have, therefore, no hesitation to hold that the High
Court could not exercise Suo Motu jurisdiction under Article 199 of
the Constitution of Pakistan. The more so when we have noticed
that such jurisdiction has stridently been used even in the matters
which are clearly and squarely outside the jurisdiction of a High
Court.”
With the exclusion of above powers, nothing is left in the field to sustain
the impugned directions. Release of prisoners in the Province of Sindh,
pursuant to a verbal direction, is even more disquieting.
10.
Concomitant fears, aggravated by fast expanding contagion
would susceptibly admit perceptional acceptance of the impugned
arrangements but the law must not be a casualty even in most extreme
or adversarial situations; it must reign supreme and the Government in
the given legal framework must strive hard to combat the menace; the
Court would not be swayed by popular themes. “Judges rule on the
basis of law, not public opinion, and they should be totally indifferent to
the pressures of the times” (Warren Earl Burger, 15th Chief Justice of the
United States, 1969-1986). Sheikh Zameer Hussain, learned Sr.ASC,
amicus curiae, has rendered us valuable assistance; he opined the
impugned directions as ultra vires, referred to Selected Writings of
Justice HR Khanna, edited by Dr. Lokendra Malik, a portion whereof is
reproduced, hereunder:-
“The need to foster a climate of discipline and adherence to
democratic values cannot be overemphasized if we want to
preserve and given long life to civil liberties and human rights.
Freedoms guaranteed by Constitution cannot be absolute. They
have to be subject to reasonable restrictions for the sake of their
own survival.”
11.
In the peculiar facts and circumstances of the case, we
consider it expedient to convert this petition into one under Article 184
(3) of the Constitution and in exercise of powers vesting in the Court
under Article 187 thereof set aside the impugned directions issued by
the Islamabad High Court as well as High Court of Sindh; bails granted
to the accused/convicts, thereunder, are re-called; similarly, order
dated 24.3.2020 passed by the Islamabad High Court in Crl. Misc.
No.238/2020 granting bail to the accused charged under various
provisions of the Control of Narcotic Substances Act, 1997 is also set
aside and bails granted thereunder are re-called. Likewise, order dated
26.3.2020 passed in W.P. No.985 of 2020 by the said Court, granting
Criminal Petition No.299 of 2020
10
bails to the accused involved in NAB cases is set aside and bails
granted thereunder are re-called. Steps purportedly taken in exercise of
powers under Section 401 of the Code ibid by the Government of Sindh
as well as Khyber Pakhtunkhwa are also declared as without lawful
authority, without jurisdiction and of no legal effects. Prisoners released
in pursuance to the above mentioned orders are directed to be taken
into custody except those falling within the categories suggested by the
learned Attorney General for Pakistan with the concurrence of Advocate
Generals of the Provinces. These categories we approve for conforming
the considerations laid down by the law discussed above. Observations
made hereinabove shall not cast their shadow on pending or future
legal pursuits. Larger issue of combating the Pandemic shall remain
pending.
Chief Justice
Judge
Judge
Judge
Judge
Islamabad, the
7th April, 2020
Approved for reporting
Azmat/-
|
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|
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mazhar Alam Khan Miankhel
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.30-P/2012
(Against the judgment dated 22.2.2012 of the Peshawar High Court
Peshawar passed in Cr. A.No.351 of 2011)
The State through Director ANF
…Petitioner(s)
Versus
Khurshid Khan
…Respondent(s)
For the Petitioner(s):
Mr. Muhammad Tariq Shah,
Special Prosecutor ANF
For the Respondent(s):
N.R.
Date of hearing:
28.6.2021
ORDER
Qazi Muhammad Amin Ahmed, J.- Tried by a Special
Judge at Peshawar, the respondent was convicted under section 9(b) of
the Control of Narcotic Substances Act, 1997 vide judgment dated
1.6.2011; he was sentenced to imprisonment for life with a direction to
pay fine.
According to the prosecution, the respondent was intercepted by
an A.N.F. contingent along with 22.550 kg cannabis, wrapped in 19
packs, on board a cab driven by Hameed Ullah, within the precincts of
Police Station A.N.F. Peshawar; considered as an unsuspecting
companion, the latter was let off. A learned Division Bench of Peshawar
High Court acquitted the respondent of the charge vide impugned
judgment dated 22.2.2012 by taking into consideration statements of
PW-3 and PW-4 as well as plea of innocence supported by cab driver as
a witness in his defence.
2.
Mr. Muhammad Tariq Shah, learned Special Prosecutor
ANF has vehemently argued that in the face of overwhelming evidence
there was no occasion for the High Court to let off the respondent,
captured red-handed with a huge cache of the contraband; according to
him, the High Court, out of context, misconstrued the statements of the
prosecution witnesses to hold that they failed to conclusively blame the
Criminal Petition No.30-P of 2012
2
accused with the possession of narcotic lying next to him in the rear of
car. Reliance upon statement of Hameed Ullah (DW-1), a witness
conveniently manageable in circumstances, was hardly sufficient to
preponderate over the prosecution evidence, concluded the learned Law
Officer.
3.
Heard. Record perused.
4.
We have gone through the statements of the witnesses to
find that one of them, namely, Mushtaq Ahmed, SI (PW-3), while
sticking to his case for a while, did provide a space for exit to the
respondent by stating that “it is correct that no paper or chit are
recovered from the Gatrhi or from the physical search of the accused
facing trial to show that the narcotics belonged to the accused”; in the
next breath, he, however, volunteered that “the accused himself
admitted the ownership of the said Gatrhi”; by that the damage to the
prosecution case had irreparably been done; he dealt another blow to
the prosecution by stating that “It is correct that the Gatrhi was not lying
in the lap of the accused nor he was holding it in his hand at that time”.
Fazal-i-Ameen, HC/PW-4 is an equal partner in the treacherous
alliance; he stated with audacity “it is correct that no narcotic was
recovered from the accused from his body search”. Arrival of Hameed
Ullah in the witness-box to support the respondent is last straw on
camel’s back inasmuch, admittedly on the wheel, at the time of
interception, he categorically denied, on oath, seizure of any
contraband, foreclosing all options for the High Court to maintain the
conviction. Petition fails. Leave declined. Office shall transmit a copy of
this judgment to the Director General A.N.F. to seriously consider dire
necessity of setting his house in order.
Judge
Judge
Peshawar, the
28th June, 2021
Not approved for reporting
Azmat/-
|
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|
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
Present:
MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL
MR. JUSTICE QAZI MUHAMMAD AMIN AHMED
Criminal Petition No.30-P of 2014
(Against the judgment dated 20.02.2014 passed by the
Peshawar High Court Peshawar in Cr. A. No.78-P/2013)
State through A.G. KP, Peshawar
…Petitioner
Versus
Amanat Khan, etc.
..Respondent
For the Petitioner(s):
Mr. Muhammad Nisar, Addl. A.G. KP
For the Respondent(s): N.R.
Date of hearing:
06.7.2021
ORDER
Qazi Muhammad Amin Ahmed, J-. In broad daylight, Javed
Ali Shah, 40, was shot dead within the precincts of Police Station Lahore
District Swabi; First Information Report was lodged by his uncle Syed
Sardar Shah (PW-3) wherein he blamed the respondent, a previous convict,
as the sole culprit, in the backdrop of a previous altercation. Autopsy
conducted at 1:05 p.m. confirmed four entry wounds with corresponding
exits. Respondent stayed away from the law and was finally spotted in a
prison at Takhat Bhai wherefrom he was transposed as an accused in the
present case; pursuant to a disclosure, he led to the recovery of a .30
caliber pistol, however, incompatible with the casings secured from the
spot. A learned Additional Sessions Judge vide judgment dated 31.01.2013
convicted him under clause (b) of Section 302 of the Pakistan Penal Code,
1860 with the sentence of death alongside a direction to pay compensation,
overturned by a Division Bench of Peshawar High Court Peshawar vide
impugned judgment dated 20.02.2014, vires whereof, are being assailed on
the grounds that in the face of overwhelming evidence furnished by natural
witnesses having no axe to grind, there was no occasion for the High Court
to acquit the respondent from the charge, squarely structured on ‘proof
beyond doubt’. It is next argued that the impugned view of the High Court,
seemingly based upon various circumstances, considered by it as suspect,
mostly relate to peripheral or investigative flaws, with no bearing upon the
Cr.P.30-P/2014
2
preponderance of ocular account furnished by the witnesses who had
satisfactorily explained their presence at the spot; they do not seem to have
an axe to grind by substituting an innocent with the guilty. It is lastly
argued that in the wake of respondent’s absconsion, a negative forensic
report did not adversely effect the prosecution’s case nor non-mentioning of
specific caliber of the weapon could destroy the intrinsic value of the
testimony that successfully withstood the test of cross-examination,
particularly having regard to the formidable past, hounding the respondent.
Leave is granted to reappraise the entire evidence with a view to secure the
ends of justice. Send for the respondent through bailable warrant of arrest
in the sum of Rs.200,000/- with one surety in the like amount, returnable
to the Assistant Registrar of this Court at Peshawar, to be executed through
Station House Officer, within a fortnight.
Judge
Judge
Peshawar,
6th July, 2021
Azmat/-
‘Not approved for reporting’
Cr.P.30-P/2014
3
|
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Manzoor Ahmad Malik
Mr. Justice Syed Mansoor Ali Shah
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.303-L of 2018
(On
appeal
from
the
judgment
dated
29.1.2018 passed by the Lahore High Court,
Multan Bench passed in Criminal Appeal
No.664/2011)
Muhammad Shamoon deceased through
legal representatives
…Petitioner(s)
VERSUS
The State and another
…Respondent(s)
For the Petitioner(s)
: Ch. Pervaiz Akhtar Gujjar, ASC
For Respondent No.2
:
Mr. Sikandar Javed, ASC
For the State
: Ch. M. Mustafa,
Deputy Prosecutor General
Date of Hearing
: 30.05.2019
JUDGMENT
Qazi Muhammad Amin Ahmed, J.- Muhammad
Shamoon (since dead) was indicted alongside his son Muhammad
Saleem for homicide, by a learned Addl. Sessions Judge at
Chichawatni; vide judgment dated 25-8-2011, he was returned a
guilty verdict for Qatl Shibhi-i-Amd; sentenced under section 316 of
the Pakistan Penal Code 1860, henceforth referred to as "the
Code", he was directed to pay Diyat in the sum of Rs.10,94,816/-
to the legal heirs of the deceased; co-accused Muhammad Saleem
was let off with reduction of sentence, already undergone by him.
Aggrieved by the judgment, Muhammad Shamoon filed Crl. Appeal
No.664/2011; it was admitted for regular hearing on 13-9-2011,
subsequent whereto, he was released on bail vide order dated
23-4-2012, however, passed away before final adjudication and
when the appeal came up for hearing on 29-1-2018, a learned
Division Bench of Lahore High Court disposed it of as having
abated in the wake of his death. It is in this backdrop that one of
Criminal Appeal No.303-L of 2018
2
the legal heirs of the deceased, namely, Javed Iqbal made motion
dated 29-6-2018 for realization of Diyat amount from deceased's
estate; pursuant to the process, the estate was attached and this
brings deceased's legal heirs to this Court to question the
impugned abatement, seeking decision of appeal on merits; Javed
Iqbal, respondent has contested the move.
2.
Barring whipping provided under special laws, broadly
categorized, there are two types of punishments to which offenders
are liable under section 53 of the Code; by nature, these are
corporal or monetary. Corporal punishments have to be exacted
from the person of the offender either through forfeiture of his
freedom or even life; these are inseparably linked with his person
and wither away with his departure from this World. Death
vindicates the charge. Monetary punishment is to be carried out
from the assets held by the offender; his death would not absolve
the legacy and it is unambiguously evident by the legislative intent
manifested in section 386 of the Code of Criminal Procedure, 1898.
Diyat is amongst the punishments provided under the Code and
according to clause (e) of section 299 thereof, it is compensation
payable to the legal heirs of the victim, value whereof, is equivalent
to 30,630 grams of Silver to be determined on yearly basis. Section
331 of the Code provides that an offender burdened with payment
of Diyat, in the event of default, shall remain lodged in prison until
it is paid in full or through installments settled against security,
however, under sub-section (3) thereof, in the event of his death, it
shall be recoverable from his estate. A combined reading of section
431 of the Code of Criminal Procedure, 1898 with section 331 of
the Code, unambiguously ensure continuation of appeal by an
offender liable to payment of Diyat even after his death, thus, there
was no occasion for the learned Judges in the High Court to short-
circuit
the
proceedings
without
adjudication
on
merit.
Consequently, Criminal Petition is converted into appeal; same is
allowed, the impugned order is set aside. The appeal shall be
deemed to be pending before the High Court for decision on merits,
after hearing the parties. Above are the reasons of short order of
even date whereby the following order was passed:-
Criminal Appeal No.303-L of 2018
3
"For detailed reasons to be recorded later, the instant criminal
petition is converted into an appeal and the same is hereby
allowed. The order dated 29.01.2018, passed by the learned
High Court, Multan Bench, Multan, whereby criminal appeal
filed by the convict Muhammad Shamoon (since dead) was
consigned to record as having been abated is set aside. The
said appeal shall be deemed to be pending before the learned
High Court, which shall be decided on merits after hearing the
parties."
JUDGE
JUDGE
Lahore, the
30th of May, 2019
Approved for Reporting
Azmat Ali/*
JUDGE
|
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE YAHYA AFRIDI
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
MR. JUSTICE MUHAMMAD ALI MAZHAR
CRIMINAL PETITION NO. 317-L OF 2023
(On appeal against the order dated 14.02.2023
passed by the Lahore High Court, Lahore in Crl. Misc.
No. 48864-B/2022)
Naveed Sattar
… Petitioner
Versus
The State etc
… Respondents
For the Petitioner:
Mr. Humayoun Rashid, ASC
(Through video link from Lahore)
For the State:
Mr. Irfan Zia, DPG
M/s. Wahid and Iqbal, SI
For the Complainant:
In person
Date of Hearing:
20.09.2023
ORDER
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through the instant petition
under Article 185(3) of the Constitution of Islamic Republic of Pakistan,
1973, the petitioner has assailed the order dated 14.02.2023 passed by
the learned Single Judge of the learned Lahore High Court, Lahore, with a
prayer to grant post-arrest bail in case registered vide FIR No. 406/2021
dated 17.07.2021 under Sections 302/34/118/120-B/109/506 PPC at
Police Station B-Division, District Kasur, in the interest of safe
administration of criminal justice.
2.
Briefly stated the prosecution story as narrated in the crime
report is that in the night of 17.07.2021, three unknown persons entered
in the house of the complainant and murdered her son by making fires on
his right leg below the abdomen. On the same day, the complainant got
lodged the FIR against the unknown persons. On 25.08.2021, 30.10.2021
and 15.11.2021, the complainant got recorded her supplementary
statements under Section 164 Cr.P.C. wherein she did not nominate the
Criminal Petition No. 317-L/2023
2
petitioner as an accused. However, subsequently she recorded yet another
statement on 22.11.2021 wherein she nominated the present petitioner
for the first time. The petitioner was arrested on 27.11.2021 whereafter
he applied for post-arrest bail before the learned Trial Court as also before
the learned High Court but could not get the relief sought for. Hence, this
petition.
3.
At the very outset, it has been argued by learned counsel for
the petitioner that the petitioner has been falsely roped in this case
against the actual facts and circumstances. Contends that the allegations
leveled against the petitioner are false, frivolous, baseless, concocted and
the prosecution story is not worthy of credit. Contends that the
complainant nominated the petitioner in her fourth supplementary
statement after a period of four months, which shows her mala fides.
Contends that the photographs allegedly connecting the petitioner with
the commission of the crime were never sent for forensic examination,
therefore, they cannot be relied upon to determine the guilt of the
petitioner. Lastly contends that the learned High Court while declining bail
to the petitioner has not followed the guidelines issued by this Court for
the safe administration of criminal justice, therefore, the same may be set
at naught and the petitioner may be released on bail.
4.
On the other hand, learned Law Officer assisted by the
complainant in person opposed the petition by contending that the
petitioner has specifically been nominated by the complainant while
recording her supplementary statement and he was found involved during
police investigation, therefore, he does not deserve any leniency from this
Court.
5.
We have heard learned counsel for the parties at some
length and have perused the available record with their able assistance.
As per the contents of the crime report, on 17.07.2021 at
02:50 AM (night), three unknown persons entered in the house of the
complainant and murdered her son by making fires on his right leg below
Criminal Petition No. 317-L/2023
3
the abdomen. On the same day, the complainant got registered the FIR
against the unknown persons. We have noted that subsequently the
complainant
got
recorded
three
supplementary
statements
on
25.08.2021, 30.10.2021 and 15.11.2021 wherein she did not nominate the
petitioner as an accused. However, on 22.11.2021 she recorded another
statement after the lapse of more than four months wherein she
nominated the present petitioner for the first time. A bare look of the
crime report and the subsequent four supplementary statements got
recorded by the complainant shows that the complainant remained
changing her stance. The identification parade was conducted after
petitioner’s nomination by the complainant and in such circumstances,
prima facie the sanctity of such test identification parade is open for
determination. So far as the Call Data Record (CDR) is concerned, this
Court in a number of cases has held that in absence of any concrete
material the CDR is not a conclusive piece of evidence to ascertain the
guilt or otherwise of an accused. Similarly, there is nothing on record to
show that the photographs allegedly connecting the petitioner with the
commission of the crime were ever sent for forensic examination,
therefore, in view of the law laid down by this Court in Ishtiaq Ahmed
Mirza Vs. Federation of Pakistan (PLD 2019 SC 675) it is unsafe to rely upon
the same as a piece of evidence in a court of law. It appears there is no
direct evidence against the petitioner and the prosecution case hinges
upon the circumstantial evidence. The fundamental principle of universal
application in cases dependent on circumstantial evidence is that in order
to justify the inference of guilt of an accused, the incriminating fact must
be incompatible with the innocence of the accused and incapable of
explanation upon any other reasonable hypothesis than that of his guilt.
The cumulative effect of all these aspects creates a doubt in the
genuineness of prosecution version. It is settled principle of law that
benefit of doubt can be even extended at bail stage. Reliance is placed on
Muhammad Ejaz Vs. The State (2022 SCMR 1271), Muhammad Arshad Vs.
The State (2022 SCMR 1555) & Fahad Hussain Vs. The State (2023 SCMR
364). Although the petitioner was found involved during Police
Criminal Petition No. 317-L/2023
4
investigation but it is settled law that ipsi dixit of the Police regarding the
guilt or innocence of an accused could not be depended upon as the same
would be determined by Trial Court on the basis of evidence available on
record. The petitioner is behind the bars for the last more than 20 months.
This court in a number of cases has held that liberty of a person is a
precious right, which has been guaranteed under the Constitution of
Islamic Republic of Pakistan, 1973, and the same cannot be taken away
merely on bald and vague allegations. Taking into consideration all the
facts and circumstances stated above, we are of the view that the case of
the petitioner squarely falls within the ambit of Section 497(2) Cr.P.C.
entitling for further inquiry into his guilt.
6.
For what has been discussed above, we convert this petition
into appeal, allow it and set aside the impugned order. The petitioner is
admitted to bail subject to his furnishing bail bonds in the sum of
Rs.200,000/- with one surety in the like amount to the satisfaction of
learned Trial Court. Before parting with the order, we may observe that
the observations made in this order are tentative in nature and would not
prejudice the proceedings before the Trial Court.
JUDGE
JUDGE
JUDGE
Islamabad, the
20th of September, 2023
Approved For Reporting
Khurram
|
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
MR. JUSTICE SAJJAD ALI SHAH
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
CRIMINAL PETITION NO. 324 OF 2020
(Against the order of the Lahore High
Court, Rawalpindi Bench Rawalpindi
dated 02.01.2020 passed in Crl. Misc.
2218-B of 2020)
Muhammad Faisal
… Petitioner
Versus
The State and another
… Respondents
For the Petitioner
For the Complainant
:
Umar Aasdullah, ASC
Complainant in person.
For the State
:
Syed Ahmad Raza Gillani, APG and
Saeed I.O.
Date of Hearing
:
05.05.2020
ORDER
SAYYED MAZAHAR ALI AKBAR NAQVI, J:- Petitioner
has assailed the jurisdiction of this Court under Article 185(3) of the
Constitution of Islamic Republic of Pakistan, 1973 calling in
question the order of learned Lahore High Court, Rawalpindi Bench
Rawalpindi dated 20.01.2020 with prayer to grant leave against the
order and to release the petitioner on post arrest bail in the interest
of justice.
2.
The petitioner alongwith others was involved in case
bearing FIR No.524/2019 dated 05.08.2019, registered with police
station Gujar Khan, District Rawalpindi.
Criminal Petition No. 324 of 2020.
-: 2 :-
As per allegation contained in the crime report, it is
alleged that petitioner while armed with pistol .30 bore resorted to
two consecutive fire shots which landed on right knee and below the
right knee on left side of injured PW.
3.
At the very outset, learned counsel for the petitioner
argued that the injuries ascribed to the petitioner are exaggerated by
the
prosecution.
Contends
that
dimension
of
injury
No.2
commensurate with injury No.1 which shows that both the injuries
are in continuation of each other. Further contends that the injured
PW was admitted in the hospital, however, he was discharged on
the following day which fact in isolation reflects that the injured PW
was not suffering from any serious injury. It has been further
argued that declaration of injury was made at a belated stage with
the delay of eight months which speaks volume qua its authenticity.
Lastly it has been argued that even if it is assumed that the injuries
has been caused by the petitioner, still it do not fall within the
prohibitory clause of section 497 Cr.P.C. entitling the petitioner for
the relief sought for.
4.
On the other hand, the injured PW present in person
has stated that he sustained two fire shot injuries by the hands of
the petitioner. He was admitted in the hospital for a considerable
time where he was operated upon; hence, petitioner is not entitled
for the grant of bail.
5.
We have heard the learned counsel for the parties and
gone through the record.
As per prosecution version contained in the FIR, though
the petitioner has been attributed two fire shots on non-vital part of
the body of injured PW, however, dimension and locale of injuries
Criminal Petition No. 324 of 2020.
-: 3 :-
portray that possibility cannot be ruled out that injures No. 1 & 2 are
in continuation of each other. Perusal of record further reveals that
the petitioner was admitted in hospital on 19.08.2019 while he was
discharged on the following day i.e. 20.08.2019. The statement of
injured PW that he has undergone surgical intervention is not
substantiated from the record. The injury ascribed to the petitioner
has been declared falling under section 337 F(vi) PPC which entail
as per statue maximum punishment of seven years. There is no
denial to this fact that the declaration of injury was made after the
lapse of eight months i.e. on 04.05.2020, during the pendency of
instant petition before this Court. The accumulative effect of all these
facts and circumstances create doubt regarding truthfulness of
prosecution version. It is established principle of law that benefit of
doubt can even be extended at bail stage.
6.
As far as the question of applicability of section 324
PPC is concerned, undeniably, the injuries are on non-vital part
against a motive which is feeble in nature, hence, we are
constrained to give any finding lest it may prejudice case of either
party, however, it would be resolved by the learned trial court after
recording of evidence during the course of proceeding before it.
Keeping in view all the facts and circumstances and while seeking
guidance from judgment of this Court titled as “Muhammad Umar
vs. the State and another” (PLD 2004 Supreme Court 477), we are of
the considered view that the case of the petitioner is of “further
inquiry” falling within the ambit of section 497(2) Cr.P.C. Otherwise,
liberty of a person is a precious right which has been guaranteed in
the Constitution of Islamic Republic of Pakistan, 1973.
Criminal Petition No. 324 of 2020.
-: 4 :-
7.
As a consequence of the facts and circumstances
surfaced on the record, we are persuaded to grant leave in this case.
As such, Criminal Petition is converted into appeal, same is allowed;
the petitioner shall be released on bail subject to his furnishing bail
bonds in the sum of Rs.5,00,000/- with one surety in the like
amount to the satisfaction of the learned trial Court/Duty Judge.
8.
Before parting with the order, it has been made clear
that the observations made hereinabove are tentative in nature and
it has no bearing during the course of proceedings before the learned
trial court.
Judge
Judge
Islamabad,
05.05.2020
Approved for reporting
Athar
|
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE MUNIB AKHTAR
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
CRIMINAL PETITION NO. 328 OF 2023
(On appeal against the order dated 08.03.2023
passed by the Lahore High Court, Lahore in Crl. Misc.
No. 15722-B/2023)
Muhammad Ali
… Petitioner
VERSUS
The State and another
… Respondents
For the Petitioner:
Mr. Azmat Ullah Chaudhry, ASC
For the State:
N.R.
Date of Hearing:
18.04.2023
ORDER
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through the instant petition
under Article 185(3) of the Constitution of Islamic Republic of Pakistan,
1973, the petitioner has assailed the order dated 08.03.2023 passed by
the learned Single Judge of the Lahore High Court, Lahore, with a prayer to
grant post-arrest bail on statutory ground in case registered vide FIR No.
1385 dated 10.10.2020 under Sections 324/148/149/337-L(i)/337-D/337-
F(v)/337-F(iii)/336 PPC at Police Station South Cantt, District Lahore, in the
interest of safe administration of criminal justice.
2.
Briefly stated the allegation against the petitioner is that he
along with his co-accused while armed with firearms launched a
murderous attack on the complainant party and due to the firing made by
the petitioner and co-accused, as many as eight persons from the
complainant party sustained injuries on different parts of their bodies.
3.
At the very outset, it has been argued by learned counsel for
the petitioner that the petitioner has been falsely roped in this case
CRIMINAL PETITION NO. 328 OF 2023
2
against the actual facts and circumstances. Contends that the petitioner is
behind the bars for the last more than 20 months and the conclusion of
trial is not in sight in near future, therefore, he is entitled for the grant of
post-arrest bail on statutory ground. Contends that the delay in conclusion
of the trial is not attributable to the petitioner rather the same occasioned
due to the prosecution. Lastly contends that the learned High Court while
declining bail to the petitioner has not followed the guidelines issued by
this Court for the safe administration of criminal justice, therefore, the
same may be set at naught and the petitioner may be released on bail.
4.
We have heard learned counsel for the petitioner at some
length and have perused the available record.
There is no denial to this fact that the petitioner filed three
successive post-arrest bail petitions before the learned High Court. Two of
them were on statutory ground and all were dismissed. The petitioner was
arrested on 30.07.2021 and the charge was framed against him on
03.12.2021. In the impugned order, the learned High Court has very
elaborately discussed the conduct of the petitioner-accused side, which
candidly shows that the accused side is lingering on the matter
deliberately and is not cooperating to conclude the trial expeditiously. The
learned High Court referred four instances when although the prosecution
witnesses were present before the learned Trial Court but their evidence
could not be recorded because of the adjournment sought by the
petitioner. In this backdrop, the learned High Court rightly observed that
the petitioner is intentionally delaying the matter just to create a ground
for bail in his favour. As many as eight persons from the complainant party
sustained firearm injuries on different parts of their bodies. The perusal of
record reflects that the complainant party is producing the witnesses
before the learned Trial Court on each and every date but the petitioner is
avoiding getting their evidence recorded. While deciding bail petition on
statutory grounds, the Courts must examine the available material to first
form an opinion that such delay is not occasioned due to any act of the
accused himself or any other person acting on his behalf. If that be so, the
CRIMINAL PETITION NO. 328 OF 2023
3
bail even on ground of statutory delay can be declined. The learned High
Court has correctly appreciated the material aspects of the case and the
conclusions drawn are in line with the guidelines enunciated by this Court
on the subject. Learned counsel for the petitioner has not been able to
point out any legal or factual error in the impugned order, which could be
made basis to take a different view from that of the learned High Court.
5.
For what has been discussed above, we do not find any merit
in this petition, which is dismissed and leave to appeal is refused.
JUDGE
JUDGE
Islamabad, the
18th of April, 2023
Approved For Reporting
Khurram
|
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Asif Saeed Khan Khosa, ACJ
Mr. Justice Dost Muhammad Khan
Criminal Petition No. 32 of 2017 and Criminal Miscellaneous
Application No. 54 of 2017
(Against the order dated 30.11.2016 passed by the Lahore High
Court, Lahore in Criminal Appeal No. 1501 of 2015)
State
through
the
Deputy
Director
(Law),
Regional
Directorate, Anti-Narcotics Force
…Petitioner
versus
Mujahid Naseem Lodhi
…Respondent
For the petitioner:
Raja Inaam Ameen Minhas, Special
Prosecutor, Anti-Narcotics Force
Syed Rifaqat Hussain Shah, AOR
Mr. M. Tariq, Deputy Director (Law)
For the respondent:
In person.
On Court’s Notice:
Syed
Nayyab
Hussain
Gardezi,
Assistant
Attorney-General
for
Pakistan
Date of hearing:
05.07.2017
ORDER
Asif Saeed Khan Khosa, ACJ.:
The respondent namely
Mujahid Naseem Lodhi had been booked in case FIR No. 36
registered at Police Station Anti-Narcotics Force, Lahore on
24.07.2012 in respect of an offence under section 9(c) read with
section 15 of the Control of Narcotic Substances Act, 1997 with an
Criminal Petition No. 32 of 2017
2
allegation that he was apprehended while in possession of heroin
weighing 3100 grams (3.100 kilograms). In the same case an
allegation had also been leveled against the respondent’s co-
accused namely Muhammad Suneel that he was apprehended
while in possession of heroin weighing 900 grams. During the trial
the said Muhammad Suneel co-accused admitted his guilt and
confessed before the trial court and on such admission of guilt by
him he was convicted by the trial court for an offence under
section 9(b) of the Control of Narcotic Substances Act, 1997 and
was sentenced to rigorous imprisonment for four months and fine.
Later on during the same trial the present respondent namely
Mujahid Naseem Lodhi also admitted his guilt, confessed and
showed remorse and repentance on the basis of which he was
convicted by the trial court for an offence under section 9(c) of the
Control of Narcotic Substances Act, 1997 and was sentenced to
rigorous imprisonment for three years and fine. The State through
the Anti-Narcotics Force sought enhancement of the respondent’s
sentence through an appeal which was dismissed by the High
Court and now the same relief has been sought by the State
through the present petition before this Court.
2.
On 20.03.2017 this Court had raised some queries regarding
competence of the State to file an appeal seeking enhancement of a
convict’s sentence and also regarding competence of a Special
Prosecutor, Anti-Narcotics Force to file an appeal before this Court
and in respect of such queries notice was issued to the respondent
as well as to the learned Attorney-General for Pakistan.
3.
We have heard the learned Special Prosecutor, Anti-
Narcotics Force, the learned Assistant Attorney-General for
Pakistan and the respondent appearing in person on the above
mentioned issues as well as on the merits of the case.
4.
The questions of law noticed above do not require any
pronouncement by this Court through the present petition because
the same have already been attended to and authoritatively
Criminal Petition No. 32 of 2017
3
answered in the judgment passed by this Court in the case of The
State through Director-General, Anti-Narcotics Force v. Abdul Jabbar
alias Jabbara (Criminal Appeal No. 254 of 2014 decided on
18.05.2010).
5.
As regards the prayer made through the present petition
regarding enhancement of the respondent’s sentence the learned
Special Prosecutor, Anti-Narcotics Force has mainly relied upon
the judgment handed down by a Full Bench of the Lahore High
Court, Lahore in the case of Ghulam Murtaza and another v. The
State (PLD 2009 Lahore 362) wherein some guidelines had been
laid down vis-à-vis sentencing in cases of narcotic substances and
has maintained that the sentence passed by the trial court against
the respondent was not in accord with the said guidelines. The
said judgment of the Lahore High Court, Lahore had approvingly
been referred to by this Court in the case of Ameer Zeb v. The State
(PLD 2012 SC 380). We note that in paragraph No. 10 of the
judgment handed down by the Lahore High Court, Lahore in the
above mentioned case it had been observed that “in a particular
case carrying some special features relevant to the matter of
sentence a Court may depart from the norms and standards
prescribed above but in all such cases the Court concerned shall
be obliged to record its reasons for such departure.” In the case in
hand the trial court had recorded reasons for passing a sentence
against the respondent which made a departure from the above
mentioned sentencing guidelines. The trial court had observed that
the respondent had made a confession before the trial court
besides expressing remorse and repentance with an assurance not
to deal with narcotics in future. It was also noticed by the trial
court that the respondent’s co-accused namely Muhammad Suneel
had also made a confession before the trial court and on the basis
of such confession he was also awarded a sentence which departed
from the above mentioned sentencing guidelines but the State had
not sought enhancement of his sentence. The High Court had
refused to enhance the respondent’s sentence and had dismissed
an appeal filed by the State in that regard by holding that the
Criminal Petition No. 32 of 2017
4
above mentioned considerations weighing with the trial court for
passing a reduced sentence against the respondent were
appropriate in the circumstances of the present case. The exercise
of jurisdiction and discretion in the matter of the respondent’s
sentence by the trial court and the High Court have not been found
by us to be open to any legitimate exception, particularly when the
reasons recorded for passing a reduced sentence against the
respondent and for making a departure from the above mentioned
sentencing guidelines have been found by us to be proper in the
peculiar circumstances of this case. This petition is, therefore,
dismissed and leave to appeal is refused.
Criminal Miscellaneous Application No. 54 of 2017
6.
As the main petition has been dismissed by this Court today,
therefore, the interim relief already allowed through the present
miscellaneous application is withdrawn and recalled. This
miscellaneous application is dismissed.
Acting Chief Justice
Judge
Islamabad
05.07.2017
Approved for reporting.
Arif
|
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mushir Alam
Mr. Justice Yahya Afridi
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition Nos.335 of 2020 and 678 of 2020
(Against the judgment dated 18.02.2020 passed by the Peshawar
High Court Peshawar in Criminal Appeal No.1323.P/2019 and Crl.
Rev. No.260-P of 2019)
Fareed & others
(in Cr. P.335/2020)
Usman Shah
(in Cr. P.678 /2020)
…Petitioner(s)
Versus
The State and another
(in Cr. P.335/2020)
Fareed & others
(in Cr. P.678 /2020)
…Respondent(s)
For the Petitioner(s):
Mr. Asadullah Khan Chamkani, ASC
(in Cr. P.335/2020)
Mr. Hussain Ali, ASC
(in Cr. P.678/2020)
For the State:
Mr. Arshad Hussain Yousafzqai, ASC/
State Counsel
(in both cases)
For Respondent(s):
Mr. Hussain Ali, ASC
(in Cr. P.335/2020)
Mr. Asadullah Khan Chamkani, ASC
(in Cr. P.678 /2020)
Date of hearing:
29.09.2020.
ORDER
Qazi Muhammad Amin Ahmed, J.- Petitioners, real
brothers inter se, were tried by a learned Additional Sessions Judge at
Mardan for committing Qatl-i-Amd of Ghulam Muhammad, 56, and
assaulting his son Usman Shah (PW-5) held under their restraint; they
were returned a guilty verdict vide judgment dated 31.10.2019 whereby
they stood convicted under section 316 of the Pakistan Penal Code,
1860 as well as on the coordinate charge; sentenced to 10-years and
Crl. P. Nos.335 & 678 of 2020
2
1-year Rigorous Imprisonment, respectively, each they were directed to
pay Diyat to the legal heirs of the deceased; the High Court maintained
the convictions, however, reduced the sentence of imprisonment to a
period of 5-years RI vide impugned judgment dated 18.02.2020, vires
whereof, are being assailed by the petitioners through Criminal Petition
No.335 of 2020 on a variety of grounds, casting of a larger net, being
the most prominent. The complainant has also sought enhancement of
the sentence through Criminal Petition No.678 of 2020.
2.
On the fateful day, i.e. 24.6.2013, in the backdrop of a
previous altercation, the petitioners accompanied by two unknown
companions assaulted the complainant/PW-5 and his father Ghulam
Muhammad with butt blows; former was thereafter detained in a Hujra;
casualties were shifted to DHQ Hospital Mardan; medical officer
confirmed receipt of multiple injuries caused by blunt weapon. Ghulam
Muhammad succumbed to the injuries on 26.06.2013; Ikram and
Zahir Shah, petitioners, were arrested on 14.11.2013 followed by Farid
Khan and Muhammad Saeed on 08.05.2014; they were sent to face
trial albeit with no recovery. Dying declaration by Ghulam Muhammad
deceased and ocular account furnished by his injured son received
acceptance both by the learned trial Court as well as the High Court to
view the incident as Qatl Shibhi-i-Amd within the contemplation of
section 316 of the Code ibid.
3.
Learned counsel for the petitioners/convicts contends that
entire clan comprising four real brothers has been implicated in a
sudden affair; that the number of injuries do not correspond with the
assailants and thus, there was no occasion for the courts below to
settle en bloc culpability on the statement of a witness who despite
alleging assault surprisingly remained unscathed, next argued the
learned counsel to conclude that in the given background, reliance
upon dying declaration was highly unsafe. The learned Law Officer
assisted by the learned counsel for the complainant defended the
impugned judgments. It is argued in Criminal Petition No.678 of 2020
that that death being the obvious consequence of the injuries inflicted
by the convicts to the deceased, in his mid-sixties, their culpability
most aptly fell within the mischief of clause (b) of section 302 of the
ibid and, thus, interference by this Court is most called for; in any
case, there was no occasion for the High Court to substantially reduce
the sentence without any extenuating reason, concluded the learned
counsel.
Crl. P. Nos.335 & 678 of 2020
3
4.
Heard. Record perused.
5.
Deceased was medically examined shortly after the incident
and the medical officer observed following injuries on his person:
1.
Blunt trauma lower abdomen
2.
Blunt trauma nose with epistaxis
Though apparently trivial, the deceased with the fragility of old age
could not endure the injuries; the autopsy report noted multiple red
colour bruises of various sizes starting from 2 x 3 cm to 7 x 10 cm on
various parts of the body accompanied by laparotomy and surgical
wound. According to the medical officer, the deceased died due to
injuries in small intestine and abdominal blood vessels, seemingly
insufficient to cause death in the ordinary course of nature,
nonetheless, unmistakably suggesting infliction of violence that
proportionates to the number of assailants, additionally confirmed by
the investigative conclusions. Wholesale participation by the four
brothers in a situation ignited on some trivial issue, in a rural
neighbourhood of Khyber Pakhtunkhwa, without anticipating an
homicidal death does not raise eyebrows.
Though the medical officer has blamed the above noted injuries
as the cause behind the death, however, it cannot be held with any
degree of certainty that the said injuries were essentially caused by
blunt weapons to invoke the doctrine of novus actus interveniens so as
to saddle the petitioners with the mischief of clause (b) of the section
ibid as argued by the complainant’s counsel. Prosecution’s failure to
effect recovery reflects upon the allegation of infliction of butt blows;
violence appears to be result of modes other than conventional and,
thus, view taken by the Courts below being, well within the remit of
law, calls for no interference. Petitions fail. Leave declined.
Judge
Judge
Judge
Islamabad, the
29th September, 2020
Not approved for reporting
Azmat/-
|
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Sardar Tariq Masood
Mr. Justice Mazhar Alam Khan Miankhel
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.33 of 2021
(Against the judgment dated 11.01.2021 passed by the Lahore High Court
Bahawalpur Bench Bahawalpur in Cr. Misc. No.4127-B/2020)
Muhammad Nadeem
…Petitioner(s)
Versus
Muhammad Khurram Iqbal and another
…Respondent(s)
For the Petitioner(s):
Nemo
For Respondent No.1:
Ch. Hafeez Ullah Yaqub, ASC with
respondent.
Mr. M. Sharif Janjua, AOR
For the State:
Mirza Abid Majeed,
Deputy Prosecutor General Punjab
Date of Hearing:
17.02.2022.
ORDER
Qazi Muhammad Amin Ahmed, J.:- Impugned herein
is order dated 11.01.2021 whereby a learned Judge-in-Chamber of
the Lahore High Court at Bahawalpur Bench Bahawalpur admitted
Khurram Latif respondent to bail in anticipation to his arrest in a
criminal case under sections 3, 4 of the Punjab Prohibition Money
Lending Act, 2007, registered with Police Station City Sadiqabad on
the complaint of Muhammad Nadeem petitioner.
According to the petitioner, in the course of a business
transaction, he borrowed a sum of Rs.150,000/- to be repaid
through monthly installments of Rs.6000/- each, a terminal vicious
circle
that
continued
to
burden
him
despite
payment
of
Rs.500,000/-; as the petitioner exorbitantly raised the interest rate
and also coerced him to issue bank cheques from his account, a
sword of damocles over his head, trapped with no option, he finally
laid information with the police and it is in this backdrop that
Criminal Petition No.33 of 2021 2
petitioner’s first attempt before a learned Additional Sessions Judge
at Sadiqabad failed, however, upon his approach to the High Court
he was granted judicial protection vide impugned order dated
11.01.2021.
2.
Heard. Record perused.
3.
What weighed with the learned Judge-in-Chamber to
favourably exercise his extraordinary equitable jurisdiction in
respondent’s favour, for the convenience of reference is reproduced
below:-
“After hearing the learned counsel for the parties and
having gone through the record, it reveals that although
the petitioner is named in the FIR with the above said
accusation of committing violation of provision of the Act
ibid, but at the same time I observed that during the
course of investigation, an arbitration/Panchayat was
convened between the parties and arbitration deed was
executed, in which it is categorically written that the
present petitioner is not involved in any money lending
and an amount of Rs.44,700/- is still outstanding
against Muhammad Nadeem towards the present
petitioner. In this regard, the complainant himself has
sworn an affidavit, copy of the same is annexed with
this petition, in which he has reiterated that the
petitioner is owner of Al-Medina Traders and he has no
concern with the money lending and he further
undertook
to
pay
Rs.44700/-
which
were
still
outstanding against him. When this situation was put to
the Investigating officer, present in court, he frankly
conceded that an arbitration deed has been written
between the parties.”
The reasoning by itself unmistakably confirms subsistence of a
dispute raging between the parties over payment of some
outstanding amount. Upon a direction issued by this Court, District
Police Officer Rahim Yar Khan confirmed that the impugned
affidavit, relied upon by the High Court was secured by the
respondent, through means stained with duress and coercion, an act
by itself constituting an offence under the law; at worst, hardly
furnishing a justification to extend a relief rooted into equity that too
by suspending usual course of law, inevitably arrest in a cognizable
criminal case. It is by now well settled that protection of pre-arrest
bail is essentially a judicial protection to protect the innocent, being
Criminal Petition No.33 of 2021 3
targeted through abuse of process of law for motives, oblique and
sinister; it is neither a substitute for post arrest bail nor a treatment
to be extended in every run of the mill criminal case. It is an option
that warrants caution in its exercise, seemingly ignored by the High
Court. Criminal Petition is converted into appeal and allowed;
pre-arrest bail granted to the respondent is cancelled.
Judge
Judge
Judge
Islamabad, the
17th February, 2022
Azmat/-
|
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
Present:
MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL
MR. JUSTICE AMIN-UD-DIN KHAN
Criminal Petitions No. 35-Q/2017 to 37-Q/2017
(On appeal from the judgment dated 5.6.2017 passed by the High Court of
Balochistan, Quetta in Crl.A.No.107/2014 and M.R.No.3/2014 and Crl. Acquittal
AppealNo.122/2014).
Abdul Wasay
…In Crl.P.35-Q/17
Abdul Shakoor
…In Crl.P.36-Q/17
Abdul Shakoor & another
…In Crl.P.37-Q/17
…Petitioners
VERSUS
The State
…In Crl.P.35-Q/17
Abdul Wasay & another
…In Crl.P.36-Q/17
Abdul Hadi & others
…In Crl.P.37-Q/17
…Respondents
For the Petitioners:
Mr. Liaqut Ali Tareen, ASC
(In Cr.P.35-Q/17)
Syed Rifaqat Hussain Shah, AOR
For the Petitioners:
Mr. Zahoor-ul-Haq Chishti, ASC
(In Cr.P.36-Q & 37-Q/17)
Mr. Mehmood A. Sheikh, AOR
For State:
Syed Baqir Shah, ASC (State Counsel)
(In all cases)
For the Complainant:
Mr. Zahoor-ul-Haq Chishti, ASC
(In Cr.P.35-Q/17)
Mr. Mehmood A. Sheikh, AOR
Date of Hearing:
19.2.2021
ORDER
MAZHAR ALAM KHAN MIANKHEL, J-.
Criminal Petition No. 35-Q of 2017
The Petitioner-convict was booked in case FIR No.22/2012
dated 18th May, 2012 registered under Sections 302, 147,148,149 of
the Pakistan Penal Code (PPC) and under Section 337-A,D,F, of the
Crl.P.35-Q/2017, etc
2
Q&D Ordinance, Police Station, City-Chaman, District Killa Abdullah
at Chaman alongwith his co-accused for the murder/qatl-e-amd of
Najeebullah son of Abdul Shakoor and causing knife blows to the
complainant-Abdul Shakoor and his brother Abdul Wadood. After
investigation and a regular trial the Petitioner was convicted under
Section 302 sub-Section (ii) of Q&D (as was described in the Qisas
and Diyat Ordinance) and sentenced to death as Tazir and further to
pay a compensation of Rs.200,000/- (two lac) under Section 544-A of
Code of Criminal Procedure (Cr.P.C.) to the legal heirs of the deceased
and in default thereof to further suffer one year S.I. The conviction of
the Petitioner was also maintained in appeal by the High Court of
Balochistan, Quetta vide its Judgment dated 5th June, 2017,
however, his sentence of death was modified to life imprisonment and
benefit under Section 382-B Cr.P.C. was also extended to him.
Compensation under Section 544-A Cr.P.C. and sentence in default
thereof was ordered to be maintained. The Petitioner through instant
petition has sought grant of leave to appeal by this Court against the
impugned Judgment dated 5th June, 2017.
2.
We have heard the learned counsel for Petitioner and the
learned State Counsel assisted by learned counsel for the
complainant. Perusal of the record reveals that the complainant
alongwith his brother Abdul Wadood while going to Bazar on 18th
May, 2012 for buying household articles were attacked by the
Petitioner alongwith his co-accused at 8.00 AM in the vicinity of
Police Station/Thana, ‘Levies Chaman’ District Killa Abdullah and the
said matter was also reported vide FIR No.84/2012. The
complainant received injuries. The complainant was being taken to
hospital by his brother Abdul Wadood and his son Najeebullah. When
Crl.P.35-Q/2017, etc
3
they reached outside the main gate of civil hospital Chaman, the
accused party including the Petitioner once again attacked them. The
Petitioner gave repeated churrri blows to Najeebullah who succumbed
to the injuries at the spot, whereas the complainant and his brother
Abdul Wadood received stab wound injuries at the hands of Abdul
Rashid co-accused. Perusal of the record further reflects that the
patrolling police reached at the spot during the occurrence and the
Petitioner alongwith his acquitted co-accused Abdul Rashid, Abdul
Hadi and Syed Ali were arrested at the spot alongwith their respective
weapons of offence i.e. ‘Churri’ (P-7) and ‘Chaqu’ (P-9). The same were
taken into custody by the investigating officer vide recovery memo
(Ex-P-5). PW-5 has not only confirmed the arrest of the accused at
the spot but has also confirmed the recovery of their respective above
noted weapons of offence. We have noted that it is a promptly lodged
report and the Petitioner alongwith his co-accused were arrested at
the spot. The case of the prosecution is fully supported by the two
injured PWs namely Abdul Shakoor (PW-1) and Abdul Wadood (PW-
2); Dr. Rafiullah appeared as PW-6 who confirmed the death of the
deceased, Najeebullah by issuing the MLC (Ex-P-6). (In this area,
postmortems normally are not conducted for the reasons best known to
the local administration as well as people of the locality). The MLC
issued by the Doctor fully supports the story of the prosecution
regarding murder of Najeebullah (deceased). The trial Court and the
High Court after proper appraisal of the evidence have recorded
conviction of the Petitioner. We have also gone through the entire
evidence and the material available on the record with the assistance
of the learned counsel for the parties and found nothing to interfere
with the conviction recorded by the courts below. Since the motive
alleged by the prosecution was not proved, so, the benefit to that
Crl.P.35-Q/2017, etc
4
extent i.e. conversion of death sentence to life imprisonment has
already been extended to the Petitioner in his appeal before the High
Court. The Petitioner simply denied the commission of offence but he
was also unable to give plausible explanation regarding his innocence
in his statement under Section 340(2) Cr.P.C., rather he has
admitted his arrest in the hospital but with a different narration but
that too was not established.
3.
The Petitioner alone has been charged for committing
murder of the deceased Najeebullah, whereas the other co-accused
have been charged for causing injuries to Complainant (PW-1) and
Abdul Wadood (PW-2). The prosecution has fully proved its case
against the Petitioner.
We after proper appraisal of evidence see no merits in
this petition which is dismissed and leave refused.
Criminal Petition No. 36-Q/2017:
Since the death sentence awarded to the convict - Abdul
Wasay/Respondent No.1 was converted to life imprisonment for want
of proof of motive, alleged by the prosecution, so by considering the
same as a mitigating circumstance, sentence awarded to the
Petitioner was modified. The learned counsel for the complainant was
unable to convince us for taking yet another view of the matter for
enhancement of sentence of convict, Abdul Wasay/Respondent No.1;
hence, this petition being meritless is dismissed and leave refused.
Criminal Petition No. 37-Q/2017:
Respondent No. 3/Abdul Rashid, accused was charged for
causing knife blows to the complainant and Abdul Wadood but no
medical evidence of the said injuries from proper source was brought
Crl.P.35-Q/2017, etc
5
on the record. The investigation officer produced their medical
certificates but the same were not considered and relied upon by the
trial court to record his conviction. Yet another aspect of the case was
also helpful in his acquittal as the complainant had also received
injuries in the earlier round of occurrence (separately reported vide
FIR No.84/2012 of the same date) and in absence of specific medical
report, it was difficult for the trial court to determine the injuries to
have been inflicted in the present occurrence, whereas Respondent
No. 1 and 2/ Abdul Hadi and Syed Ali co-accused were charged for
giving kicks and fists blows to the complainant party, but the
prosecution has failed to prove the case against them, hence this
petition, too, being meritless, is dismissed as such and leave refused.
We have observed that there exist some confusion and
misconception of law regarding Chapter-XVI (“Offences Affecting the
Human Body”) of the Pakistan Penal Code, 1860 (“PPC”) and the Code
of Criminal Procedure, 1898 (“Cr.P.C.”) in the legal and judicial
system in the Province of Balochistan, dealing with the matters noted
above as they still use the repealed provisions of law. For the first
time, the provisions relating to Qisas and Diyat were introduced in
PPC and Cr.P.C. by the Criminal Law (Second Amendment)
Ordinance, 1990 (Ordinance VII of 1990) commonly known as Qisas
& Diayt Ordinance. This Ordinance though was repealed by a
subsequent Ordinance, i.e. the Criminal Law (Second Amendment)
Ordinance, 1991 (Ordinance I of 1991) but the same provisions were
also re-enacted in the PPC and Cr.P.C. through the same Ordinance.
This process of repeal and re-enactment continued till Ordinance
CXIII of 1996 and finally before expiry of Ordinance CXIII of 1996, the
provisions of law relating to Qisas and Diyat were permanently made
Crl.P.35-Q/2017, etc
6
part and parcel of Pakistan Penal Code, 1860 (PPC) and Code of
Criminal Procedure, 1898 (Cr.P.C.) vide Criminal Law (Amendment)
Act, 1997 (Act II of 1997). The Chapter XVI was accordingly made
part of Pakistan Penal Code (PPC) applicable throughout Pakistan.
Mentioning of such offences under any of such Ordinances (being
repealed one) instead of PPC/Cr.P.C. is not only unlawful but a grave
misconception of law. All the concerned Departments i.e. LAW and
PROSECUTION; (i) Secretary, Ministry of Law & Justice, Govt. of
Pakistan, Islamabad; (ii) Secretary, Law and Parliamentary Affairs
Department, Govt. of Balochistan, Quetta; and (iii) Secretary, Prosecution
Department, Govt. of Balochistan, Quetta and the Courts should
rectify this mistake and should also be vigilant in this regard in
future. Copies of this Order be accordingly sent to all the concerned.
Judge
Judge
Islamabad,
19th February, 2021
Sarfraz /-
‘APPROVED FOR REPORTING’
|
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|
IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE IJAZ UL AHSAN
MR. JUSTICE MUNIB AKHTAR
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
CRIMINAL PETITION NO. 352-L OF 2022
(On appeal against the order dated 14.02.2022
passed by the Lahore High Court, Lahore in Crl.
Misc. No. 8593-B/2022)
Muhammad Umar Waqas Barkat Ali
… Petitioner
Versus
The State and another
… Respondents
For the Petitioner:
Mr. Khalid Masood Sandhu, ASC a/w petitioner
For the State:
Mirza Muhammad Usman, DPG
Mr. Hassan Farooq, DSP
Mr. Abdul Razzaq, ASI
Date of Hearing:
23.11.2022
JUDGMENT
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through the instant petition
under Article 185(3) of the Constitution of Islamic Republic of Pakistan,
1973, the petitioner has assailed the consolidated order dated 14.02.2022
(separate order dated 21.02.2022) passed by the learned Single Judge of
the learned Lahore High Court, Lahore, with a prayer to grant pre-arrest
bail in a cross-version recorded under Sections 337-A(i)/337-A(ii)/337-
F(v)/354/148/149 PPC in case registered vide FIR No. 990/2021 dated
20.11.2021 under Sections 337-A(iii)/337-F(i)/337-F(v)/337-L(ii)/148/149
PPC at Police Station Mustafaabad, District Kasur, in the interest of safe
administration of criminal justice.
2.
Briefly stated the allegation against the petitioner is that on
17.11.2021 at about 12:15 pm, he along with co-accused while armed with
firearms launched an attack on the complainant party and inflicted a rifle
butt blow on the forehead of the complainant of the cross-version namely
Muhammad Aslam. Co-accused Tahir Mehmood was also ascribed an
Criminal Petition No. 352-L/2022
-: 2 :-
injury at the left arm below elbow of the complainant, which was allegedly
caused by a butt blow of pistol. However, during investigation, the same
was also attributed to the present petitioner. The motive behind the
occurrence was that allegedly the petitioner wanted to take forcible
possession of the land belonging to the complainant.
3.
At the very outset, it has been argued by learned counsel for
the petitioner that the petitioner has been falsely roped in this case
against the actual facts and circumstances. Contends that the father of the
petitioner namely Barkat Ali had lodged the FIR against the complainant of
the cross-version and as a counterblast the instant cross-version was
recorded. Contends that two brothers of the petitioner had also received
serious injuries during the occurrence. Contends that the cross-version
was recorded with an inordinate delay of six days, which speaks volumes
against its authenticity. Contends that it is a case of two versions and it is
yet to be determined, which party was aggressor. Contends that a false
and frivolous story has been concocted in the cross-version just to harass,
humiliate and blackmail the petitioner’s party. Lastly contends that the
case of the petitioner requires further inquiry within the meaning of
Section 497(2) Cr.P.C., therefore, he may be granted bail.
4.
On the other hand, learned Law Officer has defended the
impugned order. It has been contended that the petitioner is specifically
nominated in the cross-version for causing injuries on the person of the
complainant, therefore, he does not deserve any leniency by this Court.
5.
We have heard learned counsel for the parties at some
length and have perused the available record with their able assistance.
There is no denial to this fact that it was the father of the
petitioner Barkat Ali, who had firstly lodged FIR No. 990/2021 under
Sections 337-A(iii)/337-F(i)/337-F(v)/337-L(ii)/148/149 PPC against the
complainant of the cross-version namely Muhammad Aslam and his co-
accused wherein he alleged that the said Muhammad Aslam and co-
Criminal Petition No. 352-L/2022
-: 3 :-
accused have severely beaten his two sons Rana Amir and Rana Nasir and
caused several injuries on their bodies. The medico legal certificates
available on record prima facie support the accusation. It was after six
days of the incident that Muhammad Aslam lodged the cross-version
wherein he nominated the present petitioner. It is the stance of the
petitioner that in-fact the complainant party was the aggressor and they
have just exercised their right of self-defence. In the cross-version, the
complainant had ascribed the injury on his left arm below elbow to the co-
accused Tahir Mehmood. However, during investigation, the stance of the
complainant was found to be not true. Although, the said injury was
attributed to the present petitioner but nonetheless, it raises serious
question about the veracity of the complainant’s allegations. The opinion
of the Investigating Officer regarding the overt act of the petitioner has to
be evaluated after recording of evidence as an abundant caution. In this
view of the matter, the possibility of false implication just to pressurize the
petitioner’s side to gain ulterior motives cannot be ruled out. Otherwise, it
has been held by this Court in various judgments that merits of the case
can be touched upon while adjudicating extraordinary relief of pre-arrest
bail. Reliance is placed on Miran Bux Vs. The State (PLD 1989 SC 347), Sajid
Hussain @ Joji Vs. The State (PLD 2021 SC 898), Javed Iqbal Vs. The State
(PLD 2022 SCMR 1424) & Muhammad Ijaz Vs. The State (2022 SCMR
1271). In these circumstances, it is the Trial Court who after recording of
evidence would decide about the guilt or otherwise of the petitioner and
until then he cannot be put behind the bars for an indefinite period. It is
settled law that liberty of a person is a precious right, which has been
guaranteed under the Constitution of Islamic Republic of Pakistan, 1973,
and the same cannot be taken away merely on bald and vague allegations.
It is a case of two versions and it is established principle of law that where
there is a case of two versions narrated before the Court, it squarely falls
within the ambit of Section 497(2) Cr.P.C.
6.
For what has been discussed above, we convert this petition
into appeal, allow it, set aside the impugned order dated 14.02.2022 to
Criminal Petition No. 352-L/2022
-: 4 :-
the extent of the petitioner and confirm the ad interim pre-arrest bail
granted to the petitioner by this Court vide order dated 08.11.2022. The
above are the detailed reasons of our short order of even date.
JUDGE
JUDGE
JUDGE
Islamabad, the
23rd of November, 2022
Approved For Reporting
Khurram
|
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"url": ""
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|
IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE IJAZ UL AHSAN
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
CRIMINAL PETITION NO. 358-L OF 2022
(Against the order dated 14.02.2022 passed by the
Lahore High Court, Lahore in Crl. Misc. No. 933-B/2022)
Rana Muhammad Imran Nasrullah
…Petitioner(s)
Versus
The State etc
…Respondent(s)
For the Petitioner(s):
Mr. Saeedullah Khan, ASC
(via video link from Lahore)
For the Respondent (2):
Rana Muhammad Zahid, ASC
Syed Rifaqat Hussain Shah, AOR
For the State:
Mirza Muhammad Usman, DPG
Mr. Asif Ali Shah, DSP
Rana Abdul Ghafoor, SI
Mr. Muhammad Afzal, ASI
Date of Hearing:
23.08.2022
ORDER
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through the instant petition
under Article 185(3) of the Constitution of Islamic Republic of Pakistan,
1973, the petitioner has assailed the order dated 14.02.2022 passed by
the learned Single Judge of the Lahore High Court, Lahore, with a prayer to
grant pre-arrest bail in case registered vide FIR No. 701/2021 dated
27.08.2021 under Sections 337-H(ii)/506(ii)/148/149 PPC & 440 PPC
(reportedly added later on) at Police Station City Toba Tek Singh, in the
interest of safe administration of criminal justice.
2.
Briefly stated the prosecution story as set out in the crime
report is that on 12.08.2021 at about 04.00 P.M., the complainant along
CRIMINAL PETITION NO. 358-L/2022
-: 2 :-
with his son and laborers was present on his plot and was raising
construction over it when suddenly the petitioner along with his co-
accused while armed with firearms came there, raised lalkara to leave the
plot, demolished the newly constructed wall and extended threats of dire
consequences to him. When the petitioner was forbidden by the
complainant, he and his co-accused made straight fires on the son of the
complainant, which luckily did not hit him.
3.
At the very outset, it has been argued by the learned counsel
for the petitioner that the petitioner has been falsely roped in this case
against the actual facts and circumstances due to mala fides of the
complainant in connivance with local police. Contends that the plot, which
is the root cause of the occurrence, does not belong to the complainant
and the petitioner is in possession of sale deed as well as a decree in his
favour. Contends that civil litigation between the parties is pending
adjudication and the present case is an attempt to pressurize the
petitioner to gain ulterior motives. Contends that all the offences except
Section 440 PPC are bailable in nature. Contends that Section 440 PPC is
not applicable as the petitioner is owner of the property in dispute. Lastly
contends that the petitioner deserves to be granted the extraordinary
concession of pre-arrest bail in the interest of justice.
4.
On the other hand, learned Law Officer assisted by learned
counsel for the complainant have defended the impugned order. It has
been contended that the petitioner has specifically been nominated in the
crime report with a specific allegation of trespassing into the plot of the
complainant, demolishing the newly erected wall and making straight fires
on the son of the complainant. It has further been contended that
according to the report of the Deputy Commissioner Toba Tek Singh, the
complainant is the owner of the plot in question, therefore, the petitioner
does not deserve any leniency by this Court.
5.
We have heard learned counsel for the parties at some
length and have perused the available record with their able assistance.
CRIMINAL PETITION NO. 358-L/2022
-: 3 :-
As per the contents of the crime report, the allegation
against the petitioner is that he along with co-accused while armed with
firearms went on the plot of the complainant, demolished the newly
raised construction, extended threats of dire consequences to him and
made straight fires on his son, which luckily did not hit him. However, it is
the stance of the petitioner that he is owner of the plot in question where
the occurrence took place; he is in possession of requisite title documents
and in-fact the complainant party was the aggressor. It is admitted
position that a suit for declaration qua the plot in question is still pending
adjudication before the court of competent jurisdiction. In this view of the
matter, the possibility of false implication just to pressurize the
petitioners’ side to gain ulterior motives cannot be ruled out. However, at
this stage, we do not want to comment on this aspect of the matter, lest it
may prejudice the case of either of the party. It is the Trial Court who after
recording of evidence would decide about the guilt or otherwise of the
petitioner and until then the petitioner cannot be put behind the bars for
an indefinite period. It is settled law that liberty of a person is a precious
right, which has been guaranteed under the Constitution of Islamic
Republic of Pakistan, 1973, and the same cannot be taken away merely on
bald and vague allegations. All the offences in the crime report except
Sections 506(ii) and 440 PPC are bailable. So far as ‘criminal intimidation’ is
concerned, the same has been defined in Section 503 PPC in the following
words:-
“503. Criminal Intimidation: Whoever threatens another with any injury
to his person, reputation or property, or to the person or reputation of
any one in whom that person is interested, with intent to cause alarm to
that person, or to cause that person to do any act which he is not legally
bound to do, or to omit to do any act which that person is legally entitled
to do, as the means of avoiding the execution of such threat, commits
criminal intimidation.”
6.
A bare perusal of the afore-quoted provision of law makes it
clear that whenever an overt act is materialized and ended into an overt
act, the provision of Section 506(ii) PPC would not be applicable and the
only provision which will remain in the field is the overt act, which is
committed in consequence of criminal intimidation. In the present case,
the provision of Sections 337-H(ii)/148/149 PPC have been alleged against
CRIMINAL PETITION NO. 358-L/2022
-: 4 :-
the petitioner, which is bailable in nature. As far as Section 440 PPC is
concerned, the same was added at a belated stage and the application of
the same would be resolved by the Trial Court after recording of evidence.
It is now established that while granting pre-arrest bail, the merits of the
case can be touched upon by the Court. Reliance is placed on Miran Bux
Vs. The State (PLD 1989 SC 347) and Sajid Hussain @ Joji Vs. The State (PLD
2021 SC 898). Taking into consideration all the facts and circumstances
stated above, we are of the view that the case of the petitioner squarely
falls within the ambit of Section 497(2) Cr.P.C. entitling for further inquiry
into his guilt.
6.
For what has been discussed above, we convert this petition
into appeal, allow it, set aside the impugned order dated 14.02.2022 and
confirm the ad interim pre-arrest bail granted to the petitioner vide this
Court’s order dated 28.06.2022.
JUDGE
JUDGE
Islamabad, the
23rd of August, 2022
Approved For Reporting
Khurram
|
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mushir Alam
Mr. Justice Sardar Tariq Masood
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.36-Q of 2012
(Against judgment dated 25.4.2012 passed
by Balochistan High Court, Quetta in
Cr. Appeal No.375/2009 along with MR
No.25/2009)
Dad Muhammad
…Petitioner(s)
Versus
The State
…Respondent(s)
For the Petitioner(s):
Ms. Aisha Tasneem, ASC
For the State
Mr. Baqar Shah, ASC/State Counsel
Date of hearing:
6.11.2019
JUDGMENT
Qazi Muhammad Amin Ahmed, J. Dad
Muhammad, petitioner, indicted for being privy in the
murder of Mst. Ayesha, no other than his real daughter, in
connivance with his absconding son-in-law Muhammad
Ismail alongside two other unknown culprits, was returned
a guilty verdict by a learned Additional Sessions Judge at
Kalat vide judgment dated 13.11.2009; convicted under
Clause (b) of Section 302 of the Pakistan Penal Code,
1860,
he
was
sentenced
to
death,
altered
into
imprisonment for life with pre-trial commutation, vide
impugned judgment dated 25.4.2012 by a Division Bench
of High Court of Balochistan, Quetta, vires whereof are
being challenged with a delay of 30 days, condoned in the
interest of justice in view of corporal consequences of the
conviction.
2.
It is alleged that the deceased, blamed for being
unchaste, was strangulated to death both by petitioner’s
son Taj Muhammad as well as son-in-law Muhammad
Criminal Petition No.36-Q of 2012
2
Ismail with the assistance of unknown co-accused, during
the night intervening 15/16-7-2009 whereafter she was
burried within the area of Shekhri at an unspecified place.
It is prosecution’s case that subsequently the corpse was
disinterred by the accused and thrown into a well,
wherefrom it was discovered, pursuant to petitioner’s
disclosure; according to the autopsy findings recorded by
Dr. Sadia Sarwar (PW-6), it was a decomposed body with
unidentifiable facial features; barring a fracture in the
skull and a ligature mark around the neck, no other sign
of
violence
was
observed
by
the
Medical
Officer;
strangulation was opined as cause of death. In order to
drive home the charge, prosecution has primarily relied
upon the evidence of motive and disclosure, leading to the
recovery of dead body; according to statement of Pir
Muhammad (PW-4), the accused had confronted the
deceased on the following day of her marriage to inquire
about her affair with her cousin Abdul Manan; she
vanished subsequently, to be finally found lying dead in a
well as testified by Naqib Ullah, ASI (PW-5). The petitioner
confronted the prosecution evidence by entering the
witness-box in disproof of the charge; cross-examination
comprises denied suggestions alone.
3.
Heard.
4.
Homicidal death of a teenage girl, that too, on the
following day of her marriage on the suspicion of her being
unchaste, though shockingly abhorrent, nonetheless, we
have not been able to find any piece of evidence to even
obliquely connect the petitioner with the crime; evidence of
discovery of dead body, in the wake of a disclosure, when
examined in its totality also fails to sustain the charge
inasmuch as it is prosecution’s own case that the
deceased was deceitfully taken to the venue where after
her murder, she was burried in a graveyard. It is quite
intriguing as to why the accused after they had
surreptitiously accomplished their purpose, disinterred the
corpse, so as to dump it once again in a well. Ghulam Ali
Criminal Petition No.36-Q of 2012
3
(PW-2), a witness of discovery of dead body, did not utter a
single word about any disclosure. Statement of Manzoor
Ahmad, SHO (PW-1) is hit by Article 38 of the Qanun-e-
Shahdat Order, 1984 and, thus, is liable to be excluded
from consideration. Volume and standard of evidence,
even otherwise, is far from being sufficient to sustain the
capital charge. The petitioner had picked up the courage to
enter the witness-box in disproof of the charge; on oath
and with vehemence, he denied his complicity in the crime
and prosecution encountered him merely with bald
suggestions alone, each denied. In this backdrop, it would
be grievously unsafe to maintain the conviction without
potential risk of error. Criminal Petition is converted into
appeal; allowed; impugned judgment is set aside; the
appellant is acquitted of the charge and shall be released
forthwith, if not required in any other case.
Judge
Judge
Judge
Islamabad
6th November, 2019
Azmat/-
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
MR. JUSTICE SAJJAD ALI SHAH
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
CRIMINAL PETITION NO.368 OF 2020
(Against the order of the Peshawar High
Court,
Peshawar
dated
06.04.2020
passed in Cr. M.B.A No.392-P/2020)
Mukaram
… Petitioner
Versus
The State and another
… Respondents
For the Petitioner
For the Complainant
:
Mian Shafaqat Jan, ASC
Syed Rifaqat Hussain Shah AOR
Nemo
For the State
:
Arshad Hussain Yousafzai, ASC
Date of Hearing
:
06.05.2020
ORDER
SAYYED MAZAHAR ALI AKBAR NAQVI, J:- Petitioner
has assailed the jurisdiction of this Court under Article 185(3) of
the Constitution of Islamic Republic of Pakistan, 1973 challenging
the order of the learned Peshawar High Court, Peshawar dated
06.04.2020 with the prayer to grant leave against the order and to
release the petitioner on bail in the interest of justice.
2.
The petitioner alongwith others was involved in case
bearing FIR No.728/2016 dated 11.06.2016, under Section
302/324/34 PPC, registered with police station Nowshera Kalan,
District Nowshera.
Criminal Petition No. 368 of 2020.
-:2:-
As per allegation contained in the crime report, it is
alleged that the complainant was cultivating in his fields, at the
same time, the petitioner alongwith three others duly armed with
firearm, attracted to the place and resorted to indiscriminate firing.
The father of the complainant sustained solitary injury which
proved fatal. The motive behind the occurrence was previous
hostility between the parties. The petitioner alongwith others
remained absconder for considerable time. After lapse of four
years, he was taken into custody. The petitioner applied for post
arrest bail before the learned trial court which was dismissed vide
order dated 19.02.2020. The order of learned Addl: District &
Sessions Judge-II, Nowshera was assailed before learned Peshawar
High Court, Peshawar through Crl. Miscellaneous Bail Application
No.392-P/2020 which was decided vide order dated 06.04.2020
while resulting into dismissal of bail application. Hence, the
instant petition.
3.
At the very outset, it has been argued by the learned
counsel for the petitioner that the prosecution has aggravated the
occurrence and had ascribed the role of causing firearm injures to
four persons with their respective weapons. Contends that the
deceased had sustained only one injury on his person which
resulted into his death but the same is generalized in nature and
has not been ascribed specifically to anyone. Contends that
although the occurrence had taken place in broad day light but
wider net has been thrown. Contends that though the petitioner
remained absconder for four years but absconsion itself is not
sufficient
to
established
guilt
unless
until
the
same
is
Criminal Petition No. 368 of 2020.
-:3:-
substantiated from a direct source qua overt act towards the
commission of offence. Contends that the petitioner is behind the
bar and no more required for further investigation hence, is
entitled for the relief as prayed for.
4.
On the other hand, learned law officer has stated that
the petitioner is nominated in the crime report with the allegation
of indulging into indiscriminate firing, however frankly conceded
that the deceased has sustained only one injury and even one
empty was recovered from the place of occurrence. He admitted
that the petitioner remained on physical remand but no recovery
has been affected from him. Finally, the learned law officer has
stated that as the rest of the accused persons are still at large,
therefore, the petitioner is not entitled for grant of bail.
5.
We have heard the learned counsel for the parties and
gone through the record.
6.
There is no denial to this fact that four persons are
involved in this case with allegations of causing indiscriminate
firing. The deceased sustained only one injury on his person which
prove fatal, such allegation in generalized in nature and no one can
be saddled with responsibility of causing injury to the deceased.
Further only one empty was recovered from the place of
occurrence. As far as the element of absconsion is concerned, it is
established principle of law that absconsion per se cannot be made
basis for refusal of bail in the absence of any overt act which has
contributed towards commission of the offence. The allegation
against the petitioner if evaluated in the instant case, he remained
Criminal Petition No. 368 of 2020.
-:4:-
on physical remand but no recovery has been affected from him,
hence the case of the petitioner squarely fall within the ambit of
section 497(2) Cr.P.C entitling him for the grant of post arrest bail,
otherwise liberty of a person is a precious right which cannot be
taken away without strong connectivity of accusation.
7.
In view of the facts and circumstances, we are
persuaded to grant leave to appeal in the instant petition while
converting it into appeal and the same is allowed. The petitioner
shall be released on bail subject to his furnishing bail bonds in the
sum of Rs.5,00,000/- with one surety in the like amount to the
satisfaction of the learned trial court/Duty Judge.
8.
Before parting with the order, it has been made clear
that the observations made hereinabove are tentative in nature
and it has no bearing during the course of proceedings before the
learned trial court.
Judge
Judge
Islamabad,
06.05.2020
Approved for reporting
Syed Rashid Maqsood
|
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Manzoor Ahmad Malik
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.370 of 2019
(Against judgment dated 11.03.2019 of the
Lahore High Court Multan Bench passed in
Crl. Appeal No.21/2018)
Mushtaq Ahmad
…Petitioner(s)
Versus
The State & another
…Respondent(s)
For the Petitioner(s):
Mr. Zulfiqar Khalid Maluka, ASC
For the State
Mr. Muhammad Jaffar,
Additional
Prosecutor
General,
Punjab.
Date of hearing:
09.1.2020.
JUDGMENT
Qazi Muhammad Amin Ahmed, J. Mushtaq Ahmed,
petitioner herein, surprised on a tip off by a police contingent,
within the remit of Police Station Mitroo District Vehari was
found in possession of 1460 grams of Charas along with weighing
apparatus with some amount; indicted before a learned
Additional Sessions Judge at Mailsi, he was returned a guilty
verdict; convicted under Section 9(c) of the Control of Narcotic
Substances Act, 1997, he was sentenced to four years R.I. with
fine,
under-trial
period
inclusive,
vide
judgment
dated
22.12.2017, upheld by a learned Division Bench of Lahore High
Court at Multan vide impugned judgment dated 11.03.2018,
vires whereof are being assailed on a variety of grounds, allegedly
a flawed forensic report, being most prominent. The learned Law
Officer has, contrarily, defended the impugned judgment.
2.
Heard. Record perused.
Criminal Petition No.370 of 2019
2
3.
Prosecution case is hinged upon the statements of
Aamir Masood, TSI (PW-2) and Abid Hussain, 336-C (PW-3);
being officials of the Republic, they do not seem to have an axe to
grind against the petitioner, intercepted at a public place during
routine search. Contraband, considerable in quantity, cannot be
possibly foisted to fabricate a fake charge, that too, without any
apparent reason; while furnishing evidence, both the witnesses
remained throughout consistent and confidence inspiring and as
such can be relied upon without a demur. Argument that forensic
report sans ‘protocol’ as mandatorily required in the case of State
Vs. Imam Bukhsh (2018 SCMR 2039) is beside the point and so
is reference to Rule 6 of the Control of Narcotic Substance (Govt.
Analysis) Rules, 2001, for the convenience of reference
reproduced below:-
“Report of result of test or analysis.—After
test or analysis the result thereof together
with full protocols of the test applied, shall be
signed
in
quadruplicate
and
supplied
forthwith to the sender as specified in
Form-II.”
The above requires reference to the test applied for analysis,
specifically mentioned in Form-II thereof. We have perused the
forensic
report,
relied
upon
by
the
prosecution,
which
substantially meets the legal requirements, in the following
terms:-
“Test Performed on Received Item(s) of Evidence
1. Analytical Balance was used for weighing.
2. Chemical Spot Tests
were used for
Presumptive Testing.
3. Gas Chromatography-Mass Spectrometry
was used for confirmation.
Results and Conclusions
Item # 01 72.87 gram(s) of blackish brown
resinous material in sealed parcel contains
Charas.”
Details mentioned in the forensic report regarding procedure/
tests applied do not fall short of ‘protocol’ as insisted by this
Criminal Petition No.370 of 2019
3
Court in the supra case. According to the Oxford English
Dictionary, 6th Edition, the expression ‘protocol’ in relation to a
forensic test means:-
“A
formal
or
official
statement
of
a
transaction or proceeding; spec. a record of
(esp. scientific) experimental observations”.
Forensic report (Ex.PE) realistically qualifies to meet the required
standards. Even otherwise, the Rule ibid, being directory in
nature, does not preclude an accused to summon the Expert so
as to solicit specific details, if any, required by him to vindicate
his position. Onus cast upon the prosecution to drive home a
criminal charge has to be weighed in the scales of rationality; it
cannot be required to satisfy adversarial positions farfetched and
artificial in nature, rooted into bald denials, clamoured loudly.
Findings concurrently arrived by the Courts below, being well
within the remit of law, do not call for interference. Petition fails.
Leave declined.
Judge
Judge
Islamabad
9th January, 2020
Not approved for reporting
Azmat/-
|
{
"id": "Crl.P.L.A.370_2019.pdf",
"url": ""
}
|
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mushir Alam
Mr. Justice Yahya Afridi
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition Nos.371 to 373 & 680 of 2020
(Against the judgment dated 2.4.2020 passed by the High Court of Sindh
at Karachi in Special Criminal Anti Terrorism Appeal Nos.66, 67 of 2002
and confirmation case No.12 of 2002)
AND
Crl. M.A. No.37-K & 38-K of 2020 in Crl.Ps. NIL/2020
(Permission to file and argue)
The State through P.G. Sindh
(in Crl. P. Nos.371 to 373/2020)
Ruth Pearl & another
(in Crl. M.A. Nos.37-K & 38-K/2020)
Ahmad Omer Shaikh
(in Crl. P. No.680/2020)
…Petitioner(s)
Versus
Ahmed Omer Shaikh
(in Crl. P. No.371/2020)
Fahad Nasim Ahmed & others
(in Crl. P. Nos.372 & 373/2020)
The State, etc.
(in Crl. M.A. Nos.37-K & 38-K/2020)
The State through P.G. Sindh
(in Crl. P. No.680/2020)
….Respondent(s)
For the Petitioner(s):
Mr. Farooq H. Naek, Sr.ASC assisted by
Dr. Faiz Rasool, Prosecutor General Sindh
Usman Walid Sheikh, Advocate
Mr. Hussain Bux Baloch, ADDL. P.G. Sindh
Mr. Adnan Shuja Butt, ASC
Mr. Muhammad Kassim Mirjat, AOR
(in Cr.P. Nos.371 to 373/2020)
Mr. Faisal Siddiqui, ASC assisted by
Sheza Ahmed, Advocate
(in Cr.M.A. Nos.37-K & 38-K/2020)
Nemo.
(in Cr.P. No.680/2020)
For the Respondent(s):
Nemo.
(in Cr.P. Nos.371 to 373/2020 & Cr.M.A. Nos.37-K & 38-K/2020)
Date of hearing:
28.09.2020.
Criminal Petition Nos.371 to 373 & 680 of 2020 and
Crl. M.A. No.37-K & 38-K of 2020 in Crl.Ps. NIL/2020
2
ORDER
Qazi Muhammad Amin Ahmed, J.-
Criminal Petition Nos.371 to 373 of 2020
Daniel Pearl, Bureau Chief of the Walls Street Journal, a U.S.
national, hereinafter referred to as the deceased, deputed on some
assignment in Pakistan, went missing on the 23rd of January, 2002;
disappearance was reported with Police Station Artillery Maidan South
Karachi by his wife Ms. Mariane Pearl at 11:45 p.m. on 4.2.2002. According
to the complainant, Nasir Abbas (PW-1), a cab driver, informed her to have
last dropped the deceased in front of “Village Restaurant” Karachi Saddar; she
received an email dated 27th of January, 2002, with the photographs of her
husband, enchained by his captors; they laid the following demands:
“(A) The provision of Lawyers to Pakistanis detained in US.
(B) The release of Pakistanis, jailed in CUBA to Pakistan.
(C)
The return of former TALIBAN AMBASSADOR MULLA
ZAEEF, to Pakistan, and
(D)
The return of F-16 FIGHTER JETS to Pakistan or The
repayment of money, allocated for those F-16 JETS,
as well as 15% interest.”
On 30th of January, 2002, the captors threatened to murder the hostage in
case their demands were not met within next 24 hours. As the deadline
expired without concession, the deceased was beheaded; to the horror of the
viewers; graphic details of the episode, recorded by a video camera, were
subsequently released to go viral.
2.
As the investigation progressed, 11 suspects were arrayed as
culprits for the crime; of them, Amjad Hussain Farooqi alias Haider Farooqi
alias Hassan Mansoor, Asim alias Qasim, Hashim alias Arif, Hassan, Ahmad
Bhai and Imtiaz Siddiqui along with an unknown companion, yet to be
identified, stayed away from law whereas Ahmad Omar Sheikh, Sheikh
Muhammad Adil, Syed Salman Saqib and Fahad Naseem respondents, were
arrested and ultimately indicted before an Anti Terrorism Court at Karachi.
The prosecution relied upon various pieces of circumstantial evidence that
included confessional statements of the two accused as well to drive home the
charge, on the basis whereof, the learned trial Judge vide judgment dated
15.7.2002 convicted the respondents under sections 120-A, 365-A, 302 of the
Pakistan Penal Code, 1860 read with section 6(a) of the Anti Terrorism Act,
1997; under section 7 of the Act ibid, Ahmad Omar Sheikh, respondent, was
sentenced to death whereas the remainders to imprisonment for life with fine
Criminal Petition Nos.371 to 373 & 680 of 2020 and
Crl. M.A. No.37-K & 38-K of 2020 in Crl.Ps. NIL/2020
3
of Rs.500,000/- or five years imprisonment in default of payment thereof; they
were jointly liable to pay Rs.20,00,000/- (equal share) to the widow of the
deceased; the lifers were extended benefit of section 382-B of the Code of
Criminal Procedure, 1898. However, a learned Division Bench of the High
Court of Sindh, while altering conviction of Ahmad Omar Sheikh under section
362 of the Code ibid with sentence of 7-years rigorous acquitted the
respondents from the remainder charges vide impugned judgment dated
02.04.2020, vires whereof, are being assailed by the State through Criminal
Petition Nos.371, 372 & 373 of 2020; parents of the deceased also questioned
the impugned acquittals through Criminal Misc. Application Nos.37-K & 38-K
of 2020 whereas Ahmad Omar Sheikh, convict, filed Criminal Petition No.680
of 2020 to assail his conviction and sentence on the solitary charge.
3.
Mr. Farooq H. Naek, Sr.ASC, designated by the Government of
Sindh to argue the case, contends that with a web of circumstances,
inescapably implicating the respondents with the commission of a crime,
most shocking, there was hardly an occasion to acquit them from the
charge, particularly when the High Court itself maintained conviction and
sentence on the charge of abduction qua Ahmad Omar Sheikh, recorded
by the learned trial Court alongside coordinate charges. It is next argued
that various incriminating pieces of evidence established, both through
physical as well as scientific means, constituted uninterrupted/
continuous chain that inexorably linked the deceased with the
respondents and their absconding colleagues; according to him, forensic
evidence, generated without any possibility of human interference,
conclusively proved the homicidal death subsequent to deceased’s
abduction, a charge upheld by the High Court itself, for purposes having
strong nexus with terrorism and, thus, acquittal from the coordinate
charges was not a possible option through any mode of appraisal of
evidence.
According to the learned counsel, the prosecution successfully
proved the conspiracy hatched at Rawalpindi on 11.01.2002, whereby the
deceased was induced to have his desired meeting with one Syed Mubarak
Ali Shah Jeelani and it was in this backdrop that he was subsequently
ensnared fatally at Karachi on a point of time, confirmed by one of the
prosecution witnesses. He further contends that in the contextual
backgrounds,
relevant
witnesses
identified
Ahmad
Omar
Sheikh
respondent whereas the source generating the emails was reached out
through forensic means, additionally associating internet service providers
Criminal Petition Nos.371 to 373 & 680 of 2020 and
Crl. M.A. No.37-K & 38-K of 2020 in Crl.Ps. NIL/2020
4
who appeared before the Court to successfully face the test of cross-
examination. The learned counsel has referred to the testimonies of Ronal
Joseph, technical expert, joined John Mulligan (PW-12), both F.B.I. agents
to bring on record the details of forensic proofs. Recovery of digital
apparatus i.e. laptop, scanner, polaroid as well as zoom cameras, used by
the accused to communicate with the deceased’s family, established a
continuous chain of circumstances unmistakably pointed upon the
culpability of the accused, additionally reinforced by the confessional
statements of the two accused, leaving no space for the High Court to
entertain any hypothesis other than respondents’ guilt, concluded the
learned counsel.
Mr. Faisal Siddiqi, ASC, while appearing on behalf of deceased’s
parents, reiterated most of the submissions earlier addressed; he
additionally argued that sentence awarded to Ahmad Omar Sheikh under
a penal provision though cited erroneously as section 362 of the Code ibid,
nonetheless, irresistibly suggested that the High Court, being convinced
about the abduction of the deceased, had convicted and sentenced the
respondent on the said charge, driven home through various pieces of
evidence that equally encompassed the concomitant conclusion of the
crime and as such the impugned view was not only self-destructive but
impossible as well and, thus, warrants interference to avoid miscarriage of
justice.
4.
Leave to appeal is granted, inter alia, to re-appraise the
evidence so as to consider the above contentions.
Cr.M.A. No.481 & 483 of 2020 in
Cr.P. Nos.371, and 372 of 2020
5.
Through the captioned criminal miscellaneous applications,
the State has prayed for suspension of the impugned judgment so as to
hold in abeyance respondents’ release during the pendency of the appeal.
Notice shall issue to the respondents. Till the next date of hearing, the
respondents shall not be released from the prison.
Criminal Petition No. 680 of 2020
6.
Ahmad Omar Sheikh, convict, has assailed his conviction and
sentence under section 362 of the Pakistan Penal Code, 1860 through the
captioned petition; his learned counsel Mr. Mahmood A. Sheikh, Sr.ASC,
reportedly indisposed, is not in attendance, however, in order to ensure
safe administration of criminal justice, we are inclined to grant leave in the
Criminal Petition Nos.371 to 373 & 680 of 2020 and
Crl. M.A. No.37-K & 38-K of 2020 in Crl.Ps. NIL/2020
5
titled petition with a view to consider as to whether after en bloc acquittal
of the co-accused and rejection of bulk of prosecution’s evidence, the High
Court was still justified to convict and sentence the petitioner in isolation
to the totality of charge.
Crl. M.A. No.37-K & 38-K of 2020 in Crl.Ps. NIL/2020
7.
Deceased’s parents have filed separate petitions to question
respondents’ acquittal, though maintainable in view of section 25 (4A) of
the Anti Terrorism Act, 1997, nonetheless, since leave has already been
granted to the State to examine the same questions, the criminal
miscellaneous applications are allowed; office is directed to number these
petitions and club the same with Cr. Petition Nos.371 to 373 of 2020 with
opportunity to the learned counsel to canvass his point of view as well.
8.
Re-list on 7.10.2020.
Judge
Judge
Judge
Islamabad, the
28th September, 2020
Not approved for reporting
Azmat/-
|
{
"id": "Crl.P.L.A.371_2020.pdf",
"url": ""
}
|
1
Crl.P.L.A. No. 382/2016
2
Crl.P.L.A. No. 382/2016
3
Crl.P.L.A. No. 382/2016
"For the reasons to be recordedm, the petitioners
are granted bail in case FIR No.875 dated
7.11.2015, PS Dawoodzai, Peshawar, subject to
furnishing sureties in the sum of Rs.2,00,000/-
each and P.R. Bonds in the like amount with two
sureties each to the satisfaction of the trial Court.
Petition is converted into appeal and
allowed."
4
Crl.P.L.A. No. 382/2016
|
{
"id": "Crl.P.L.A.382_2016.pdf",
"url": ""
}
|
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
MR. JUSTICE MUSHIR ALAM
MR. JUSTICE SARDAR TARIQ MASOOD
MR. JUSTICE AMIN-UD-DIN KHAN
CRIMINAL PETITION NO.390-L OF 2021
Against the order dated 25.02.2021 passed by Lahore
High Court, Lahore in Crl.Misc.-6413B/2021
Muhammad Qasim, etc
…Petitioner(s)
VERSUS
The State, etc
…Respondent(s)
For the Petitioner(s):
Mr. Rashad Javid Lodhi, ASC
For the State:
On Court call:
Mr. M. Usman, DPG Pb.
M. Rafique, ASI
Syed Ali Sibtain, Drug Inspector
Ali Raza, IO
Mr. Sajid Ilyas Bhatti, Addl. AGP
Rana Arif Kamal Noon, PG Pb.
Mr. Naveed Anwar, Drug Controller Rwp.
Date of Hearing:
11.06.2021
O R D E R
MUSHIR ALAM, J.— From the record, it appears that there is some
confusion and even the matter has been adjourned a number of time
to seek assistance from the learned Attorney General for Pakistan as
well as the learned Advocate General concerned as regard the
regulatory framework for the alternate medicines, it is recorded with
great concern and utmost dismay that neither the learned Additional
Attorney General nor the concerned Advocate General or even the
team of officers in attendance are clear in their minds as to how the
alternate medicines are properly brought into regulatory framework
and they vaguely are concerned as to manufacturing and import of
such alternate medicines. When inquired as to whether such
dispensers (Pensaris) and their sale points are registered?, more
specifically inquired about such outlets situated at Abpara Market in
Islamabad, which is a common sight, it is stated that they are neither
enlisted nor inspected to their knowledge. They have put the
responsibility on the task force constituted and comprises of selected
officers from all the Provinces. None of the officers present in Court are
aware of the responsibility as to who regulates such alternate
medicines.
2.
As regard the above matter, we direct the office to make a
separate file, register it as Suo Motu Case and place the same before
the Honourable Chief Justice for placing the same before an
appropriate Bench to consider the regulatory framework for such
alternate medicines, their dispensation either in raw form or in the
form of finishing products so as to ensure that people are not haunted
for being looted and harmed. There appears to be no awareness
amongst the persons involved in dealing with such products at
different levels.
3.
Coming to the merits of the instant bail matter. It appears
that the petitioners, Muhammad Qasim and Khurram Shahzad sons of
Anwar-u-Haq, seek bail in Crime No.950/2020 dated 03.10.2020, for
the offences under Sections 23 & 27 of the Drugs Act, 1976, Section
27-2 of the DRAP Act, 2012 and Section 109 PPC, registered at Police
Station Toba Tek Singh, on the allegation of their involvement in
manufacturing/stocking and selling the drugs/therapeutic goods in
violation of the laws of the land.
4.
Heard. Record perused.
5.
Although the learned prosecutor states that the medicines
in question fall within the definition of alternate medicines within
contemplation of Section 2(ii) of the DRAP Act, 2012, yet the principal
accused, Israr Ahmed has since been conceded bail.
CP 390-L/21
-2-
6.
Having gone through the available record, we find that the
present petitioners are still on the better footing, therefore, following
the rule of consistency, the petitioners are also conceded to bail
subject to furnishing of solvent surety bonds to the tune of
Rs.100,000/- (rupees one hundred thousand) each with one surety
each to the satisfaction of the learned Trial Court.
7.
Needless to state that any observation contained in this
order is of tentative nature and the learned Trial Court shall decide the
main case in accordance with law without being influenced from any
observation contained therein. The petitioners are directed to extend
full co-operation with the prosecution/investigation and in the
proceedings regularly and in case any misuse and abuse of concession
of bail is found on their part, the learned Trial Court is at liberty to
cancel the petitioners’ bail.
8.
The petition is converted into an appeal and allowed in the
terms noted above.
Judge
Judge
Judge
ISLAMABAD
11th June, 2021
Mudassar/ “Not approved for reporting”
CP 390-L/21
-3-
|
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"url": ""
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|
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Umar Ata Bandial
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.391 of 2020
(Against judgment dated 6.4.2020 passed by the
Peshawar High Court Bannu Bench, Bannu in
B.A. No.138-B/2020)
Shabran Khan
…Petitioner(s)
Versus
The State & another
…Respondent(s)
For the Petitioner(s):
Mr. Aftab Alam Yasir, ASC
For the State:
Mr. Anis M. Shahzad, ASC
along with M. Asghar, I.O.
Date of hearing:
06.05.2020.
ORDER
Qazi Muhammad Amin Ahmed, J.- Behind Bars since
30.12.2019, Shabran Khan, petitioner, seeks admission to bail; he is
blamed to have conspired murder of Muhammad Iqbal, 48/49, on
27.10.2019 within the remit of Police Station University, Dera Ismail
Khan. Deceased’s nephew attended the casualty in the hospital and
conveyed information to his uncle Malik Muhammad Ismail who lodged
formal First Information Report wherein Latifullah son of Allah Wasaya
along with Saif-ur-Rehman Inspector and his brother Asghar were
arrayed as suspects in the backdrop of a motive that related to
attempts to take forcible possession of immovable property, a move
fiercely resisted by the deceased. Abdul Latif and Asghar were arrested,
however, subsequently released on bail as they were substituted by Dil
Jan accused who allegedly admitted to have committed the murder
along with one Inayat Ullah on petitioner’s direction with a .30 caliber
pistol provided by him for the purpose.
2.
Heard. Record perused.
3.
Complainant restructured his case through statement
dated 17.12.2019; Latifullah, Saif-ur-Rehman and Asghar, initial
suspects, stood replaced with Inayatullah and Dil Jan being the alleged
assassins. Aman Ullah is inducted as a facilitator on behalf of the
Criminal Petition No.391 of 2020
2
petitioner, introduced as architect behind the crime with a motive.
To frame the de novo set up, the Investigating Officer produced three
witnesses before a Magistrate who recorded their statements pointed
upon the accused. A .30 caliber pistol, licensed to Dil Jan accused, is
part of prosecution inventories. It would be less than expedient to
comment upon the merits of the prosecution case as its fate is to be
essentially settled by the trial Court after recording of evidence,
nonetheless, in the given backdrop, petitioner’s culpability as the man
behind the scene certainly warrants further probe and as such his case
squarely falls within the remit of subsection 2 of section 497 of the
Code of Criminal Procedure 1898. Criminal Petition is converted into
appeal and allowed. Petitioner is admitted to bail and shall be released
upon furnishing bond in the sum of Rs.500,000/- with one surety in
the like amount to the satisfaction of the learned trial Court/Duty
Judge.
Judge
Judge
Islamabad, the
6th May, 2020
Not approved for reporting
Azmat/-
|
{
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|
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Sardar Tariq Masood
Mr. Justice Mazhar Alam Khan Miankhel
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.406 of 2017
(Against the judgment dated 24.02.2017 of the Lahore High Court,
Rawalpindi Bench passed in Cr.A.404/2011 and MR No.66/2011)
Noor Zaman
…Petitioner(s)
Versus
The State
…Respondent(s)
For the Petitioner(s):
Ch. Afrasiab Khan, Sr. ASC
Sh. Ahsan ud Din, ASC
Ch. Akhtar Ali, AOR
For the State:
Mr. Muhammad Jaffar,
Addl. P.G. Punjab
Date of Hearing
22.02.2022.
JUDGMENT
Qazi Muhammad Amin Ahmed, J.:- Muhammad Irfan,
50, along with his wife Rafia Begum, 45, was attending Khan
Muhammad accompanied by his brother Fateh Muhammad inside his
house located within the precincts of Police Station Saddar Talagang,
at 6:30 p.m. on 12.3.2009 when Noor Zaman petitioner armed with a
.30 caliber pistol surprised them; aggrieved over denial of some piece of
land by Muhammad Irfan, no other than his real brother, the
petitioner targeted him with repeated fire shots; Rafia Begum rushed
inside a room to save herself, however, the petitioner followed and
dealt her 5/6 fire shots; brandishing the weapon, he left the premises,
followed by the witnesses, to come across Halima Bibi, 30/35, in the
lane to confront his wrath, she was shot on different parts of her body.
The petitioner took to the heels while the casualties were shifted to
THQ Hospital Talagang; Rafia Bibi died at the spot, Muhammad Irfan
succumbed to the injuries following day whereas Mst. Halima Bibi on
22.3.2009.
Investigation commenced on the complaint of Khan Muhammad
Criminal Petition No.406 of 2017 2
(PW-15). Inspection of crime scenes include seizure of blood from
different points, forensically opined as of human origin; 12 casings
collected from different points were found wedded with the pistol (P-6),
recovered pursuant to a disclosure by the accused subsequent to his
arrest on 5.5.2009.
Upon indictment, the petitioner claimed trial; the learned trial
Judge vide judgment dated 26.09.2011 returned a guilty verdict on
three counts of homicide; convicted under clause (b) of section 302 of
the Pakistan Penal Code, 1860, he was sentenced to death on each
with a direction to pay compensation, confirmed/upheld vide
impugned judgment dated 24.02.2017, leave to appeal wherefrom is
being prayed on the grounds that colossal loss of lives,
notwithstanding, there was no occasion for the trial Judge to convict
the petitioner on capital charge with ultimate penalty in the absence of
“proof beyond doubt” inasmuch as in the totality of circumstances
neither there was any occasion for the witnesses to be at the spot nor
they could escape unscathed as per case set up by the prosecution
itself; it is next argued that dispatch of casings coincides with the date
of petitioner’s arrest and as such positive forensic report cannot be
viewed as a corroborative support. Motive was not put to the petitioner
and it is so observed by the High Court itself and, thus, the failure of
the prosecution on this count not only tremors the entire prosecution
structure but also constitute a mitigating circumstance to alter penalty
of death into imprisonment for life, concluded the learned counsel. The
learned Law Officer has faithfully defended the impugned judgment; he
argued that occurrence, a daylight affair, in a small hamlet, the
preponderance of prosecution evidence left no space to entertain any
hypothesis other than petitioner’s guilt. An inconsequential omission
regarding the motive does not mitigate enormity of offence that cost
three innocent persons their lives, two in their prime youth, over a
petty cause.
2.
Heard. Record perused.
3.
Misfortune
struck
close
members
of
the
family;
Muhammad Irfan deceased was real brother of the petitioner whereas
his wife Rafia Bibi, a sister-in-law; third victim Haleema Bibi, being
wife of Muhammad Zaman, is related with the deceased in the same
degree; litigation raging between the petitioner and Muhammad Irfan
heavily cost the family, division wherein is an obvious aftermath. On
Criminal Petition No.406 of 2017 3
the other side of the divide, Khan Muhammad (PW-15) and Fateh
Muhammad (PW-16), real brothers inter se are, nonetheless, members
of the same clan; both of them pointed their fingers singularly upon
the petitioner as being the sole perpetrator of the crime. We have gone
through their statements to find them in a comfortable unison on all
the salient details of the occurrence as well as issues collateral
therewith; being resident of the same neighbourhood, their presence
cannot be doubted merely on the ground that Fateh Muhammad
(PW-16) was busy in the marriage ceremony of his son on the fateful
day and, thus, according to the learned counsel, had no occasion to
visit the deceased. The learned counsel has taken us through a portion
of cross-examination, best viewed as half cooked inasmuch as it sans
relevant timing and details regarding the marriage ceremony so as to
entertain hypothesis of his exclusion from the scene. Similarly, old age
and weak eye sight with frail health do not reflect upon his credentials
as a truthful witness at the age of 65 to hypothesize mistaken identity
of a close relative, figuring singularly on the scene. Preponderance of
ocular account, being consistent with medical evidence and durations
given therein, in itself constitute “proof beyond doubt” inescapably
pointed upon petitioner’s culpability. Proved to the hilt, it is an open
and shut case. Petitioner’s plea that the deceased fell victim to
celebratory fires in the marriage ceremony is a story too preposterous
to find a buyer given the points dead bodies were found during the
spot inspection, locations confirmed through seizure of blood.
Alternate plea of lesser penalty in view of omission to put motive
to the accused in his examination under section 342 of the Code of
Criminal Procedure, 1898 or dispatch of casings on the day of
petitioner’s arrest are the issues entirely beside the mark. Examination
of accused under section 342 of the Code is not a dogmatic ritual
involving
vitiating
impact;
the
fundamental
purpose
of
such
examination is to enable the accused to explain any circumstance
appearing in the evidence against him and that may be done at any
stage of inquiry or trial without previous warning and the accused is
under no obligation even to respond to that; it is essentially a
communication between accused and the Judge. The underlying
purpose is not to take the accused by surprise; he must be aware of
the accusation and material being adduced in support thereof. The
record shows that the petitioner was fully aware of the motive set up
by the prosecution; his counsel specifically cross-examined the
Criminal Petition No.406 of 2017 4
witnesses about the ongoing dispute. See Khan Muhammad (PW-15),
“…….there was no dispute of Haleema with Noor Zaman accused in any
capacity. Rafia deceased had no litigation with Noor Zaman in an independent
capacity but her husband Irfan was in litigation with Noor Zaman accused.
During the whole investigation, we never produced any document relating to
the litigation between Noor Zaman and Muhammad Irfan deceased. During the
investigation, no disputed land between Noor Zaman accused and Irfan
deceased was shown to the I.O. ……. I do not know the nature of dispute
between accused and Muhammad Irfan deceased”. Similarly, while cross-
examining Fateh Muhammad (PW-16), the witness responded to a
query regarding motive “It was in my knowledge that there was litigation
between Irfan and Noor Zaman. We did not give any copy of the litigation to the
police during investigation.” Thus, it is not open to the defence that the
petitioner did not know as to why he was in the dock. It is high time to
get out of the quagmire of hyper technical past so as to adopt a more
realistic and dynamic approach to ensure an effective administration of
criminal justice, a sine qua non to maintain peaceful equilibrium in
the society; an inconsequential lapse or failure to observe a procedural
formality without causing prejudice or handicap to an accused in his
defence cannot be allowed to deny justice to the victim of crime.
Similarly, presumption of genuineness is attached to the official acts
both under article 129 (e) of the Qanun-i-Shahadat Order, 1984 as
well as under Article 150 of the Constitution of the Islamic Republic of
Pakistan, 1973, supreme law of the land and, thus, in the absence of a
positive proof to the contrary, pleaded specifically, a delayed dispatch
by itself cannot be viewed with suspicion. Three innocent persons
including two women in their prime youth have been done to death
with repeated fire shots, two in the safety of their home, in a manner
most callous and brute, thus, the wage settled is conscionable in
circumstances; scales are in balance. No interference is called for.
Petition fails. Leave declined.
Judge
Judge
Judge
Islamabad, the
22nd February, 2022
Azmat/-
|
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE YAHYA AFRIDI
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
MR. JUSTICE MUHAMMAD ALI MAZHAR
CRIMINAL PETITION NOs. 41-K & 42-K OF 2023
(On appeal against the order dated 30.01.2023 passed by the
High Court of Sindh, Sukkur in Crl. Bail Application Nos. S-
678/2022 & S-32/2023)
Jamaluddin
Rabail
(In Cr.P. 41-K/2023)
(In Cr.P. 42-K/2023)
… Petitioners
Versus
The State
(In both cases)
… Respondent
For the Petitioners:
Mr. Zuber Ahmed Rajput, ASC a/w Jamaluddin,
petitioner in person
(Via video link from Karachi)
For the State:
Mr. Hussain Bukhsh Baloch, Addl. P.G. Sindh
Date of Hearing:
29.05.2023
ORDER
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through the instant petitions
under Article 185(3) of the Constitution of Islamic Republic of Pakistan,
1973, the petitioners have assailed the order dated 30.01.2023 passed by
the learned Single Judge of the learned High Court of Sindh, Bench at
Sukkur, with a prayer to grant pre-arrest bail (in Criminal Petition No. 41-
K/2023) and post-arrest bail (in Criminal Petition No. 42-K/2023) in case
registered vide FIR No. 317/2022 dated 21.11.2022 under Sections
324/148/149 PPC at Police Station Shaheed Murtaza Meerani, Khairpur, in
the interest of safe administration of criminal justice.
2.
Briefly stated the allegation against the petitioners is that
they along with co-accused while armed with firearms launched a
murderous assault on the complainant party. The petitioner Rabail made a
straight fire on the complainant Kaleemullah, which hit on his left leg
whereas the petitioner Jamaluddin caused firearm injury at the left ankle
of Muhammad Pariyal, cousin of the complainant.
CRIMINAL PETITION NOs. 41-K & 42-K OF 2023
2
3.
At the very outset, it has been argued by learned counsel for
the petitioners that the petitioners have been falsely roped in this case
against the actual facts and circumstances. Contends that the allegations
leveled against the petitioners are false, frivolous, baseless, concocted and
the prosecution story is not worthy of credit. Contends that there is an
inordinate delay of three days in lodging the FIR for which no explanation
has been given. Contends that injuries sustained by the complainant are
on non-vital parts of the body, as such, the provision of Section 324 PPC is
not attracted in the case. Contends that the learned High Court while
declining bail to the petitioners has not followed the guidelines issued by
this Court for the safe administration of criminal justice, therefore, the
same may be set at naught and the petitioners may be granted bail.
4.
On the other hand, learned Law Officer opposed the
petitions by contending that the petitioners have specifically been
nominated in the crime report with a specific role of firing at the
complainant and injured PW, therefore, they do not deserve any leniency
from this Court
5.
We have heard learned counsel for the parties at some
length and have perused the available record with their able assistance.
6.
As per the contents of the crime report, the allegation
against the petitioners is that they along with co-accused while armed
with firearms launched a murderous assault on the complainant party. The
petitioner Rabail made a straight fire on the complainant Kaleemullah,
which hit on his left leg whereas the petitioner Jamaluddin caused firearm
injury at the left ankle of Muhammad Pariyal, the cousin of the
complainant. There is no denial to this fact that the FIR was lodged after
an inordinate delay of about three days. The only explanation put forth by
the complainant is that firstly they got the Police letter for treatment from
Civil Hospital and after the treatment they lodged the FIR. However, this
explanation does not seem to be impressive, especially when the Police
was allegedly approached by the complainant on the very first day.
The complainant and the injured PW received injuries on the non-vital
CRIMINAL PETITION NOs. 41-K & 42-K OF 2023
3
parts of the body and the petitioners did not repeat the fire despite having
ample opportunity to do so. In this view of the matter, the question
whether Section 324 PPC would be applicable in the case or not would be
determined by the learned Trial Court after recording of evidence. As far
as the question which requires the attention of this Court is that petitioner
Jamaluddin has been granted ad interim pre-arrest bail by this Court
whereas the other petitioner Rabail has filed petition claiming post-arrest
bail. As far as the principle enunciated by this Court regarding the
consideration for grant of pre-arrest bail and post-arrest bail are entirely
on different footings is concerned, we have noticed that in this case both
the petitioners are ascribed the same role. For the sake of arguments if it
is assumed that the petitioner enjoying ad interim pre-arrest bail is
declined the relief on the ground that the considerations for pre-arrest bail
are different and the other is granted post-arrest bail on merits, then the
same would be only limited upto the arrest of the petitioner Jamaluddin
because of the reason that soon after his arrest he would be entitled for
the concession of post-arrest bail on the plea of consistency. Reliance is
placed on the cases reported as Muhammad Ramzan Vs. Zafarullah (1986
SCMR 1380), Kazim Ali and others Vs. The State and others (2021 SCMR
2086), Muhammad Kashif Iqbal Vs. The State and another (2022 SCMR
821) and Javed Iqbal Vs. The State through Prosecutor General of Punjab
and another (2022 SCMR 1424). The Courts of this country are not meant
to send the people behind the bars rather the purpose of the entire
judicial system is to protect the liberty of the citizen against whom
baseless accusation has been leveled keeping itself within the four corners
of the law. The rational behind this principle would be defeated if on a
technical ground a person is sent behind the bars. In Sharaf Faridi Vs.
Federation of Pakistan (PLD 1989 Karachi 404) it was held that “Judiciary
has been termed as a watch dog and sentinal of the rights of the people
and the custodian of the Constitution. It has been described as "the safety
valve" or "the balance wheel" of the Constitution.” It was further held that
Judiciary as the custodian of the fundamental rights has been charged with
a duty as a watch dog to see that none of the fundamental rights of the
CRIMINAL PETITION NOs. 41-K & 42-K OF 2023
4
people are abridged or taken away. This court in a number of cases has
held that liberty of a person is a precious right, which has been guaranteed
under the Constitution of Islamic Republic of Pakistan, 1973, and the same
cannot be taken away merely on bald and vague allegations. Taking into
consideration all the facts and circumstances stated above, we are of the
view that the case of the petitioners squarely falls within the ambit of
Section 497(2) Cr.P.C. entitling for further inquiry into their guilt.
7.
For what has been discussed above, we convert these
petitions into appeals, allow it and set aside the impugned order. The ad
interim pre-arrest bail granted to the petitioner Jamaluddin in Criminal
Petition No. 41-K/2023 by this Court vide order dated 17.04.2023 is hereby
confirmed. Whereas petitioner Rabail is admitted to bail subject to his
furnishing bail bonds in the sum of Rs.100,000/- with one surety in the like
amount to the satisfaction of learned Trial Court.
JUDGE
JUDGE
JUDGE
Islamabad, the
29th of May, 2023
Approved For Reporting
Khurram
|
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Gulzar Ahmed, HCJ
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.419 of 2020
(Against the order dated 13.04.2020
passed by the Islamabad High Court
Islamabad in Cr. M. No.225/B of 2020)
Saddam Hussain
…Petitioner(s)
Versus
The State through A.G. Islamabad and another
…Respondent(s)
For the Petitioner(s):
Mr. Muhammad Ilyas Siddiqui, ASC
For the State:
Mr. Niaz Ullah Niazi, A.G. Islamabad
Mr. Amir Zulfiqar, I.G. Police Islamabad
Syed Waqar ud Din, D.I.G. Operations
Mr. Kamran Adil, A.I.G. Establishment
Tasadduq Hussain, Inspector/I.O.
Asjad Mehmood, SHO P.S. Koral
For the Complainant:
Raja Muhammad Farooq, ASC
Syed Rifaqat Hussain Shah, AOR
Date of hearing:
12.05.2020.
ORDER
Gulzar Ahmed, CJ.- The Inspector General of Police,
Islamabad has appeared before the Court. He has stated that there are
other complaints against the Investigating Officer, Tasadduq Hussain
and the same are being dealt with by his office. He has assured the
Court that he will examine the case in hand also, and in case I.O.,
Tasadduq Hussain is found to have committed negligence or has
misconducted himself, he will be proceeded against departmentally and
the matter will be taken to the logical conclusion. It was emphasized by
the Court to the IG Police that investigation of a crime is a specialized
subject in which the investigation officers are required to be fully
trained and equipped, and in this regard the Police Training Centre
Criminal Petition No.419 of 2020
2
should
take
services
of
qualified
professionals
for
imparting
professional training to the investigation officers. A handbook of the
crime investigation, based upon previous experiences, illustrations,
practical applications and case-law developed by the superior Courts of
Pakistan should be prepared immediately with knowledge of using of
investigation kits and preparing a computerized data of the crime.
Such handbook of investigation should be immediately prepared but
not later than 6 months from today, and it should be made available to
each of the investigation officers, who are responsible for investigating
the crime. The handbook on investigation shall be updated every year
and new experiences shall be added along with latest case-law given by
the superior Courts. New investigation tools shall be added in every
new edition, to be issued every year on 1st of July. A copy of such
investigation handbook shall be provided by the IG Police, Islamabad to
the Registrar of this Court for our examination in chambers.
2.
At the same time we are sanguine that the IG Police,
Islamabad shall take all measures to improve the quality of working of
Islamabad Police, overall in general and in the matter of investigation
in particular, and he shall also ensure that proper law and order
situation prevails in Islamabad Capital Territory, and the life and
properties of the people are safeguarded and protected, and the
criminals are taken to task in accordance with law. No amount of
negligence in this regard should be tolerated and if any body in police
department is found neglecting his duties, he should immediately be
dealt with and if found guilty, appropriate penalty be imposed upon
him. If any police official is found indulging in criminal activities, the
criminal case shall also be registered against him, besides, taking
departmental action against such police official.
Criminal Petition No.419 of 2020
3
3.
We may emphasize that it is the constitutional right of the
people that their life and properties are saved and protected by the
State and such State functionaries include the police officials.
4.
Copy of this order be sent to IG Police of all the four
Provinces and Gilgit Baltistan for implementation of above directions.
5.
After arguing the matter at some length, Mr. Muhammad
Ilyas Siddiqui, learned counsel for the petitioner seeks to withdraw this
criminal petition in order to file a fresh bail application after final
Challan is submitted by the police in the trial Court. Dismissed as
such.
Chief Justice
Judge
Islamabad, the
12th May, 2020
Not approved for reporting
Ghulam Raza/-
|
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|
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mazhar Alam Khan Miankhel
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.42-P of 2018
(Against the judgment dated 25.01.2018 passed by the Peshawar
High Court Peshawar in Cr. A. No.446-P/2014)
Mst. Naseem
…Petitioner(s)
Versus
Farhad Khan and another
…Respondent(s)
For the Petitioner(s):
Mr. Altaf Khan, AOR
Mr. Muhammad Ajmal Khan, AOR
For the State:
Ms. Abida Safdar,
Addl. Advocate General, KPK
Date of hearing:
26.07.2021
ORDER
Qazi Muhammad Amin Ahmed, J.- Respondent was tried
by the learned Sessions Judge Peshawar for committing Qatl-i-Amd of
Haris Abdullah, 18/20, no other than his only son on 2.10.2012 within
the precincts of Police Station Hayatabad; the incident was reported by
his wife Mst. Naseem Khan who witnessed the occurrence alongside her
two sisters; no motive was cited in the crime report, however, in his
retracted confessional statement, he blamed the deceased for inaptitude
in his academic pursuits. Upon indictment, he claimed trial that
resulted into his conviction under clause (b) of section 302 of the
Pakistan Penal Code, 1860 vide judgment dated 28.6.2014; he was
sentenced to imprisonment for life, however, the High Court after
converting his conviction into clause (c) of section ibid reduced the
sentence to the period already undergone by him vide impugned
judgment dated 25.1.2018, being assailed by the State.
2.
Ms. Abida Safdar, learned Additional Advocate General,
Khyber Pakhtunkhwa, contends that the shocking case of filicide is an
open and shut episode, admitting no space to treat the respondent with
any degree of leniency; after taking us through the ocular account
furnished by Mst. Naseem Khan and Salma Khan, respondent’s wife
Criminal Petition No. 42-P/2018
2
and daughter respectively, the learned Law Officer read excerpts from
respondent’s confessional statement to demonstrate that he had acted
most callously and in a manner deliberate and calculated and, thus,
there was no occasion for the High Court to overstretch his culpability
into the remit of clause (c) of the section ibid; she next argued that the
deceased in his prime youth was ‘Masoom-ud-Dam’ and his gruesome
murder with five consecutive shots has inflicted indelible abiding
trauma to his devastated sisters and mother and, thus, a proportionate
sentence possibly presents them the only temporal solace; she next
argued that the respondent contested the charge without remorse or
regret and denied his culpability throughout and as such in the
absence of any specific plea, High Court ran into grievous error to let
him off with a brief period of incarceration which tantamount to denial
of justice both to the deceased as well as the family. Contentions merit
consideration; leave is granted to reappraise the entire evidence with a
view to secure ends of justice. Send for the respondent through bailable
warrants in the sum of Rs.200,000/-, returnable to the Assistant
Registrar of this Court at Peshawar. Station House Officer shall execute
the warrants within a fortnight.
Judge
Judge
Peshawar, the
26th July, 2021
Not approved for reporting
Azmat/-
|
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|
IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, CJ
MR. JUSTICE MIAN SHAKIRULLAH JAN
MR. JUSTICE TASSADUQ HUSSAIN JILLANI
MR. JUSTICE CH. IJAZ AHMED
MR. JUSTICE TARIQ PARVEZ
MR. JUSTICE ASIF SAEED KHAN KHOSA
MR. JUSTICE KHALIL-UR-REHMAN RAMDAY
Crl. Petition No. 426 of 2009 along with
Crl. Appeal No. 383 of 2009 &
Human Right Case No. 3200-G of 2009
Human Right Case No. 3742-P of 2009
Human Right Case No. 3928-P of 2009
Human Right Case No. 3887-P of 2009
Human Right Case No. 9778-P of 2009
Nazar Hussain (in Crl. P. 426 of 2009)
Lal Muhammad (in Crl. A. 383 of 2009)
… Petitioner/Appellant
VERSUS
The State
… Respondent
For the Petitioner:
Ch. Afrasiab Khan, ASC.
(in Crl.P. 426 of 2009)
For the Appellant:
Mr. Arshad Ali Chaudhry, AOR
(in Crl.A. 383 of 2009)
Amicus Curiae:
Syed Iftikhar Hussain Gillani, Sr.
ASC.
Mr. Zulfiqar Khalid Maluka, ASC.
For the State:
Mr. Shah Khawar, D.A.G.
Raja Abdul Ghafoor, ASC/AOR
(on behalf of A.G. Sindh).
Mr. Naveed Akhtar, Addl. A.G.
NWFP.
Mr. Muhammad Raza, Addl. A.G.
Balochistan.
Mr. Saeed Yousaf, Addl. A.G.
Punjab.
Raja Shahid Mehmood, D.P.G.
Punjab.
Date of Hearing:
01 & 02.04.2010 (Announced in
Open Court on 11.08.2010)
*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*
Crl.P.No. 426 of 2009 &
Crl. A. No. 383 of 2009 etc.
2
JUDGMENT
TASSADUQ HUSSAIN JILLANI, J.- While hearing
Crl. Petition No. 426 of 2009, a number of questions with
regard to powers of the President under Article 45 of the
Constitution to grant pardon and reprieve and the policy
framed by the Government of Pakistan to grant remissions
under the law came up for consideration. Vide order dated
10.09.2009, the Court framed following issues and notices
were issued to the Deputy Attorney General and to the
Advocate Generals of the four provinces:-
i)
Whether under Article 45 of the
Constitution of Islamic Republic of
Pakistan,
the
President
enjoys
unfettered powers to grant remissions
in respect of offences and no clog
stipulated in a piece of subordinate
legislation can abridge this power of the
President as held by this Court in
Abdul Malik & others v. The State
& others (PLD 2006 Supreme Court
365);
ii)
whether the policy formulated by the
Government of Pakistan, Ministry of
Interior, dated August, 2009 is in
consonance with the judgment delivered
by larger bench of this Court in case
Shah Hussain v. The State (PLD
2009 Supreme Court 460);
iii)
whether
the
Prison
Rules
as
enumerated are subservient to Article
45 and in case of any conflict between
Prison
Rules
and
above-referred
judgments as well as special remissions
under Article 45 of the Constitution and
what would be the legal position of the
said Rules; and
iv)
whether any classification would be
permissible in view of the nature of
Crl.P.No. 426 of 2009 &
Crl. A. No. 383 of 2009 etc.
3
accusation in case special remission is
granted by the President of Pakistan, in
view of the provisions as enumerated in
Article 25 of the Constitution.
2.
Detailed arguments were addressed by Ch.
Afrasiab Khan, ASC, learned counsel for the petitioner, Mr.
Arshad Ali Chaudhry, AOR, learned Amicus curie M/s Syed
Iftikhar Hussain Gillani, Sr. ASC and Zulfiqar Khalid Maluka,
ASC as also by Mr. Shah Khawar, Deputy Attorney General,
Raja Abdul Ghafoor, ASC/AOR appearing on behalf of A.G.
Sindh, Mr. Naveed Akhtar, Addl. A.G. NWFP, Mr. Muhammad
Raza, Addl. A.G. Balochistan, Mr. Saeed Yousaf, Addl. A.G.
Punjab and Raja Shahid Mehmood, D.P.G. Punjab.
3.
The first issue revolves round Article 45 and has
been framed in terms as under:-
Whether under Article 45 of the Constitution
of Islamic Republic of Pakistan, the President
enjoys unfettered powers to grant remissions
in respect of offences and no clog stipulated
in a piece of subordinate legislation can
abridge this power of the President as held by
this Court in Abdul Malik & others v. The
State & others (PLD 2006 Supreme Court
365).
4.
The head of the State is vested with similar powers
in almost all constitutions of the World as provided in Article
45 of the Constitution of Islamic Republic of Pakistan. The
issues of the extent of Presidential power under such a
provision, the manner of its exercise and whether it is
immune from challenge in a Court has been a subject of
Crl.P.No. 426 of 2009 &
Crl. A. No. 383 of 2009 etc.
4
debate both within the country and in jurisdictions across the
frontier. Article 45 of the Constitution reads as under: -
“The President shall have power to grant
pardon, reprieve and respite, and to remit,
suspend or commute any sentence passed by
any court, tribunal or other authority.”
5.
Every country recognizes and has, therefore,
provided for this power to be exercised as an act of grace in
proper cases. It is by now well recognized that “Without such a
power of clemency to be exercised by some department or
functionary of government, a country would be most imperfect
and deficient in its political morality and in that attribute of
deity whose judgments are always tempered with mercy.”
(American Jurisprudence 2nd Edn. Page 5). The philosophy of
this special dispensation as per Corpus Juris Secundum (Vol.
67-A) is that, “The pardoning power is founded on
consideration of the public good and is to be exercised on the
ground of public welfare, which is the legitimate object of all
punishments, will be as well promoted by a suspension as by
an execution of the sentences. It may also be used to the end
that justice be done by correcting injustice, as where after
discovered facts convince the official or board invested with the
power that there was not guilt or that other mistakes were
made in the operation or enforcement of the criminal law.
Executive clemency also exists to afford relief from undue
harshness in the operation or enforcement of criminal law. (1)
Acts of leniency by pardon are administered by the executive
Crl.P.No. 426 of 2009 &
Crl. A. No. 383 of 2009 etc.
5
branch of the government in the interest of society and the
discipline, education and reformation of the person convicted.
(2) A pardon is granted on the theory that the convict has seen
the error of his ways, that society will gain nothing by his
further confinement and that he will conduct himself in the
future as an upright, law-abiding citizen.”
6.
The power of pardon enshrined in Article 45 of the
Constitution has been subject of comment by this Court in
Bhai Khan v. The State (PLD 1992 SC 14) and the view taken
was reiterated in a latter judgment in Abdul Malik v. The
State (PLD 2006 SC 365). In Bhai Khan Supra,, this Court
was of the view as follows:-
“…………it may be stated that the power
under Article 45 of the Constitution being a
constitutional power, is not subject to any
limitations or conditions that may be found in
the Pakistan Penal Code or the Code of
Criminal Procedure. The exercise of the
discretion by the President under Article 45 is
to meet at the highest level the requirements
of justice and clemency, to afford relief
against undue harshness, or serious mistake
or miscarriage in the judicial process, apart
from specific or special cases where relief is
by way of grace alone, as for instance to
celebrate an event or when a new President
or Prime Minister is installed, where relief or
clemency
is
for
the
honour
of
the
State………..(Emphasis is supplied).
7.
If a sentence is commuted, it has the effect of
substituting the sentence imposed by the court with that of
the President or the Federal Government or the Provincial
Government as the case may be. It does not, however, wash
off the guilt or alter the judgment. If commutation order has
Crl.P.No. 426 of 2009 &
Crl. A. No. 383 of 2009 etc.
6
been passed during the pendency of the appeal of the convict,
the court can still decide about the guilt or innocence of the
accused.
8.
In Abdul Malik’s case (PLD 2006 SC 365), while
affirming the view already taken in Bhai Khan’s Supra case,
this Court held that being a constitutional dispensation, this
cannot be fettered by any legislative Act or instrument. It was
observed as follows:-
“The power of the President to grant pardon,
reprieve or respite and to remit or suspend or
commute any sentence is a power which is
given to Heads of the States in most of the
Constitutions of the world…………
24. the argument that the power of the
President to grant pardon, reprieve, respite,
remit, or suspend, or commute any sentence
is subject to section 402, Cr.P.C. is not
tenable and is not only against the
constitutional mandate but also the scope of
the afore-referred provision, section 402-C,
Cr.P.C. reads as under:---
“402-C. Remission or commutation of
certain sentences not to be without
consent. Notwithstanding anything
contained in section 401, section
402, section 402A or section 402B,
the
Provincial
government,
the
Federal Government or the President
shall not, without the consent of the
victim or, as the case may be, of the
heirs, suspend remit or commute any
sentence passed under any section
in Chapter XVI of the Pakistan Penal
Code.”
25. It is a settled principle of constitutional
interpretation that a provision enshrined in
the Constitution shall prevail notwithstanding
anything contrary contained in a piece of
subordinate legislation.”
9.
In the judgments of this Court to which reference
has been made in the preceding paragraphs, although it was
Crl.P.No. 426 of 2009 &
Crl. A. No. 383 of 2009 etc.
7
held that the powers of the President in terms of Article 45 of
the Constitution are unqualified, yet there was no comment
on the manner in which the President has to exercise the
power i.e. whether on the advice of the Prime Minister or in
exercise of his discretionary powers under the Constitution.
The manner of the exercise of various powers of the President
is spelt out in Article 48 of the Constitution. Article 48(1)
provides that in the exercise of his “functions”, the President
shall act in accordance with advice of the Cabinet (or the
Prime Minister). But this is qualified by proviso stipulated
therein and to Sub Article (2). A reference at this stage to
Article 48 of the Constitution would be in order:-
“48. President to act on advice, etc. (1) In
the exercise of his functions, the President
shall act [on and] in accordance with the
advice of the Cabinet, (or the Prime Minister)
Provided that [within fifteen days] the
President may require the Cabinet or, as the
case may be, the Prime Minister to reconsider
such advice, either generally or otherwise,
and the President shall [within ten days] act
in accordance with the advice tendered after
such reconsideration.
(2) Notwithstanding anything contained in
clause (1), the President shall act in his
discretion in respect of any matter in respect
of which he is empowered by the Constitution
to do so [and the validity of anything done by
the President in his discretion shall not be
called in question on any ground whatsoever].
(4) The question whether any, and if so what,
advice was tendered to the President by the
Cabinet, the Prime Minister, a Minister of
State shall not be inquired into in, or by, any
court, tribunal or other authority.
(5) - - - - - - -
(6) - - - - - - -
(7) - - - - - - - ”
Crl.P.No. 426 of 2009 &
Crl. A. No. 383 of 2009 etc.
8
10.
In Al-Jehad Trust v. Federation of Pakistan, (PLD
1997 SC 84) the issue of exercise of powers by the President
under various provisions of the Constitution came under
consideration and this Court held that depending on the
manner of exercise of the authority, there are five distinct
kind of powers which the President exercises. Those are:-
“(i)
The Articles under which actions are to
be taken in accordance with the advice
tendered by the Cabinet or Prime
Minister;
(ii)
The Articles under which the Prime
Minister’s advice is required but it will
be binding if it is in accordance with the
law declared by the Apex Court;
(iii)
The Articles which specifically provide
for
Prime
Minister’s
advice
or
consultation independent of clause (1) of
Article 48, to which Articles, aforesaid
Article 48(1) would not be attracted to;
(iv)
The Articles under which the President
has been given discretionary power
and, therefore, he can act without the
advice of the Prime Minister by virtue of
clause (2) of Article 48;
(v)
The
nature
of
the
functions/duties/rights
provided
in
certain Articles is such which exclude
the application of Article 48(1).”
11.
The powers/actions of the President under Article
45 of the Constitution are part of his “functions” and are to be
exercised in accordance with the advice of the Cabinet or the
Prime Minister.
12.
Sub Article (2) of Article 48 of the Constitution
relates to the discretionary powers of President in which he is
empowered to act, but there is no reference to the discretion
of the President in Article 45 of the Constitution. Thus in the
exercise of the powers under the later provision, he has to act
Crl.P.No. 426 of 2009 &
Crl. A. No. 383 of 2009 etc.
9
on the advice of the Prime Minister or the Cabinet. The
exercise of the power under this provision, therefore, would
not fall within the ambit of Article 48(2) of the Constitution.
13.
The Rules of Business framed under Article 99 of
the Constitution categorize list of cases requiring orders of the
President on the advice of the Prime Minister and Item No. 25
pertains to the powers of the President under Article 45 of the
Constitution.
14.
Even in India, the exercise of the power of the
President to grant pardon or reprieve is regulated and has to be
on the advice tendered by the Council of Ministers. The
analogous provision in the Indian Constitution is Article 72
which, inter alia, stipulates, “the President shall have the power
to grant pardons, reprieves, respites or remissions of punishment
or to suspend, remit or commute the sentence of any person
convicted of any offence.”
15.
In State of Punjab v. Joginder Singh (AIR 1990 SC
1396), it was held that, “the power under Art. 72 is absolute and
cannot be fettered by any statutory provision such as Sections
432, 433 and 433A of Code of Criminal Procedure. This power
cannot be altered, modified or interfered with in any manner
whatsoever by any statutory provision and Prison Rules though
the power has to be exercised on the advice of Council of
Ministers.”
16.
In England the power of pardon is a royal
prerogative exercised on the advice of Home Secretary. “it is
an executive act, but the Home Secretary is authorized by the
Criminal Appeal Act, 1907, to refer a case to the Court of
Crl.P.No. 426 of 2009 &
Crl. A. No. 383 of 2009 etc.
10
Criminal Appeal, either for opinion or for final disposal as if it
was an appeal. Ordinarily the power is exercised after
sentence when there is some special reason why a sentence
shall not be carried out; but a pardon also is available before
conviction.” (R. V. Boyes (1861) 1 B&S 311).
17.
In United States, the President enjoys this power
in terms of Article II Sec. 2(1) of the Constitution which
mandates that, “He (the President) shall have the power to
grant reprieves and pardons for offences against the United
States except in case of impeachment.” On the extent of this
power and with reference to precedent case law from U.S.,
Durga Das Basu says, “the pardoning power may be exercised
by him at any time after the offence has been committed, either
before or after trial or conviction; and this power may not be
limited by Congress, either as to persons or as to the effect of
pardon.
18.
The foregoing survey of the powers of clemency
reposed in the Heads of State indicate that the constitution-
makers deemed it proper to embed this provision in the
constitution so as to place it at a higher pedestal than any
other legislative or administrative Act or instrument. However,
it needs to be emphasized that all public power which
includes the constitutional power is a public trust and has to
be exercised bona fidely, for public good and welfare. The
considerations for public welfare may, inter alia, include
discipline, education, reformation and equity. As aptly
Crl.P.No. 426 of 2009 &
Crl. A. No. 383 of 2009 etc.
11
commented in ‘Corpus Juris Secundum (Vol. 67-A) as
follows:-
“the pardoning power is founded on
considerations of the public good, and is to be
exercised on the ground that the public
welfare, which is the legitimate object of all
punishment, will be as well promoted by a
suspension as by an execution of the
sentence. It may also be used to the end that
justice be done by correcting injustice, as
where after-discovered facts convince the
official or board invested with the power that
there was no guilt or that other mistakes were
made in the operation or enforcement of the
criminal law. Executive clemency also exists
to afford relief from undue harshness in the
operation or enforcement of criminal law.”
19.
The question whether being a public power, could it
be subjected to judicial review, was considered by the Indian
Supreme Court and it held that it was reviewable though on
limited grounds. Reference is made to Epuru Sudhakar Vs.
Government of A.P. (AIR 2006 SC 3385) & State of Bihar Vs.
Madan Lal Jain (AIR 1982 SC 774). However, since it was not a
moot point in the instant case, we would not like to dilate upon
issue at this stage.
20.
This brings us to second issue i.e.
“Whether the policy formulated by the
Government of Pakistan, Ministry of Interior,
dated August, 2009 is in consonance with the
judgment delivered by larger bench of this
Court in case Shah Hussain v. The State (PLD
2009 Supreme Court 460).”
21.
To appreciate the afore-referred issue, it would be
necessary to keep in mind the ratio of the judgment in Shah
Hussain’s case (PLD 2009 SC 460). This Court in the said
case was primarily seized of a matter in which the convict
Crl.P.No. 426 of 2009 &
Crl. A. No. 383 of 2009 etc.
12
having been awarded life imprisonment on two counts was
though granted the benefit of section 382-B Cr.P.C. by the
High Court but it was held that he was not entitled to the
remissions granted by the government for the period of
detention prior to his conviction (Emphasis is supplied). The
High Court in view of section 402-C Cr.P.C. also disallowed
remissions of sixty days granted by a general order dated
5.1.2000 issued by the Government of Balochistan and
section 401 Cr.P.C. as well as the remissions of one year
granted by the President of Pakistan under Article 45 of the
Constitution on the eve of Eid-ul-Fitr. The said judgment of
the High Court was based on this Court’s judgment in Abdul
Ali’s case (PLD 2005 SC 163), wherein it was held as follows:-
“the conviction and sentence of an accused
could not be made to run from the date prior
to the date of conviction by a competent court
although in certain eventualities the execution
of sentence of a convict could be postponed.
Ordinarily, a conviction commences from the
time it is passed. A criminal Court does not
possess any power to make a sentence to
precede the conviction. In other words, the
conviction and sentence cannot be ante-
dated.”
22.
This Court re-visited this judgment (Abdul Ali
Supra) in Shah Hussain’s case (Supra), and while doing so, it
considered a plethora of precedent case law both of this Court
and also from abroad and came to the conclusion that refusal
by the Court to allow remissions of pre-sentence custody
period to convicts who have been granted benefit of Section
382-B Cr.P.C. amounted to deprivation of his liberty and was
violative of the fundamental right of ‘right to life’ enshrined in
Crl.P.No. 426 of 2009 &
Crl. A. No. 383 of 2009 etc.
13
Article 9 of the Constitution. The judgment of the High Court
refusing the relief (of remissions) in question on the basis of
the law laid down in Abdul Ali’s case (Supra) was thus set
aside. It noted with approval the broad principles laid down in
several judgments of this Court and specific reference was
made in Paras 20 to 25 of the judgment (Shah Hussain’s
case, PLD 2009 SC 460). The Court also deprecated the
denial of remissions to a category of convict / prisoners for
the pre-sentence period, as arbitrary, devoid of reasonable
classification and declared it violative of Article 25 of the
Constitution at page 489 paragraph 39. It observed as
follows: -
39. The under-trial prisoners, or criminal
prisoners, particularly those who are later
convicted of the offence in connection with
which they were incarcerated, sooner or later
join the ranks of convicted criminal prisoners.
It is discriminatory not to treat them at part
with their co-prisoners living in the same or
similar premises, may be under the same
very roof. They are equal before law and are
entitled to equal protection of law under
Article 25 of the Constitution. If remissions of
the pre-sentence period were to be denied to
the convicts after they were granted the
benefit of section 382-B Cr.P.C., we would be
confronted with a situation where remission
granted on the eve of Eid would be
admissible to a prisoner who was convicted a
day before Eid, but not to a person who was
convicted a day after Eid, though the two
prisoners were on an equal footing two days
before Eid, i.e., till then both of them were
confined as under-trial prisoners and both of
them also got the benefit of section 382-B,
Cr.P.C.
The
classification
of
‘criminal
prisoners’ and ‘convicted criminal prisoners’
qua the admissibility of remissions granted
by any authority where the Court has passed
an order granting the benefit of section 382-B
Crl.P.No. 426 of 2009 &
Crl. A. No. 383 of 2009 etc.
14
Cr.P.C., does not meet the test of ‘intelligible
differentia’ laid down in the case of I.A.
Sharwani v. Government of Pakistan (1991
SCMR 1041). The under-trial prisoners getting
the benefit of section 382-B, Cr.P.C., cannot
be deprived of remissions accruing during
their pre-sentence custody period. Article 9 of
the Constitution guarantees the right to life of
a person and is very much available to a
prisoner alongwith certain other fundamental
rights, such as to acquire, hold and dispose of
property
for
the
exercise
of
which
incarceration can be no impediment, though
he is deprived of certain fundamental
freedoms like the right to move freely
throughout the country or the right to practice
a profession, etc., as it was held in the case
of D.B.M. Patnaik v. State of A.P. (AIR 1974
SC
2092).
Therefore,
the
protection
guaranteed under Article 9 remains available
to the under-trial prisoners and they are
entitled to the benefit of section 382-B,
Cr.P.C., along with remissions if any, granted
during their pre-sentence custody period,
inasmuch as on account of denial thereof,
they would be required to remain in prison for
a longer time that warranted and deprived of
their liberty.”
23.
In the light of the observations quoted in the
preceding paragraphs, the Court concluded and directed as
follows:-
“(1) After the use of word “shall” for the word
“may” in section 382-B Cr.P.C., at the time of
passing the sentence, it is mandatory for the
trial Court to take into consideration the pre-
sentence custody period in the light of the
principles discussed above;
(2) The refusal to take into consideration the
pre-sentence custody period at the time of
passing the sentence is illegal inasmuch as if
a Court sentences a convict to imprisonment
for life, which is the alternate but maximum
sentence for the offence of murder, but does
not make allowance for the pre-sentence
custody period, it would be punishing the
convict prisoner with imprisonment for life
plus the pre-sentence custody period, that is
Crl.P.No. 426 of 2009 &
Crl. A. No. 383 of 2009 etc.
15
to say, more than the maximum legal
punishment;
(3) The convict-prisoners who are granted the
benefit of section 382-B Cr.P.C., shall be
entitled to remissions granted by any
authority in their post-sentence detention or
during their pre-sentence detention in
connection with such offence. However, the
same shall not be available to the convicts of
offences under the National Accountability
Bureau Ordinance, 1999, Anti-terrorism Act,
1997, the offence of karo kari, etc, where the
law itself prohibits the same;
(4) the law laid down in Abdul Malik’s case
that under Article 45 of the Constitution, the
President enjoys unfettered powers to grant
remissions in respect of offences and no clog
stipulated in a piece of subordinate legislation
can abridge this power of the President, is
hereby reaffirmed.”
24.
To determine whether the policy framed by the
Government of Pakistan, Ministry of Interior in August 2009
is in consonance with the judgment in Shah Hussain’s case
(Supra), a reference to the same would be in order:-
“MOST IMMEDIATE
No. D. 2792/2009-DS (Admn)
Government of Pakistan
Ministry of Interior
Islamabad, the August, 2009
From:
Mehir Malik Khattak,
Deputy Secretary (Law),
To:
The Registrar,
Supreme Court of Paksitan,
Islamabad.
Subject:
GRANT OF REMISSION TO CONVICTS.
Dear Sir,
Kindly refer to Additional Prosecutor General Punjab letter dated
28.7.2009 on the subject noted above.
2.
The President has been, in exercise of his power, under Article 45 of
the Constitution, granted special remission in sentences on auspicious occasions of
Eidain and Pakistan and Independence Day. However, in the past special
remission under Article 45 of the Constitution had been granted at liberal scale. In
one case, remission of 1/5th sentence was approved in one go which in case of
lifers meant 5 years remission. The duration of remission in sentences was also
increased arbitrarily from 2,3 or 6 months to one year.
Crl.P.No. 426 of 2009 &
Crl. A. No. 383 of 2009 etc.
16
3.
In 2002, the then Government keeping in view the fluctuating
discretionary behaviour during different years directed Ministry of Interior to
formulate a policy limiting the discretionary. Accordingly, the MOI in consultation
with Law & Justice Division and Chief Justice of Pakistan and with the approval of
the President formulated the policy comprising of guidelines and remissions as
under:-
Guideline
a.
The present restrictive policy may continue. Those who
indulge in heinous crimes should not benefit from these
remissions. (Emphasis is supplied)
b.
Solemn occasions on which this remission may be
granted should be specified and there should be no
deviation from that. Such remissions may be awarded
on four occasions during a year i.e. Eid-ul-Fitr, Eid
Milad un Nabi, 23rd March and 14th August.
c.
Mercy petitions against death sentence may be dealt
with on individual basis and there should be no general
clemency.
d.
Overcrowding in jails should not be considered a valid
ground for special remissions. The indiscriminate
practice in the past has at times encouraged crimes,
crowding the jails further subsequently.
e.
Federal and Provincial Governments may continue to
exercise their power under the Pakistan Penal Code /
The Code of Criminal Procedure / Pakistan Prison Rules
1978 in exercise of their best judgment that genuinely
repentant and occasional criminals, who are victim of
circumstances, benefit more from these remissions.
Remission
i.
Special remission of 90 days to the prisoners convicted for life
imprisonment except those convicted for murder, espionage,
anti-state activities, sectarianism, Zina (Sec10 offence of Zina
(Enforcement of Hudood) Ordinance, 1979 (also under Sec.
377 PPC), robbery (Sec. 394 PPC), dacoity (Sec. 395-396 PPC),
kidnapping/abduction (Sec. 364-A & 365-A), and terrorist acts
(as defined in the Anti-Terrorism (Second Amendment)
Ordinance, 1999 (No. XIII of 1999). (Emphasis is supplied).
ii.
Special remission for 45 days to all other convicts except the
condemned prisoners and also except those convicted or
murder, espionage, subversion, anti-state activities, terrorist
act (as defined in the Anti-Terrorism (Second Amendment)
Ordinance, 1999 (No.XIII of 1999), Zina (Sec. 10 offence of
Zina (Enforcement of Hudood) Ordinance, 1979 (also under
Sec. 377 PPC), kidnapping/abduction (Sec. 364-A & 365-A),
robbery (Sec. 394 PPC), dacoity (Sec. 395-396 PPC), and those
undergoing sentences under the Foreigners Act, 1946.
iii.
Special remission at sub-paras i&ii above will be admissible
provided that the convicts have undergone 2/3rd of their
substantive sentence of imprisonment.
iv.
Total remission to male prisoners who are 65 years of age or
above and have undergone at least 1/3rd of their substantive
sentence of imprisonment, except those involved in culpable
homicide.
v.
Total remission to female prisoners who are 60 years of age or
above and have undergone at least 1/3rd of their sentence of
imprisonment except those involved in culpable homicide.
vi.
Special remission of one year to female prisoners who have
accompanying children and are serving sentence of
imprisonment for crimes other than culpable homicide.
vii.
Total remission to juvenile convicts (under 18 years of age)
who have served 1/3rd of their substantive sentence except
those involved in culpable homicide, terrorist act, as defined in
the Anti Terrorism (Second Amendment) Ordinance, 1999 (No.
XIII of 1999), Zina (Sec. 10 offence of Zina (Enforcement of
Hudood) Ordinance, 1979 (also under section 377 PPC)
robbery (Sec. 394 PPC), dacoity (Sect. 395-396 PPC),
kidnapping/abduction (Sec. 364-A & 365-A) and anti-state
activities.
viii.
Those convicted in cases processed by NAB will not be
entitled to any remission.
4.
Since then the above policy has been enforced. However, in 2007, on
the direction of Honourable Sindh High Court provisions regarding remission at
sub-para viii above were deleted.
Crl.P.No. 426 of 2009 &
Crl. A. No. 383 of 2009 etc.
17
Yours faithfully,
(Mehir Malik Khattak)
Deputy Secretary
Tele:9203851”
25.
The moot point in Shah Hussain’s case (supra)
was the judgment of the High Court wherein certain
convicts/prisoners though granted the benefit of section 382-
B Cr.P.C., but were refused remissions for the period
preceding their date of conviction. [The High Court had relied
on a judgment of this Court in Haji Abdul Ali v. Haji Bismillah
(PLD 2005 SC 163)]. This Court in Shah Hussain supra case
partly endorsed the policy and the classification made therein
in so far as it was backed by law by observing, “However the
same (remissions) shall not be available to the convicts of
offences under the National Accountability Bureau Ordinance,
1999, Anti-terrorism Act, 1997, the offence of Karo Kari, etc.,
where the law itself prohibits that.” It was not brought to the
notice of this Court in Shah Hussain’s case (PLD 2009 SC
460) that section 10(d) of the NAB Ordinance had been
declared ultra vires by a full Bench of the Karachi High Court
(PLD 2007 Kar 139). So the observation made qua inclusion
of convicts under the NAB Ordinance be treated as per
incuriam. In terms of the policy framed by the Ministry of
Interior,
Government
of
Pakistan,
certain
parameters/guidelines have been laid down for the grant of
remissions under Article 45 of the Constitution. A class of
convicts / prisoners have been excluded who are accused of
“heinous offences” in the paragraph of “remissions” in the
Crl.P.No. 426 of 2009 &
Crl. A. No. 383 of 2009 etc.
18
policy letter reproduced in paragraph 24 above. The
expression “heinous offences” has further been elaborated in
the succeeding para i.e. that such remission would be
available to those prisoners convicted for life imprisonment
except those convicted for murder, espionage, anti-stage
activities,
sectarianism,
Zina
(sec10
offence
of
Zina
(Enforcement of Hudood) Ordinance, 1979 (also under Sec.
377 PPC), robbery (Sec. 394 PPC), dacoity (Sec. 395-396 PPC),
kidnapping/abduction (Sec.364-A & 365-A), and terrorist acts
(as defined in the Anti-Terrorism (Second Amendment)
Ordinance, 1999 (No. XIII of 1999)). An analysis of the afore-
referred exclusions and the classification would show that the
same are based on reasonable differentia and it is neither
individual specific nor arbitrary. The classification made and
denial of remissions to a class of convicts / prisoners is either
backed by law or rule or there is an objective criterion. A
breakup of the classification, the law or rules which may back
this classification or the nature of heinousness of offence is
given as follows: -
Sr. No.
Class of prisoners /
convicts excluded
Reason
1.
Murder
It is a heinous offence
2.
3.
Espionage,
Anti-State
activities
Rule 214-A of the Prisons
Rules mandates as follows: -
214.A. – No person who is
convicted for espionage or
anti-state activities shall be
entitled to ordinary or special
remission unless other-wise
directed by the Provincial
Government.
Crl.P.No. 426 of 2009 &
Crl. A. No. 383 of 2009 etc.
19
4.
Secretarianism
21F.
Remission.
–
Notwithstanding
anything
contained in any law or prison
rule for the time being in force,
no remission in any sentence
shall be allowed to person who
is convicted and sentenced for
any offence under this Act.
5.
Zina/Rape
Section 10(3) of Offence of Zina
(Enforcement
of
Hudood)
Ordinance, 1979. Though this
provision
has
since
been
repealed (by Act VI of 2006),
but a similar provision has
been inserted through section
375 and 376 in PPC. It is a
heinous offence.
6.
7.
Dacoity
(Sec 395-396 PPC)
Kidnapping/
abduction
These are heinous offences.
8.
Anti Terrorism Act
21F.
Remission.
–
Notwithstanding
anything
contained in any law or prison
rule for the time being in force,
no remission in any sentence
shall be allowed to person who
is convicted and sentenced for
any offence under this Act.
26.
The afore-referred chart indicates that the policy
of remissions under consideration is neither arbitrary or
discriminatory and is rather based on an intelligible
differentia which is permissible and is therefore, not violative
of Article 25 of the Constitution and the law laid down by this
Court.
27.
The third issue relates to the nature of the power
of the competent authority under the Prison Rules for the
Crl.P.No. 426 of 2009 &
Crl. A. No. 383 of 2009 etc.
20
grant of remissions in juxtaposition to the powers of
remissions under Article 45 and the issue framed is:
“Whether the Prison Rules as enumerated are
subservient to Article 45 and in case of any
conflict between Prison Rules and above-referred
judgments as well as special remissions under
Article 45 of the Constitution and what would be
the legal position of the said Rules”.
28.
As explained in the preceding paragraphs, the
pardoning powers of President under Article 45 of the
Constitution are part of constitutional scheme and cannot be
circumscribed by any subordinate legislation or executive
instrument. In the event of conflict between the two, the
former has to prevail. The policy of shortening of sentences
through remissions is founded on the salutary principle of
criminal justice i.e. that the purpose of punishment is both
deterrent and remedial or reformative and that the convict be
released by granting remission in sentence. Striking a healthy
balance among these considerations has been one of the
recurrent themes in the evolution of justice system. In
‘Salmond on Jurisprudence’ (12th Edition by P.J. Fitzgerald)
the author in Chapter 15 dealt with the purpose of criminal
justice/punishment as under:-
“Deterrence acts on the motives of the offender,
actual or potential; disablement consists
primarily in physical restraint. Reformation, by
contrast, seeks to bring about a change in the
offender’s character itself so as to reclaim him as
a useful member of society. Whereas deterrence
looks primarily at the potential criminal outside
the dock, reformation aims at the actual offender
before the bench. In this century increasing
weight has been attached to this aspect. Less
frequent use of imprisonment, the abandonment
Crl.P.No. 426 of 2009 &
Crl. A. No. 383 of 2009 etc.
21
of short sentences, the attempt to use prison as
a training rather than a pure punishment, and
the greater employment of probation, parole, and
suspended sentences are evidence of this
general trend. At the same time, there has been
growing concern to investigate the causes of
crime
and
the
effects
of
penal
treatment……….The reformative element must
not be overlooked but it must not be allowed to
assume
undue
prominence.
How
much
prominence it may be allowed, is a question of
time, place and circumstance.”
29.
The Remissions Rules framed under the Prisons
Act are primarily based on the reformative principle. In terms
of section 59 of the Prison Act 1894, the Provincial
Government is empowered to make rules consistent with the
provisions of the Act. Till the break up of the One Unit, the
grant of remissions was being regulated by the West Pakistan
Prisons (Remissions and Sentences) Rules 1965. However,
after the creation of four Provinces, the Government decided
to issue a Jail Manual to be followed in all the four Provinces.
As the prisons Department was a Provincial subject, the
Federal Government in a meeting of the Inspector Generals of
Prisons/Directors of Prisons of all the provinces held on 12th
of April, 1976, advised the provincial governments to adopt
the Draft Manual as Rules to bring about uniformity in this
domain. With previous sanction of the Federal Government,
the Jail Manual was adopted to be called the Pakistan Prison
Rules. Chapter 6 of those Rules pertains to the grant of
remissions. The Chapter comprises of Rules defining certain
expressions: explaining the remission system (Rule 199),
classifies the nature of remissions i.e. ordinary or special
Crl.P.No. 426 of 2009 &
Crl. A. No. 383 of 2009 etc.
22
(Rule 200), cases in which no ordinary remission is earned
(Rule 201) and exclusion of persons from grant of remissions
if he/she is convicted of an offence after admission into a
prison (Rule 202). Rule 140 lays down that imprisonment for
life will mean 25 years rigorous imprisonment and every life
prisoner shall undergo a minimum of 15 years of substantive
sentence of imprisonment. It also stipulates that the cases of
lifers shall be referred to the Provincial Government after they
have served out 15 years of substantive imprisonment for
consideration with reference to section 401 of the Code of
Criminal Procedure. Rule 215 provides for remissions on
account of education. Similarly, Rule 216 is relatable to
special remissions to be granted by the Superintendent of
Prisons, Inspector General of Police, Provincial Government
and Federal Government. The law on remissions both in
Pakistan and India puts a limit on the total remissions that
can be availed of by a convict undergoing life sentence. Rule
217 of Pakistan Prison Rules reads as follows: -
“Rule 217.—(i) The total remission, both ordinary
and special awarded to a prisoner under these
Rules (other than remission for donating blood
awarded under rule 212, surgical sterilization
under rule 213 and for passing an examination
under rule 215) shall not exceed one-third of his
sentence:
Provided
that
Government
may,
on
the
recommendation of the Inspector-General, grant
remissions beyond the one-third limit in very
exceptional and deserving cases.
(ii) Remission, both ordinary and special, earned
by a lifer convict shall be so much that a sentence
of imprisonment for life is not shortened to a
period of imprisonment less than 15 years.”
Crl.P.No. 426 of 2009 &
Crl. A. No. 383 of 2009 etc.
23
30.
Sub-rule (ii) of Rule 217 in Pakistan Prison Rules
reproduced in the preceding para is almost similar in import
to section 433-A of the Indian Criminal Procedure Code which
is as follows:-
“433-A.
Restriction
on
powers
of
remission or commutation in certain
cases.----Notwithstanding anything contained
in
Sec.
432,
where
a
sentence
of
imprisonment for life is imposed on conviction
of a person for an offence for which death is
one of the punishments provided by law, or
where a sentence of death imposed on a
person has been commuted under Sec. 433
into one of imprisonment for life, such person
shall not be released from prison unless he
had served at least fourteen years of
imprisonment.”
31.
In Indian Prisons Rules, there was no provision
similar to Sub-rule II of Rule 217 reproduced in para 26
above. The issue of conflict between the Prisons Rules and
Section 433-A Cr.P.C stipulating that a person undergoing life
sentence (punishable with capital punishment) should not be
released until he had served out fourteen years of
imprisonment, came up for consideration before the Indian
Supreme Court (1980 Cr.LJ 1440) & it upheld the later
provision and declared that “the remission rules and like
provision stand excluded so far as lifers punished for capital
offense are concerned.”
32.
In Maru Ram v. Union of India [(1981) 1 SCC 107],
the Court refused to read down Section 433-A to give
overriding effect to the Remission Rules of the State. The
Court ruled that,
Crl.P.No. 426 of 2009 &
Crl. A. No. 383 of 2009 etc.
24
“Remission Rules and like provisions stand
excluded so far as ‘lifers’ punished for capital
offences are concerned. Remissions by way of
reward or otherwise cannot cut down the
sentence awarded by the court except under
Section 432 of the Code or in exercise of
constitutional power under Article 72/161 of the
Constitution. Remission cannot detract from the
quantum and quality of the judicial sentence
except to the extent permitted by Section 432 of
the Code, subject of course to Section 433-A, or
where the clemency power under the Constitution
is invoked…….
Section 302, IPC or other like offence fixes the
sentence to be life imprisonment and 14 years’
imprisonment under Section 433-A is never
heavier than life term. Remission vests no right to
release when sentence is life imprisonment. No
greater punishment is inflicted by Section 433-A
than the law annexed originally to the crime. Nor
is any vested right to remission cancelled by
compulsory 14-year jail life, since a life sentence
is a sentence for life……
There
is
an
initial
presumption
of
constitutionality of a legislation. Unless one
reaches far beyond unwisdom to absurdity,
irrationality, colourability and the like, the
court must keep its hands off.
Deterrence is a valid punitive component of
sentencing. So a measure of minimum
incarceration of 14 years envisaged in Section
433-A for the gravest class of crimes like
murder
cannot
be
castigated
as
so
outrageous as to be utterly arbitrary and
violative of rational classification between
lifers and lifers and as so blatantly barbarous
as to be irrational enough to be struck down
as ultra vires. Time has not, perhaps, come to
exclude
deterrence
and
even
public
denunciation altogether. Even the submission
that no penal alibi justifies a prisoner being
kept behind the bars if by his conduct,
attainments and proven normalization, he has
become fit to be a free citizen, cannot spell
unconstitutionality.
Though
the
uniform
infliction of a 14-year minimum on the
transformed and the unkempt is an unkind
disregard for redemption inside prison to
overcome the constitutional hurdle much more
material, research results and specialist
reports, are needed. Even for correctional
therapy a long hospitalization in prison may
be needed.
Crl.P.No. 426 of 2009 &
Crl. A. No. 383 of 2009 etc.
25
The classification of persons included under
Section 433-A is not based on an irrational
differentia unrelated to the punitive end of
social defence. The classification cannot be
castigated as one capricious enough to attract
the lethal consequence of Article 13 read with
Article 14.”
In State of Punjab and others v. Joginder Singh and others
[(1990) 2 Supreme Court Cases 661], the afore-referred view
was reiterated and it was held as under:-
“Remissions schemes are introduced to ensure
prison discipline and good behaviour and not to
upset
sentences;
if
the
sentence
is
of
imprisonment for life, ordinarily the convict has to
pass the remainder of his life in prison but
remissions and commutation are granted in
exercise of power under Sections 432 and 433,
CrPC carving out an exception in the category of
those convicts who have already enjoyed the
generosity of executive power on the commutation
of death sentence to one of life imprisonment.
Even in such cases Section 433-A of the Code or
the executive instruction of 1976 does not insist
that the convict pass the remainder of his life in
prison but merely insists that he shall have
served time for at least 14 years. In the case of
other ‘lifers’ the insistence under the 1971
amendment is that he should have a period of at
least 8 ½ years of incarceration before release.
The 1976 amendment was possibly introduced to
make the remission scheme consistent with
Section 433-A of the Code. Since Section 433-A is
prospective, so also would be the 1971 and 1976
amendments.”
33.
The power granted to the President of Pakistan
under Article 45 of the Constitution is unfettered by any
subordinate
legislation.
This
being
a
constitutional
dispensation, the remissions, reprieve or pardon granted
under this shall prevail in the event of a conflict between the
rules and an order passed under Article 45. This is in line
Crl.P.No. 426 of 2009 &
Crl. A. No. 383 of 2009 etc.
26
with this Courts judgment in Abdul Malik’s case which stands
reiterated by this Court in Shah Hussain v. The State (PLD
2009 SC 460). In the latter judgment, it was held as follows:-
“(4) The law laid down in Abdul Malik’s case
that under Article 45 of the Constitution, the
President enjoys unfettered powers to grant
remissions in respect of offences and no clog
stipulated in a piece of subordinate legislation
can abridge this power of the President, is
hereby reaffirmed.”
34.
The fourth point mooted is about the question of
‘reasonable’ classification for the grant of remissions and the
precise formulation is
“Whether any classification would be
permissible in view of the nature of
accusation in case special remission is
granted by the President of Pakistan, in view
of the provisions as enumerated in Article 25
of the Constitution”.
35.
The issue of classification with reference to Article
25 of the Constitution has been a subject of comment of this
Court. Some of those judgments are:-
(i)
Jibendra
Kishore
Achharyya
Chudhry
v.
Provincie of East Paksitan (PLD 1957 SC 9).
(ii)
Waris Meah v. State (PLD 1957 SC 157).
(iii)
Bazal Ahmed Ayyubi v. The West Pakistan
Province (PLD 1957 Lah. 388).
(iv)
Zain Noorani v. Secretary of National Assembly
of Paksitan (PLD 1957 Kar. 1).
(v)
Malik M. Usman v. State (PLD 1965 Lah. 229).
(vi)
East and West Steamship v. Pakistan (PLD
1958 SC 41).
(vii) F.B. Ali’s case (PLD 1957 SC 506).
(viii) Fauji Foundation’s case (PLD 1983 SC 457).
Crl.P.No. 426 of 2009 &
Crl. A. No. 383 of 2009 etc.
27
(ix)
I.A. Suherwani’s case (1991 SCMR 1041).
(x)
Abdul Wali Khan’s case (PLD 1976 SC 57).
(xi)
Aziz Begum’s case (PLD 1999 SC 899)
(xii) Shirin Munir and others v. Government of
Punajb (PLD 1990 SC 295).
36.
In a rather instructive judgment in the case Govt.
of Baluchistan v. Azizullh Memon (PLD 1993 SC 341), this
Court laid down the following guidelines with regard to import
of Article 25 and permissible classification:-
(i)
That equal protection of law does not envisage
that every citizen is to be treated alike in all
circumstances, but it contemplates that persons
similarly situated or similarly placed are to be
treated alike;
(ii)
That reasonable classification is permissible but
it must be founded on reasonable distinction or
reasonable basis;
(iii)
That different laws can validly be enacted for
different sexes, persons in different age groups,
persons having different financial standings,
and persons accused of heinous crimes;
(iv)
That no standard of universal application to test
reasonableness of a classification can be laid
down as what may be reasonable classification
in a particular set of circumstances, may be
unreasonable in the other set of circumstances;
(v)
That a law applying to one person or one class
of persons may be constitutionally valid if there
is sufficient basis or reasons for it, but
classification which is arbitrary and is not
founded
on
any
rational
basis
is
no
classification as to warrant its exclusion from the
mischief of Article 25;
(vi)
That equal protection of law means that all
persons equally placed be treated alike both in
privileges conferred and liabilities imposed;
(vii)
That in order to make a classification
reasonable, it should be based;
(a)
On
an
intelligible
differentia
which
distinguishes persons or things that are
grouped together from those who have been
left out;
Crl.P.No. 426 of 2009 &
Crl. A. No. 383 of 2009 etc.
28
(b)
That the differentia must have rational nexus
to the object sought to be achieved by such
classification.”
37.
The Court further observed that,
“Permissible classification is allowed provided the
classification is founded on intelligible differentia
which distinguishes persons or things that are
grouped together from others who are left out of the
group and such classification and differentia must be
on rational relation to the objects sought to be
achieved by the Act. There should be a nexus between
the classification and the objects of the Act. This
principle symbolizes that persons or things similarly
situated cannot be distinguished or discriminated
while making or applying the law. It has to be applied
equally to persons situated similarly and in the same
situation. Any law made or action taken in violation of
these principles is liable to be struck down. If the law
clothes any statutory authority or functionary with
unguided and arbitrary power enabling it to
administer in a discriminatory manner, such law will
violate equality clause. Thus, the substantive and
procedural law and action taken under it can be
challenged as violative of Articles 8 and 25.”
38.
In Saleem Raza Vs. The State (PLD 2007 Karachi
139), convict under the NAB Ordinance had challenged inter
alia challenged the vires of Section 10(d) of the NAB
Ordinance which mandated that convict under the NAB
Ordinance “shall not be entitled to any remission in his
sentences”. The precise contention was that the said provision
was discriminatory and violative of Article 25 of the
Constitution. A Full Bench of the Sindh High Court relying on
precedent case law of this Court came to the conclusion that
class legislation was forbidden; that permissible classification
is allowed provided it is founded on an intelligible differentia
which distinguishes persons or things that are grouped
together from others who are left out of the group and such
classification and differentia must have relation with the
Crl.P.No. 426 of 2009 &
Crl. A. No. 383 of 2009 etc.
29
object sought to be achieved by the Act. Any law made or
action taken in violation of these principles was liable to be
struck down. Keeping this principle in mind, the Court held
that a comparative examination of provisions contained in
NAB Ordinance and Prevention of Corruption Act, 1947,
indicated that those provisions were substantially the same
and there was no difference in the offences of criminal
misconduct contained in Section 5 of the Prevention of
Corruption Act, 1947, and corrupt practices defined in
Section 9 of the NAB Ordinance. Notwithstanding this
similarity in substantive law, if an accused is convicted by a
Court other than Accountability Court, the convict is entitled
to earn remissions while the NAB convict for the commission
of the same offences under similar set of circumstances was
deprived of the remission on account of section 10(d) of the
NAB Ordinance. The Court, therefore, found this provision to
be ultra vires of the equality clause of the Constitution
because: -
(i) There is no intelligible differentia distinguishing one
group of persons from other group of persons and
thus
there
was
no
reasonable
classification
permissible under the law merely on the basis of
change of forum the classification could not be held
to be permissible as reasonable because such
classification was not based on any real and
substantial distinction.
(ii) Where the “State itself does not make any classification
of persons or things” and leaves it to the discretion of
the Government or any authority to select and
classify persons or things without laying down any
principle or policy to guide the authority in the
exercise of discretion, or a law is made by the State,
whereby certain persons or group of persons are
discriminated without any rational and reasonable
Crl.P.No. 426 of 2009 &
Crl. A. No. 383 of 2009 etc.
30
classification and leaving the other groups of the
same class, the denial of benefit, privilege or right to
one group of persons and allowing the other group of
persons would certainly be a discrimination between
the
persons
or
things
similarly
situated
and
consequently shall be void on account of the
provisions
contained
in
Article
25(1)
of
the
Constitution read with Article 8 thereof. (Emphasis is
supplied).
(iii)
A test of permissible classification is that the
differentia must have rational nexus to the object
sought to be achieved by such classification. The
object of the law has no nexus with the classification
under Section 10(d) of the NAB Ordinance.
39.
The Court did not comment on the vires of a
similar provision in Anti Terrorism Act as the same was not
under challenge but merely observed as follows:-
“We will make a tentative observation to the
effect that the object of enacting Anti Terrorism
Act, 1997, is entirely different from the object
sought to be achieved through the enactment of
NAB ordinance and the provision in every law is
to be considered on its own merits with
reference
to
the
particular
law
under
consideration.”
40.
However, the Court declared following provisions
as intra vires:-
i)
“Sub Section 1 of Section 401 Cr.P.C which
stipulates that the “Provincial Government shall have
no power to suspend or remit any sentence awarded to
an offender under Chapter XVI of the PPC, if an
offence has been committed by him in the name or on
the pretext of Karo Kari, Siah Kari or similar other
customs or practices.
ii)
Rule 201(a) of the Prisons Rules as intra vires
because
there
is
a
reasonable
and
rationale
classification specifying a class of persons and still
leaving the discretion for the Federal or Provincial
Government and Competent Authority in the said
provision.
It
is
provided
that
“notwithstanding
anything contained in these rules, a person convicted
under the charge of espionage / Anti State activities
Crl.P.No. 426 of 2009 &
Crl. A. No. 383 of 2009 etc.
31
shall not be entitled to ordinary and special remission
unless Federal Government or Provincial Government
or competent authority makes a specific order in
writing in this behalf.
iii)
Rule 214-A of the Prisons Rules as it only deprived
those “convicts of special remission or on premature
release on parole if they are sentenced for drug /
narcotics
offences.
The
Court
found
that
the
remissions were not being denied on account of mere
forum of trial but on account of commission of
offences pertaining to drugs and narcotics.”
41.
It has been a consistent view of this Court that
classification is permissible provided the same is backed by
law, rules or is based on reasonable differentia. For the
exercise of authority under Article 45 of the Constitution,
classification of convicts on the basis of accusation is
permissible as the President may, inter alia, like to grant
remissions to those who are not accused of heinous offences
and may refuse it to those accused of serious or terrorism
related offences. In the remission policy under consideration
(see para 23 above), a class of convicts involved in “heinous
crimes” have been excluded from the benefit of remissions. As
explained in paragraphs 24 & 25, most of these exclusions
are backed by law, rule or an intelligible differentia. The
classification
is
reasonable
and
applies
equally
to
convicts/prisoners similarly placed. This differentia is not hit
by equality clause of the Constitution.
42.
In Government of A.P. and others v. M.T. Khan
[(2004) 1 Supreme Court Cases 616], the Indian Supreme
Court was called upon to consider the question of
Crl.P.No. 426 of 2009 &
Crl. A. No. 383 of 2009 etc.
32
classification of accused for purposes of remissions under
similar provisions of its Constitution. The Court held that:-
“It was considered expedient that the power is to be
exercised in respect to a particular category of
prisoners. The Government had full freedom in doing
that and even excluding a category of persons which it
thinks expedient to exclude. To extend the benefit of
clemency to a given case or class of cases is a matter
of policy and to do it for one or some, they need not do
it for all, as long as there is no insidious
discrimination involved. In the case at hand it was not
only due to lack of power, but also because of
conscious decision to exclude in the background of
what it considered to be lack of authority, and in our
view no exception could be taken to the same,
legitimately.”
43.
A classification made by the competent authority
on the basis of intelligible differentia qua accusations/nature
of offences or on the basis of law or rules reflecting the same,
is permissible and would not be derogatory to the
Constitution.
44.
The issues framed by this Court having been
answered, the Human Right Case Nos. 3200-G of 2009, 3742-
P of 2009, 3928-P of 2009, 3887-P of 2009 and 9778-P of
2009 stand disposed of, whereas the main petition (Crl.
Petition No. 426 0of 2009) and Crl. Appeal No. 383 of 2009 be
fixed before appropriate Bench after obtaining orders from the
Hon’ble Chief Justice.
CHIEF JUSTICE
JUDGE
JUDGE
Crl.P.No. 426 of 2009 &
Crl. A. No. 383 of 2009 etc.
33
JUDGE
(Mr. Justice Ch. Ijaz Ahmed has since been retired.
JUDGE
JUDGE
JUDGE
Announced in Open Court on
the of August, 2010.
JUDGE
ISLAMABAD, THE
Khurram Anees P.S./*
APPROVED FOR REPORTING”
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Asif Saeed Khan Khosa
Mr. Justice Ejaz Afzal Khan
Mr. Justice Iqbal Hameedur Rahman
Criminal Petition No. 433 of 2015
(Against the order dated 06.04.2015 passed by the Lahore High
Court, Lahore in Criminal Miscellaneous No. 01 of 2015 in
Criminal Appeal No. 645 of 2015)
Muhammad Adnan alias Dana
…Petitioner
versus
The State, etc.
…Respondents
For the petitioner:
Mr. Tariq Mehmood Butt, ASC
with the petitioner in person.
For the respondents:
N.R.
Date of hearing:
19.08.2015
ORDER
Asif Saeed Khan Khosa, J.: Muhammad
Adnan
alias
Dana petitioner was convicted for an offence under section 9(b) of
the Control of Narcotic Substances Act, 1997 vide judgment dated
23.07.2015 handed down by the learned Additional Sessions
Judge, Faisalabad and was sentenced to rigorous imprisonment for
seven months and a fine of Rs. 9,000/- or in default of payment
thereof to undergo simple imprisonment for two months. It is of
some
importance
to
mention
here
that
at
the
time
of
announcement of the judgment by the trial court the petitioner
Criminal Petition No. 433 of 2015
2
had slipped away and resultantly perpetual non-bailable warrants
of arrest had been issued by the trial court against him. The
petitioner filed Criminal Appeal No. 645 of 2015 before the Lahore
High Court, Lahore challenging his conviction and sentence and
also filed Criminal Miscellaneous No. 01 of 2015 seeking
suspension of his sentence during the pendency of his appeal. The
said appeal was admitted to regular hearing by the High Court on
06.04.2015 but on the same date the miscellaneous application
filed by the petitioner seeking suspension of his sentence was
dismissed because of the conduct of the petitioner displayed before
the trial court. Hence, the present petition before this Court.
2.
Upon filing of this petition by the petitioner the office of this
Court had raised an objection regarding its entertainability in view
of the provisions of Order XXIII Rule 8 of the Supreme Court Rules,
1980 which objection of the office was assailed by the petitioner
before a learned Judge-in-Chamber of this Court through Criminal
Miscellaneous Appeal No. 20 of 2015. On 15.06.2015 a learned
Judge-in-Chamber of this Court had directed the main petition to
be fixed before a Bench of this Court which would consider the
question of maintainability of this petition and would then decide
the petition on its merits, if need be. This petition was fixed before
a Bench of this Court on 29.06.2015 and on that occasion the
hearing of the matter was adjourned with an observation that the
question of maintainability of this petition would be adjudicated
upon by the Court on the next date of hearing besides considering
the merits of the case, if found necessary. The present petition has
now been fixed for hearing today and we have heard the learned
counsel for the petitioner at some length. The learned counsel for
the petitioner has mainly contended that after recording of his
conviction and sentence by the trial court the petitioner had
surrendered before the High Court at the time of hearing of his
miscellaneous application seeking suspension of sentence and,
thus, the High Court ought to have decided the said miscellaneous
application on its merits. In support of this submission the learned
Criminal Petition No. 433 of 2015
3
counsel for the petitioner has placed reliance upon the case of
Mazhar Ahmed v. The State and another (2012 SCMR 997).
3.
After hearing the learned counsel for the petitioner and going
through the relevant record of the case appended with this petition
we have observed that the objection raised by the office to
entertainability of the present petition is grounded in the
provisions of Order XXIII Rule 8 of the Supreme Court Rules, 1980
which read as follows:
“8.
Pending the disposal of a petition under this Order, the
Court may direct that execution of any order for imprisonment or
fine, against which leave to appeal is sought, be stayed, on such
terms as the Court may deem fit:
Provided that unless surrender is first made to an order of
imprisonment, as above, the petition shall not be entertained.
Provided further, petitions involving bail before arrest may
be entertained and posted for hearing if the petitioner undertakes
to appear and surrender in Court.”
A bare reading of the above mentioned first proviso to Rule 8 of
Order XXIII of the Supreme Court Rules, 1980 makes it
abundantly clear that a criminal petition is entertainable by the
office of this Court only after a surrender is made by the petitioner
to an order of imprisonment outstanding against him and after
entertaining of such a petition after such surrender to the order of
imprisonment this Court may stay execution of the order of
imprisonment or fine. Surrender to an order of imprisonment is,
thus, a condition precedent for entertainment of such a petition
and it is only after a valid and proper entertainment of such
petition that the relief regarding stay of execution of the order for
imprisonment or fine can be granted. It is also quite clear that the
requirement of surrender to an order of imprisonment pertains
only to criminal petitions involving an order of imprisonment (e.g.,
cases where a conviction has been recorded or upheld and an
express order has been passed that the petitioner may be taken
into custody or cases where bail of the petitioner has been
disallowed or cancelled and an order has been passed that he may
be taken into custody) and not to criminal petitions seeking bail
Criminal Petition No. 433 of 2015
4
before arrest in a criminal case where no order of imprisonment
has so far been passed. In the case in hand on 27.03.2015 the trial
court had convicted and sentenced the petitioner for an offence
under section 9(b) of the Control of Narcotic Substances Act, 1997
and had simultaneously passed an order that the petitioner, who
was on bail till then, was to be arrested and lodged in a jail to serve
his sentence of imprisonment and upon slipping away of the
petitioner from the trial court on that occasion the said court had
also issued perpetual non-bailable warrants for the petitioner’s
arrest. It is, thus, obvious that not one but two orders of
imprisonment already stand outstanding against the petitioner and
admittedly he has not surrendered to the said orders of
imprisonment so far. It goes without saying that surrender to an
order of imprisonment is not the same thing as surrendering before
a higher court without actually being imprisoned in compliance of
a judicial order passed in that regard. In this view of the matter we
have entertained no manner of doubt that the present petition filed
by the petitioner is not entertainable till he surrenders to the above
mentioned orders of imprisonment, as made explicit by the first
proviso to Rule 8 of Order XXIII of the Supreme Court Rules, 1980.
Reliance placed by the learned counsel for the petitioner upon the
case of Mazhar Ahmed v. The State and another (supra) has been
found by us to be inapt because in that case no discussion was
made about the provisions of the first proviso to Rule 8 of Order
XXIII of the Supreme Court Rules, 1980 and at the fag end of the
judgment passed by this Court in that case a reference was made
to the second proviso to Rule 8 of Order XXIII of the Supreme
Court Rules, 1980 in the context of a precedent case cited before
the Court. The judgment passed by this Court in that case is not
relevant to the point in issue in the present petition because what
is relevant to the present petition is the first proviso to Rule 8 of
Order XXIII of the Supreme Court Rules, 1980 and not the second
proviso to the said Rule. We have also observed that in the case of
Musharaf Khan v. The State (1985 SCMR 900) leave to appeal had
been granted by this Court to consider as to whether a person
could approach this Court for his bail before arrest in a criminal
Criminal Petition No. 433 of 2015
5
case by surrendering before this Court or not but that issue again
is not relevant to the present petition as the present petition
pertains to suspension of sentence or stay of execution of an order
for imprisonment and not to bail before arrest which matter is
regulated by the second proviso to Rule 8 of Order XXIII of the
Supreme Court Rules, 1980 and not the first proviso to that Rule.
4.
For what has been discussed above we have found that the
present petition is not entertainable because the mandatory
requirement
of
surrender
to
an
order
of
imprisonment
contemplated by the first proviso to Rule 8 of Order XXIII of the
Supreme Court Rules, 1980 has not been fulfilled by the petitioner.
In this view of the matter the objection raised by the office
regarding entertainability of this petition is sustained and this
petition is dismissed on that score.
Judge
Judge
Judge
Islamabad
19.08.2015
Not approved for reporting.
Arif
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Syed Mansoor Ali Shah
Mr. Justice Qazi Muhammad Amin Ahmed
Mr. Justice Amin-ud-Din Khan
Criminal Petition No.438 of 2021
(Against the judgment dated 17.05.2021passed by
the Peshawar High Court Peshawar in Cr. Misc.
B.1037-P/2020)
Ghazan Khan
…Petitioner(s)
Versus
Mst. Ameer Shuma and another
…Respondent(s)
For the Petitioner(s):
Mr. Asad Ullah Khan Chamkani, ASC
For the State:
Mr. Zahid Yousuf Qureshi, Addl. A.G. KP
with Mazhar Ali, ASI P.S. Katang,
Mardan
Date of hearing:
17.05.2021.
ORDER
Qazi Muhammad Amin Ahmed, J.- Non suited
throughout in his quest to secure bail, lastly by a learned Judge-in-
Chamber of Peshawar High Court Peshawar vide impugned order
dated 12th of April, 2021, Ghazan Khan, petitioner, arrayed as one
of the accused in a case of murderous assault, registered with
Police Station Katlang District Mardan, seeks leave to appeal
therefrom.
It is alleged that on the eventful day i.e. 10.2.2021, he along
with co-accused, targeted Sannan Ahmad PW who endured the
assault with five entry wounds, confirmed by a medico legal
certificate of even date; a monetary dispute is cited as motive for the
crime. Unscathed themselves, nonetheless, the accused agitated a
Criminal Petition No.438 of 2021
2
cross version on the strength of a fire shot sustained by a bubalus,
owned by one Shah Muhammad, examined at a veterinary center
on the following day to blame the injured as being aggressor in the
episode.
2.
Heard. Record perused.
3.
Reliance upon a statement, purportedly made by the injured
and recorded by the Investigating Officer in case diary dated
11.02.2020, surprisingly annexed with the petition, wherein he
exclusively blamed Hashmand co-accused for the injuries on his
person is entirely beside the mark, besides being violative of
subsection 2 of section 172 of the Code of Criminal Procedure, 1898
and, thus, this petition, with disapproval, is liable to be dismissed
on this ground alone. Even otherwise, having regard to the totality
of circumstances whereunder the petitioner is alleged to have
actively participated in the occurrence, that squarely constituted
mischief of section 324 of the Pakistan Penal Code, 1860,
punishable with imprisonment for a period of ten years, attracting
the bar that cannot be circumvented in the face of ‘reasonable
grounds’ as contemplated by section 497 of the Code, view taken
by the courts below being well within the remit of law calls for no
interference. Petition fails. Leave declined.
Judge
Judge
Judge
Islamabad, the
17thMay, 2021
Not approved for reporting
Azmat/-
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE MUNIB AKHTAR
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
CRIMINAL PETITION NO. 442 OF 2021
(On appeal against the order dated 09.04.2021 passed by
the Peshawar High Court, Peshawar in Cr. Misc. (BA) No.
976-P/2021)
Saeed Yousaf
… Petitioner
VERSUS
The State and another
… Respondents
For the Petitioner:
Mr. Dar-ul-Salam, ASC
For the State:
Mr. Shumayl Aziz, Addl. A.G. KPK
Mr. Anwar Ali, Inspector
For the Complainant:
In person
Date of Hearing:
15.06.2021
ORDER
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through this petition
under Article 185(3) of the Constitution of Islamic Republic of
Pakistan, 1973, the petitioner seeks post-arrest bail in case
registered vide FIR No. 687 dated 20.11.2019 under Sections
302/324/34 PPC at Police Station Akora Khattak, District
Nowshera. The same relief was denied to him by the learned Trial
Court as also by the High Court vide impugned order.
2.
As per contents of the crime report, the deceased was
taking children to school in his Datsun car. When he saw the
accused armed with firearms, he informed the complainant through
mobile to reach at the place of occurrence. When the complainant
and his nephew reached there, co-accused Abid started firing with
Kalashnikov on the deceased from the front side whereas the co-
accused Iqbal started firing at the deceased from backside, due to
which he lost his life. The petitioner along with the three co-accused
also fired at the complainant and his nephew Mehmood due to
which they received injuries. The motive was stated to be a quarrel
which took place between the deceased and the accused.
3.
Learned counsel for the petitioner inter alia contended
that the petitioner has been falsely involved in the instant case by
Criminal Petition No. 442/2021
2
the complainant against the actual facts and circumstances of this
case in connivance with the local police; that in the FIR though the
petitioner has been assigned specific role of causing injury on the
injured PWs, however, the medical officer while examining the
injured PWs has clearly opined that the injuries on both the injured
PWs are suspected, which clearly reflects that the medical officer
was doubtful about the infliction of the injuries as stated in the crime
report; that though the co-accused of the petitioner are still at large
but the criminal liability cannot be shifted from one accused to
another; that the petitioner is behind the bars and during course of
investigation, no recovery has been affected from him, which further
lends support to the version of the petitioner claiming innocence in
the case. Lastly it has been argued that the investigation is complete
and the petitioner is no more required for further investigation and
he is entitled for the concession of bail on this score alone.
4.
On the other hand, learned Additional Prosecutor
General and the complainant in person have supported the
impugned order declining bail to the petitioner. Learned Law Officer
contended that the petitioner has been specifically nominated in the
FIR, therefore, he does not deserve any leniency by this Court.
5.
We have heard learned counsel for the petitioner as also
learned Law Officer and have perused the record with their
assistance.
There is no denial to this fact that there are four persons
involved in the case. The role of causing firearm injury to the
deceased is ascribed to the co-accused of the petitioner whereas the
only role attributed to the petitioner is that he caused injury to the
injured PWs. During medical examination of the injured PWs, it has
been specifically mentioned in the medico legal report that the
injuries sustained by both the injured PWs are suspected. Even
otherwise, there is no specification of injury caused to the injured
PWs and even the nature of injury has not been described by the
Doctor. We have been informed that from the place of occurrence,
four empties were recovered but since no weapon of offence has
been recovered, this cannot be used against the petitioner. It has
been brought in the notice of the Court that co-accused of the
petitioner are still at large and there is no likelihood of their arrest in
near future. We have taken care of this aspect of the case. Criminal
liability cannot be shifted from one person to the other merely on the
Criminal Petition No. 442/2021
3
ground that the co-accused of the petitioner are still at large. Perusal
of the record reveals that one of the grounds on which the learned
courts below have refused bail to the petitioner is that he remained
absconder after the incident. It is now settled that an accused can
be granted bail if the case of the petitioner is otherwise made out on
merits and mere absconsion would not come in his way. In Rasool
Muhammad Vs. Asal Muhammad (PLJ 1995 SC 477), this court has
held that disappearance of a person named as a murderer after
occurrence is but natural whether named rightly or wrongly. This
Court in Muhammad Tasaweer Vs. Hafiz Zulkarnain (PLD 2009 SC
53) and Mitho Pitafai Vs. State (2009 SCMR 299) has held that mere
absconsion is not conclusive proof of guilt of an accused person. It is
only a suspicious circumstance against an accused that he was
found guilty of the offence. However, suspicions after all are
suspicions. The same cannot take the place of proof. The value of
absconsion, therefore, depends on the facts of each case and bail
can be granted if an accused has good case for bail on merit and
mere absconsion would not deprive him bail, if otherwise the case
of the petitioner is of “further inquiry” as envisaged under Section
497(2) Cr.P.C and further no useful purpose would be served while
keeping him behind the bars till the conclusion of the trial pending
adjudication before the Trial Court.
6.
For what has been discussed above, the petitioner has
made out a case for grant of bail. Consequently, we convert this
petition into appeal, allow it, set aside the impugned order and
admit the petitioner to bail, subject to his furnishing bail bonds in
the sum of Rs.500,000/- (rupees five hundred thousand) with one
surety in the like amount to the satisfaction of learned Trial Court.
JUDGE
JUDGE
Islamabad, the
15th of June, 2021
Approved For Reporting
Khurram
|
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"url": ""
}
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