2007 S C M R 393

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday, Faqir Muhammad Khokhar and Ch. Ijaz

Ahmed, JJ

MUHAMMAD YOUNAS and others----Petitioners

Versus

Mst. PERVEEN alias MANO and others----Respondents

Civil Petitions Nos.2116 and 2355-L of 2005, decided on 13th October, 2006.

(On appeal from the judgment, dated 31-10-2005 of the Lahore High Court, Lahore
passed in Writ Petition No.13094 of 2005).

(a) Control of Narcotic Substances Act (XXV of 1997)---

----Ss. 6, 7 & 9---Criminal Procedure Code (V of 1898), S.173---Narcotic Substance,

recovery of---Accused found to be innocent during investigation--Validity--
Competent Court vested with jurisdiction either to accept or not to accept police
report recommending discharge of accused or cancellation of case against him---
Principles.

The police is required to submit its report of investigation under section 173, Cr.P.C.,
to the Special Court established under the provisions of sections 45 and 46 of the
Control of Narcotic Substances Act, 1997, which may or may not agree with same,
after conscious application of judicial mind and consideration of the material placed
before it. It is not obligatory for the competent Court to accept police report
recommending the discharge or cancellation of the case and may proceed to take
cognizance of the offence depending upon the facts and circumstances of each case.

Safdar Ali v. Zafar Iqbal and others 2002 SCMR 63 = PLJ 2002 SC 304; Federation of
Pakistan through Secretary, Finance, Islamabad and another v. Malik Mumtaz Hussain
and 4 others 1997 SCMR 299 and Muhammad Alain and another v. Additional
Secretary to Government of N.-W.F.P. Home and Tribal Affairs Department and 7
others PLD 1987 SC 103 rel.

(b) Control of Narcotic Substances Act (XXV of 1997)---

----Ss. 6, 9 & 9(c)---Criminal Procedure Code (V of 1898), S.173---Constitution of

Pakistan (1973), Arts.199 & 185(3)---Constitutional petition before High Court--
Quashing of F.I.R.---Charas and Opium, recovery of---F.I.R., registration of---
Superintendent of Police (Investigation) finding F.I.R. to be false---Quashment of
F.I.R. by High Court on basis of ipsi dixit of police---Validity---High Court should
have directed police to submit challan one way or the other before Special Court---
High Court had passed impugned order without satisfying as to relevancy or
sufficiency of investigation material justifying quashment of F.I.R.---Supreme Court
set aside impugned order while directing Investigating Agency to place collected
material before Special Court which would he at liberty to act in accordance with
law.

(c) Control of Narcotic Substances Act (XXV of 1997)---

----Ss. 21 & 22--Criminal Procedure Code (V of 1898), S.173---Arrest of accused

and/or seizure of narcotics in violation of provisions of Ss.21 & 22 of Control of
Narcotic Substances Act, 1997---Effect---Guilt or innocence of accused would not
depend on question of competence or otherwise of Police Officer to investigate
offence---Trial of accused would not be vitiated merely for the reasons that the case
had been investigated by an officer not authorized to do so--Court would determine
guilt or innocence of accused only on basis of evidence produced irrespective of the
manner in which it was brought before the Court--Purpose of enacting such provisions
stated.
Page No. 1 of 4
Under sections 21 and 22 of the Control of Narcotic Substances Act, 1997, only an
officer of the rank of Sub-Inspector or equivalent or above may exercise the powers of
arrest and seizure of narcotics. But this is not an absolute rule. There may be cases of
extreme urgency requiring prompt action, where an accused is caught with narcotics
in his possession by a Police Officer of a lower rank. Can it be said that such Police
Officer should just let him go with the narcotics? The answer would certainly be in
the emphatic "No". The guilt or innocence of an accused does not depend on the
question of competence or otherwise of a Police Officer to investigate the offence. A
trial of an accused is not vitiated merely on the ground that the case has been
investigated by an officer who is not authorized to do so unless a contrary intention
appears from the language of a statute. The competent Court would proceed to
determine the guilt or innocence of an accused on the basis of the evidence produced
before it irrespective of the manner in which it is brought before it.

In a proper case, a Police Officer, if guilty of deliberate usurpation of power and

violation of a statute, may render himself liable to disciplinary or penal action or both
in accordance with law. The purpose of enacting protective provisions of sections 21
and 22 of the Act seems to be that normally the cases of narcotics being of serious
nature should be handled by more responsible Police Officers.

M. Abdul Latif v. G.M. Paracha and others 1981 SCMR 1101; State through
Advocate-General, Sindh v. Bashir and others PLD 1997 SC 408; The Crown v.
Mehar Ali PLD 1956 FC 106; M.S.K, Ibrat v. The Commander-in-Chief, Royal
Pakistan Navy and others PLD 1956 SC 264; Ahmad Khan v. Rasul Shah and others
PLD 1975 SC 66; Muhammad and others v. The State 1984 SCMR 954 and The State
v. Sohail Ahmed and 4 others PLD 1990 FSC 29 rel.

Ch. Talib Hussain, Advocate-on-Record for Petitioners (in C.P. No.2116-L of 2005
and for Respondent No.3 in C.P. No.2355-L of 2005).

Muhammad Akbar Tarar, Additional Advocate-General, Punjab for the State (in C.P.
No.2355-L of 2005).

Rao Muhammad Yusuf Khan, Advocate-on-Record (In C.P. No.2355-L of 2005 and
Respondents Nos.2 and 3 in C.P. No.2116-L of 2005).

Sh. Najamul Hassan, Advocate Supreme Court and Haji Muhammad Rafi Siddiqui,
Advocate-on-Record for Respondent No.1 (in both Petitions).

Date of hearing: 13th October, 2006.

JUDGMENT

FAQIR MUHAMMAD KHOKHAR, J, --- The petitioner, Muhammad Younas, an

A.S.-I. during course of investigation of a narcotics case conducted a raid and got
case F.I.R. No.407 of 2005 dated 24-6-2005 registered against the respondent No.1
Mst. Perveen alias Mano and her son Irfan, with Police Station Harbanspura, District
Lahore under sections 6/9 and 9(c) of Act for recovery of Charas weighing 79 Kgs.
and 4 Kgs. Opium.

2. The respondent No.1 filed Writ Petition No.13094/Q of 2005 for quashment of
F.I.R. No.407 of 2005. The Superintendent of Police (Investigation), Lahore informed
the High Court that the said F.I.R. was found to be false and that the narcotic
substances had actually been recovered from some other persons. A learned Division
Bench of the Lahore High Court, Lahore, vide impugned judgment dated 31-10-2005,
quashed the F.I.R. and also directed Major Mubashar Ullah, S.S.P. and Superintendent
Police (Investigation) Lahore, to conclude the investigation as to wherefrom the
delinquent police officials had obtained two Maunds of Charas and to submit report to
the High Court for further action against them. Hence, both these petitions one by
Muhammad Younas A.S.-I. complainant, and the other by the State, for grant of leave
to appeal.

3. The learned Advocate-on-Record for the petitioner Muhammad Younas argued that
the quashment or otherwise of F.I.R. was a matter falling within the domain of the
Page No. 2 of 4
Special Court. The proper procedure was not followed by the High Court as it was
after the submission of a report under section 173, Cr.P.C. that the Special Court was
to determine by going through the entire material collected by the prosecution,
whether to cancel the case or to proceed with its trial notwithstanding a negative
report of the police. It was lastly contended that the provisions of Article 18(6) of the
Police Order, 2002, were not kept in view by the High Court while exercising its
constitutional jurisdiction for entrustment of investigation to other Senior Police
Officers.

4. The learned Additional Advocate-General, Punjab also submitted that respondent

Mst. Perveen alias Mano had a previous history of her involvement in drug cases. She
was challaned in cases F.I.R. No.45 dated 14-2-1997 and F.I.R. No.130 dated 10-5-
2000 registered at Police Station Gujarpura, Lahore under section 6/9 of the Act. He
further contended that the High Court had not examined the material collected by the
police while passing the impugned order.

5. On the other hand, the learned counsel for the respondent Mst. Perveen alias Mano
submitted that F.I.R. No.407 of 2005 was thoroughly investigated by senior Police
Officers of the rank of Superintendent of Police and the same was found to be false. It
was next contended that as required by the provisions of sections 21 and 22 of the Act
only an officer not below the rank of Sub-Inspector of Police or equivalent could
exercise the powers of search, seizure of narcotics and arrest of the accused. The
petitioner/complainant Muhammad Younas, being as Assistant Sub-Inspector, was not
authorized to do so. Therefore, the High Court had correctly quashed the F.I.R.

6. We have heard the learned counsel for the parties as well as the learned Additional
Advocate-General, Punjab at length and have also perused the available record with
their assistance. We find that there are serious allegations against the respondent No.1
and her son Irfan for their involvement in the narcotics case. The police is required to
submit its report of investigation under section 173, Cr.P.C., to the Special Court
established under the provisions of sections 45 and 46 of the Act, which may or may
not agree with same, after conscious application of judicial mind and consideration of
the material placed before it. It is not obligatory for the competent Court to accept the
police report recommending the discharge or cancellation of the case and may
proceed to take cognizance of the offence depending upon the facts and circumstances
of each case. Reference may usefully be made to the cases of Safdar Ali v. Zafar Iqbal
and others 2002 SCMR 63 = PLJ 2002 SC 304; Federation of Pakistan through
Secretary, Finance, Islamabad and another v. Malik Mumtaz Hussain and 4 others
1997 SCMR 299 and Muhammad Alam and another v. Additional Secretary to
Government of N.-W.F.P. Home and Tribal Affairs Department and 7 others PLD
1987 SC 103. The impugned order of the High Court clearly shows that the High
Court had acted on the ipsi dixit of the police in quashing the F.I.R. and does not seem
to have scanned the entire material collected by the prosecution. It would have been
appropriate if the police was directed to submit its challan one way or the other before
the Special Court.

7. The other argument of the learned counsel for the respondent No.1 as to the
violation of the provisions of sections 21 and 22 of the Act needs to be dealt with.
Ordinarily, only an officer of the rank of Sub-Inspector or equivalent or above may
exercise the powers of arrest and seizure of narcotics. But this is not an absolute rule.
There may be cases of extreme urgency requiring prompt action, where an accused is
caught with narcotics in his possession by a Police Officer of a lower rank. Can it be
said that such Police Officer should just let him go with the narcotics? The answer
would certainly be in the emphatic "No". The guilt or innocence of an accused does
not depend on the question of competence or otherwise of a Police Officer to
investigate the offence. A trial of an accused is not vitiated merely on the ground that
the case has been investigated by an officer who is not authorized to do so unless a
contrary intention appears from the language of a statute. The competent Court would
proceed to determine the guilt or innocence of an accused on the basis of the evidence
produced before it irrespective of the manner in which he is brought before it. A
somewhat similar view was taken in the cases of M. Abdul Latif v. G.M. Paracha and
others 1981 SCMR 1101; State through Advocate-General, Sindh v. Bashir and others
PLD 1997 SC 408; The Crown v. Mehar Ali PLD 1956 FC 106; M.S.K. Ibrat v. The
Page No. 3 of 4
Commander-in-Chief, Royal Pakistan Navy and others PLD 1956 SC 264; Ahmed
Khan v. Rasul Shah and others PLD 1975 SC 66 at pages 81, 88 and 151=152;
Muhammad and others v. The State 1984 SCMR 954 and The State v. Sohail Ahmed
and 4 others PLD 1990 FSC 29. We may however, observe that in a proper case, a
Police Officer., if guilty of deliberate usurpation 1 of power and violation of a statute,
may render himself liable to disciplinary or penal action or both in accordance with
law. The purpose of enacting protective provisions of sections 21 and 22 of the Act
seems to be that normally the cases of narcotics being of serious nature should be
handled by more responsible Police Officers.

8. In our view, the impugned order of the High Court is not sustainable at law. The
same was passed without satisfying as to the relevancy or sufficiency of the
investigation material justifying the quashment of the F.I.R.

9. For the foregoing reasons, these petitions are converted into appeals and the same
are allowed. The impugned order dated 31-10-2005, passed by the High Court of
quashing F.I.R. No.407 of 2005 is set aside and the Writ Petition No.13094 of 2005 is
dismissed. The material collected by the Investigating Agency shall be placed before
the Special Court which shall be at liberty to act in accordance with law. There shall
be no order as to costs.

10. A copy of this judgment shall be transmitted to the Federal Secretaries of Interior
and Narcotics Divisions, Government of Pakistan, Islamabad as well as to the
Inspectors-General of Police of the Provinces for taking necessary action and issuing
instructions in the matter.

S.A.K./M-180/SC Appeals accepted.

1
Unlawful takeover of control or of government.
Page No. 4 of 4
P L D 2006 Supreme Court 316

Present: Khalil-ur-Rehman Ramday and Raja Fayyaz Ahmed, JJ

Syed MUHAMMAD AHMED---Petitioner

Versus

THE STATE and others---Respondents

Civil Petition No.507-L of 2005, decided on 8th March, 2006.

(On appeal from the order dated 23-2-2005 of the Lahore High Court, Lahore, passed in
Writ Petition No.16975 of 2004).

Penal Code (XLV of 1860)---

----Ss. 420/467/468/471---Criminal Procedure Code (V of 1898), Ss.4(1), 63, 173 &

190---Police Rules, 1934, R.24.7---Constitution of Pakistan (1973), Art.185(3)---High
Court had directed that the petitioners before it in the constitutional petition who were
accused persons in an F.I.R., would not be treated as accused and would not be challaned
in the case, only because the Investigating Officer had informed the High Court that the
involvement of the said accused persons in the case could not he established and that they
had not forged any document or offered any kind of inducement to the complainant to
secure any pecuniary benefit---Investigation according to S.4(1), Cr.P.C. only meant
collection of evidence and no more---Determination of guilt or innocence of the accused
persons was an obligation cast on the Courts of law which task could never be permitted
to be delegated to the police officers investigating a case---Provisions of' S.63, Cr.P.C.
had prohibited discharge of an accused person except under a special order of a
'Magistrate---Rule 24.7 of the Police Rules, 1934, had also prohibited cancellation of
F.I.Rs without the orders of the Magistrate---Provisions of S.173, Cr.P.C. had provided
only that after the available material had been collected by the S.H.O. during
investigation, result of the same had to be reported to the Magistrate competent to take
cognizance under S.190, Cr.P.C. and thereafter the Magistrate was to decide whether the
accused did or did not deserve to be tried---Impugned order passed by High Court only
on the alleged opinion of the Investigating Officer, therefore, was not sustainable and the
same was set aside by converting the petition for leave to appeal into appeal which was
allowed---S.H.O. was directed to proceed with the matter in accordance with law.

S.M. Zameer Zaidi, Advocate Supreme Court with Mahmudul Islam, Advocate-on-
Record for Petitioner.

Mian Ghulam Hussain, Advocate Supreme Court with Fateh Khan, A.S.I. for the State.

Nemo for Respondent No.2.

Syed Zahid Hussain Bokhari, Advocate Supreme Court with Haji M. Rafi Siddiqui,
Advocate-on-Record for Respondent No.3.

Date of hearing: 8th March, 2006.

ORDER

KHALIL-UR-REHMAN RAMDAY, J.---We are pained to see the impugned order

wherein the learned Judge in Chamber had directed that the petitioners before his
Lordship who were the accused persons of F.I.R. No.218 of Police Station Khushab
would "not be treated as accused and would not be challaned" in the said case only
because some S.I./I.O. had informed the learned High Court that the involvement of the
said accused persons in the said case could not be established and further that the said
accused persons had not forged any document or offered any kind of inducement to the
complainant to secure any pecuniary benefit.

Page No. 1 of 2
2. A bare perusal of section 4(1) of the Cr.P.C. should have been sufficient to acquaint us
with the fact that the investigation only meant collection of evidence and no more. We
need to remind ourselves and keep in mind that the determination of guilt or innocence of
the accused person was an obligation cast on the Courts of law which task could never be
permitted to be delegated to the Police Officers investigating a case. It was for this reason
that the provisions of section 63 of the Cr.P.C. prohibited discharge of an accused person
except under a special order of a Magistrate and likewise the provisions of Rule 24.7 of
the Police Rules of 1934 prohibited cancellation of F.I.Rs. without the orders of a
Magistrate.

3. The provisions of section 173,Cr.P.C. provide only that after the available material had
been collected by the S.H.O. during the course of an investigation then the result of the
same had to be reported to the c Magistrate competent to take cognizance under section
190, Cr.P.C. and thereafter it was for the competent Magistrate/Court to decide whether
an accused person did or did not deserve to be tried.

4. In this view of the matter, we find that the impugned order passed by the learned High
Court only on alleged opinion of an I.O. could not be sustained. This petition is,
consequently, converted into an appeal which is allowed as a result whereof the said
impugned order is set aside and the S.H.O. of the concerned Police Station is now
directed to feel free to proceed with the matter in accordance with law.

N.H.Q./M-40/S Appeal allowed.

Page No. 2 of 2
2006 S C M R 1920

[Supreme Court of Pakistan]

Present: Ch. Ijaz Ahmad and Syed Jamshed Ali, JJ

HIDAYATULLAH and others----Petitioners

Versus

THE STATE through Advocate-General, N.-W.F.P. Peshawar High Court,

Peshawar----Respondent

Criminal Petitions Nos.105, 106, and 115-P of 2005, decided on 5th May, 2006.

(Against the judgment, dated 17-8-2005 passed by Peshawar High Court in Criminal
Miscellaneous Q. Nos.87, 132 and 87 respectively).

(a) Penal Code (XLV of 1860)---

----Ss. 419, 420, 468 & 471-Prevention of Corruption Act (II of 1947), S. 5 (2)---
Criminal Procedure Code (V of 1898), Ss.63, 195 (1) (c), 435, 439 & 561-A---
Constitution of Pakistan (1973), Art. 185 (3)---Inherent jurisdiction of High Court,
exercise of---Discharge of accused---Exercise of discretion by Magistrate---
Principles---Accused were discharged by Magistrate under S.63 Cr.P.C. on the
ground that alleged forged document was also subject-matter of civil suit pending
before civil court and no complaint was filed by the court concerned---Order passed
by Magistrate was maintained by Lower Appellate Court but High Court in exercise
of powers under S.561-A, Cr.P.C. set aside the discharge order---Validity---
Magistrate concerned had discretion to pass order under S.63 Cr.P.C. to discharge
accused persons---Such discretion must be exercised by the concerned Magistrate
justly and fairly; in case discharge order was passed by Magistrate mechanically
without application of his independent mind to the facts of case, blindfolded
acceptance of a recommendation of police in that regard, perversity of reasoning and
adoption. of a procedure which offended against letter and spirit of law, relating to
discharge, then High Court had ample jurisdiction to interfere and set aside such
order under S.561-A, Cr.P.C.---Magistrate while concurring with a police report
submitted under S.173, Cr.P.C. did not act as criminal Court subordinate to the
Court of Session and High Court---Such order of Magistrate could not be set aside,
revised or modified under the provisions of Ss.435 and 439, Cr.P.C. but it was
amenable to inherent jurisdiction of High Court under S.561-A, Cr.P.C., provided
the order amounted to abuse of process of Court---Magistrate could effectively grant
release to a person who was

arrested or detained without sufficient cause---High Court was vested with authority
under S.561-A, Cr.P.C. to exercise such power to secure ends of justice, suppress patent
mischief if non-interference with the order would perpetuate injustice, in case the
Magistrate concerned had passed the order without judicial application of mind---
Supreme Court did not find any infirmity or illegality in the judgment passed by High
Court---Leave to appeal was refused.

Rasool Khan and others v. Haji Banaras Khan and others PLD 2004 SC 364; Ashiq
Hussain v. Sessions Judge, Lodhran and 3 others PLD 2001 Lah. 271 and Abdul Wahab
Khan v. Muhammad Nawaz and 7 others 2000 SCMR 1904 distinguished.

Muhammad Shafi v. Deputy Superintendent of Police PLD 1992 Lah. 178 and Eng.
Bashir Ahmad v. Senior Superintendent of Police, Islamabad 2002 SCMR 239 rel.

(b) Precedent---

----Citing of judgment---Principle---Every judgment must be read as applicable to the

particular facts proved, or assumed to be proved---Generality of impressions, which may

Page No. 1 of 5
be found there are not intended to be expositions of the whole law but governed and
qualified by particular facts of the case in which such expressions are to be found.

Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213 rel.

Abdul Samad Khan, Advocate Supreme Court and Mir Adam Khan, Advocate-on-Record
for Petitioners (in all cases).

Tasleem Hussain, Advocate Supreme Court for the State.

Javed A. Khan, Advocate Supreme Court for the Complainant (in all cases).

ORDER

CH. IJAZ AHMAD, J.---We intend to decide the captioned petitions by one
consolidated order as these arise out of the same impugned judgment of the Peshawar
High Court, dated 17-8-2005.

2. The detailed facts have already been mentioned in the impugned judgment. However,
necessary facts out of which the present petitions arise are that Faqir Gul and
Naimatullah, brothers inter se, preferred a complaint addressed to the Director, Anti-
Corruption Peshawar for taking punitive action under the law against their brother
Hadayatullah, Shakeel Ahmed petition-writer concerned Record-keeper and concerned
incharge Record Room. The contents of complaint reveal that House No.770/2961 in
question is the legacy of their father and his legal heirs are co-sharers in the disputed
house. Petitioners allegedly prepared collusive, fictitious, ineffective and fraudulent deed
in the preceding date on a stamp-paper allegedly signed by the stamp-vendor who had
already died and prepared relinquishment deed, dated 12-10-1998 on behalf of the
complainant which was forged and fraudulent. The complaint was inquired into and on
the basis of the findings of the inquiry F.I.R. No.2 of 2005 was registered at Police
Station ACE, Peshawar, under sections 419, 420, 468, 471, P.P.C. read with section 5(2),
P.C. Act on 29-1-2005. The learned Judicial Magistrate, however, discharged the
petitioners under section 63 of Code of Criminal Procedure, 1898 vide orders, dated 1-2-
2005 on the ground that respondents have filed suit for declaration against the petitioners
and seven others in the Civil Court, Peshawar wherein petitioners and others filed written
statement on 27-5-2004 and relied on relinquishment deed dated 12-10-1998 in reply to
pai'a.6 of the plaint. The said suit is pending adjudication and said document was
produced by petitioners/defendants during proceedings pending before competent civil
court and that complaint could only be filed by the Court in view of section 195(1)(c) of
the Cr.P.C.

3. The State and complainants being aggrieved filed revision petitions under section 439-
A read with section 435, Cr.P.C. in the Court of Additional Sessions Judge, Peshawar who
dismissed the same vide consolidated order, dated 19-3-2005. Respondents being
aggrieved filed petitions under section 561-A of Cr.P.C. in the Peshawar High Court
which were accepted vide impugned judgment, dated 17-8-2005. Hence, the present
petitions.

4. The learned counsel for the petitioner submits that learned Magistrate had discharged
the petitioner under section 63 of Cr.P.C., therefore, petitions filed by the respondents
before the Peshawar High Court were not maintainable, learned High Court had
misunderstood the facts of the case as the respondent had already filed a suit against the
petitioner in the civil Court wherein petitioner had filed written statement whereas the
learned High Court has mentioned in the impugned judgment that suit was not filed, the
impugned judgment of the High Court was not in consonance with the law laid down by
the superior Courts. He strenuously pressed the bar of section 195(1)(c), Cr.P.C. to the
registration of the criminal case. In support of his contention, he relied upon the
following judgments:

(i) Rasool Khan and others v. Haji Banaras Khan and others PLD 2004 SC 364;
(ii) Ashiq Hussain v. Sessions Judge, Lodhran and 3 others PLD 2001 Lah. 271
and (iii) Abdul Wahab Khan v. Muhammad Nawaz and 7 others 2000 SCMR 1904.

Page No. 2 of 5
5. The learned counsel for the respondents submits that learned High Court had passed
the impugned judgment after considering all the pleas raised by the learned counsel for
the petitioners. The judgments relied upon by the petitioner were duly considered by the
learned High Court and it was held that the cited judgments were not applicable to the
case in hand on account of distinguishable features.

6. We have given our due consideration to the contentions of the learned counsel of the
parties and perused the record. The learned High Court had distinguished the first two
cases cited by the counsel for the petitioners PLD 2004 SC 364 and PLD 2001 Lah. 271
in para.16 of the impugned judgment. Abdul Wahab Khan's case (supra) relied upon by
the learned counsel for the petitioners is also distinguishable. Facts of the cited judgment
are that appellant who had been performing his duties as Special Magistrate WAPDA
filed a private complaint against the respondents namely Muhammad Nawaz, Ex-Director
etc. under sections 411, 381, 109, 166, 171, 166, 477-A, 201, 161, 167, P.P.C. and
section 5(2) of Prevention of Corruption Act, 1947, in the Court of learned Special Judge,
Anti-Corruption, Lahore on 1-11-1990 wherein various serious allegations of corruption,
tampering with official record, theft of judicial files with ulterior motive and receiving of
an amount of Rs.30,000 in lieu of alleged sale of judicial files were levelled against the
respondents. The learned Special Judge, after recording statements of complainant,
dismissed the complaint by order, dated 1-11-1990 without holding a preliminary inquiry
with the finding that non-scheduled offences could not be tried with scheduled offences
without adverting to section 5(7) of the Criminal Law Amendment Act, 1958. In the cited
case allegedly judicial files were sold in the year 1984. Complaint was got lodged on 1-
11-1990 without any plausible justification. In para.13 of the judgment following
observations were made which show that the cited case is not applicable to the facts of
the present case.

"It appears from the signature of complainant that all the alleged offences were
never committed simultaneously and purpose in between runs into years but no
complaint was filed at the particular moment. As to why the complainant waited for such
a long period is a mystery but it cannot be without reason which could only be explained
by the appellant alone. It is apparent from record that prima facie sufficient evidence
is lacking to show that Ghulam Yasin (respondent) had delivered two judicial files to
Raja Saeed Akhtar in lieu of Rs.30,000 as the complainant had himself admitted that
neither the said transaction was made in his presence nor the amount was paid by the
Raja Saeed in his presence.... No complaint could have been filed regarding
tampering in judicial files as it was the executive prerogative of the Courts below
as mentioned hereinabove."

7. The question of applicability of section 195(1)(c) was considered by Full Bench of the
Lahore High Court in Muhammad Shafi v. Deputy Superintendent of Police PLD 1992
Lah. 178. The relevant questions and observations are as follows:--

Muhammad Shafi v. Deputy Superintendent of Police (Malik Gul Nawaz),

Narowal and 5 others PLD 1992 Lah. 178 page 197.

"(i) Whether the provisions of section 195, subsection (1), clause (c) of the
Cr.P.C. as regards offences described in section 463 or offences punishable under
section 475 or section 476 of the P.P.C. apply to a document which is produced or given
in evidence in a suit or in any other proceedings in a Court but which had been forged
before the institution of the suit or proceedings? and

(ii) If the facts of a case attract the provisions of section 195, but no complaint has
been made by the Court concerned, is the police competent to register a case and
investigate it?"

"Now can it be said that the offence of forgery was against the administration of justice in
a case in which the offence was committed, say, ten or twenty years before the suit in
which the forged document was produced or given in evidence? The answer must
obviously be in the negative. The forger must have, before the suit, used the forged
document on a number of occasions in deceiving a number of persons. And when his
fraud and forgery came to light and the real owner or the persons defrauded were
preparing to take criminal proceedings, he hit upon the clever device of instituting a civil
Page No. 3 of 5
suit and producing the forged contended for by in the civil suit. He would, then, on the
view produced by the petitioner, be able to say: `well, I have document in the Civil Court;
you have to wait till that Court has finally decided the genuineness or otherwise of the
document, for unless that is done, that Court will not be to a Position to say whether an
offence of forgery was committed or not and to lodge a complaint under section 195.
Unfortunately civil suit usually take very long to decide and, in practical terms, it
may amount to completely defeating the ends of justice. On this view, therefore, the civil
Courts will become a place for the protection of criminals. This obviously could not have
been the intention of the law. The cause of action for proceeding against the forger arose
immediately when the offence of forgery as defined in section 463 of the P.P.C. was
committed. The commission of that offence was not only intended to deprive the real
owner of his property but had also enabled the forger to deceive others and to deprive
them of money. No proceedings were pending in any Court at that time. There was,
therefore, no question of the offence, at the date of its commission, being against the
Court or the administration of justice; nor did it, then, in any way sully the proceedings of
the Court, for none were pending."

"As the two interpretations of clause (c) of subsection (1) of section 195 of the
Cr.P.C. are so evenly balanced, the one that does not deprive the ordinary
Criminal Courts of their ordinary jurisdiction and persons of the right of redress
must be adopted. On that view of the matter also, the view that 'clause (c) of subsection
(1) of section 195 of the Cr.P.C. does not apply to cases in which the forgery was
committed before the institution of a suit or other proceedings in which the forged
document is produced or given in evidence should, in my opinion, be preferred."

"For these reasons my answer to the first question is in the negative."

"As the second question does not arise out of the facts of the case before us, we
did not call upon learned counsel to address argument. We do not, therefore, think
it necessary to answer that question."

8. It is a settled principle of law that it is the discretion of the Magistrate concerned to

pass order under section 63 of the Code of Criminal Procedure to discharge the accused
persons. However, the discretion must be exercised by the concerned Magistrate justly,
fairly and in case discharge order was passed by Magistrate mechanically without
application of his independent mind to the facts of the case, blindfolded acceptance of a
recommendation of the police in that regard, perversity of reasoning and adoption of a
procedure which offends against the letter and spirit of the law relating to discharge, then
High Court has ample jurisdiction to interfere and set aside such an order under section
561-A of Cr.P.C. See Arif Ali Khan and others v. The State and others 1993 SCMR 187
and Muhammad Sharif and others v. The State and another 1997 SCMR 304.

9. It is by now settled that order passed by the Magistrate is of administrative nature. This
Court expressed the view that some of the powers of the Magistrate are administrative,
executive or ministerial and he discharges these duties not as a Court but as a persona
designata. See Arif Ali Khan v. The State 1993 SCMR 187, Muhammad Sharif v. The
State 1997 SCMR 304; Hussain Ahmed v. Irshad Bibi 1997 SCMR 1503; Bahadur and
another v. The State and another PLD 1985 SC 62. Ratio decidendi of all the cases
mentioned above appears to be that since the Magistrate, while concurring with a police
report submitted under section 173, Cr.P.C. does not act as criminal Court subordinate to
the Court of Session and the High Court, his order cannot be set aside, revised or
modified under the provisions of sections 435, 439, Cr.P.C. but in that case as stated
above it is amenable to the inherent jurisdiction of the High Court under section 561-A,
Cr.P.C. provided the order amounts to an abuse of process of the Court. Meaning thereby
that a Magistrate can, thus, effectively grant release to a person who may have been
arrested or detained without sufficient cause. High Court is vested with the authority
under section 561-A, Cr.P.C. to exercise the said power to secure the ends of justice,
suppress the patent mischief if non-interference with the impugned order will perpetuate
injustice, in case the Magistrate concerned had passed the order without judicial
application of mind as per the law laid down by this Court in Eng. Bashir Ahmad v.
Senior Superintendent of Police, Islamabad 2002 SCMR 239.

Page No. 4 of 5
10. It is a settled law that "every judgment must be read as applicable to the particular
facts proved, or assumed to be proved, since the generality of the impressions which may
be found there are not intended to be expositions of the whole law, but governed and
qualified by the particular facts of the case in which such expressions are to be found as
law laid down by this Court in the Trustees of the Port of Karachi v. Muhammad Saleem
1994 SCMR 2213. As mentioned above, the judgments, relied upon by the learned
counsel of the petitioners are distinguishable on facts and are not applicable to the
controversy in the present case.

11. In view of what has been discussed above, we do not find any infirmity or illegality in
the impugned judgment of the Peshawar High Court. The petitions being devoid of any
force are hereby dismissed. Leave declined.

M.H. /H-12/SC Petitions dismisse

Page No. 5 of 5
2007 P Cr. L J 1710

[Shariat Court (AJ&K)]

Before Syed Hussain Mazhar Kaleem, J

NAVEED HUSSAIN----Petitioner

Versus

RASHID IQBAL----Respondent

Criminal Revision No.38 of 2006, decided on 28th April, 2007.

(a) Criminal Procedure Code (V of 1898)---

----S. 497(5)---Azad Jammu and Kashmir Offence of Zina (Enforcement of Hudood)

Ordinance, 1985, S.12---Bail, cancellation of---Revision had been directed against order
of District Court of criminal jurisdiction, whereby accused/respondent was granted bail---
Plea of petitioner was that respondent/accused hatched a conspiracy and took
complainant at the place of occurrence on the motorcycle of main accused---Impugned
order had shown that said point was not considered by the Trial Court while deciding bail
application of respondent/accused---Shariat Court, in Pacts and circumstances of the case,
remanded the matter to the Trial Court, which would hear the arguments on the
application for grant of bail afresh and deckle same in accordance with law---Bail order
already passed in favour of respondent/accused by the Court below, .however, would
remain intact.

(b) Criminal Procedure Code (V of 1898)---

----Ss. 169, 173 & 190---Investigation of case---Submission of challan---Cognizance of

offence by Magistrate---If it appeared to the officer in-charge of the police station or to a
police officer making investigation that no sufficient evidence or, reasonable ground was
available for suspicion to justify forwarding of accused to a Magistrate or Court; such
officer would, if such person was in custody release him on executing a bond to appear as
and when required before Magistrate or court empowered to take cognizance of offence
on a police report; and to try accused or send him for trial under S. 169, Cr.P.C.--After
registration of case in cognizable offences, the police, after investigation, could submit its
report under S.173, Cr.P.C. to a Magistrate/court empowered to take cognizance of the
offence, which was not binding on the Magistrate or the court---Notwithstanding the
recommendations of the Investigating Officer regarding cancellation of case, it would
decline to cancel the case and to proceed as provided under S.190, Cr.P.C. and summon
accused to face trial---Magistrate or the court had not to agree with the police report
blindly and pass the order of discharge of accused in a whimsical and arbitrary manner---
Order on such report was an administrative one---When a Magistrate would concur of
refuse to agree with such police report his order through administrative in nature, but
would have to be passed in a judicial fashion.

(c) Criminal Procedure Code (V of 1898)---

----S. 173---Azad Jammu and Kashmir Offence of Zina (Enforcement of Hudood)

Ordinance, 1985, S.12---Investigation of case---Submission of report---Police in the
present case submitted a report for cancellation of case to a Magistrate who was not
empowered to lake cognizance of offence under S.12 of Azad Jammu and Kashmir
Offence of Zina (Enforcement of Hudood) Ordinance, 1985---Section 173, Cr. P. C. had
provided that such report could only be submitted before a court or Magistrate
empowered to take cognizance of offence---Proceedings taken by the police alter
investigation were clearly against provision of law---Magistrate, in a case of disagreeing
with the report, could not proceed being incompetent to take cognizance---Proceedings
undertaken by the police and order passed by the Magistrate, in circumstances, were
illegal and deserved to be set aside.

(d) Criminal Procedure Code (V of 1898)---

Page No. 1 of 4
----S. 561-A---Inherent jurisdiction of High Court---Scope---Direction could be issued to
the concerned Incharge of investigation for action in law, while exercising jurisdiction
under S.561-A, Cr.P.C.---Relevant provisions of law provided that in order to secure the
ends of justice or to prevent abuse of the process, High Court had to interfere under its
inherent powers---Such mandatory provisions of law were overlooked---Issuance of
direction, in circumstances, were justifiable.

Raja Ghazanfar Ali for Petitioner.

Additional Advocate-General for the State.

Ch. Ali Muhammad for non-Petitioner.

ORDER

SYED HUSSAIN MAZHAR KALEEM, J.--- The above titled revision petition is
directed against the order of District Court of Criminal Jurisdiction, Mirpur, dated 14-3-
2007, whereby the accused non-petitioner was allowed bail.

2. Brief facts leading to the background of the revision petition are that a case under
section 12, Z.H.A. was registered against the non-petitioner and others at Police Station,
Chaksawari on the complaint of Naveed Hussain. It was reported that complainant a
student of 9th Class was a resident of Khanaabad. On 4-3-2007 at about 9-45 p.m. Rashid
Iqbal son of Muhammad Iqbal who was going to Mera Bani to the house of his sister
meet the complainant and asked him to accompany. While on their way back when
arrived at the place of occurrence Sarfraz son of Khadim Hussain, Shamraiz son of Allah
Ditta and Shahzad son of Qurban Hussain stopped their motorcycle. They caught the
complainant and started beating Rashid Iqbal who left the place of occurrence. Shahzad
and Shamraiz accused forcibly took the complainant in a "Kassi" took off his Shalwar
and committed sodomy while Sarfraz had been asking them not to do so. Shahzad and
Shamraiz accused asked the complainant not to disclose anyone about the incident
otherwise he would be killed.

3. After arrest, the accused non-petitioner applied for bail before District Court of
Criminal Jurisdiction, Mirpur which was allowed through the impugned order. Hence this
revision petition.

4. Learned counsel for the petitioner argued that the non-petitioner was attributed to have
committed offence under section 12, Z.H.A. According to the F.I.R. he took the victim at
the place of occurrence on the motorcycle of Shamraiz accused where he was subjected
to unnatural lust. The non-petitioner was designer of the occurrence and prima facie he
was connected with the offence punishable with death or rigorous imprisonment which
may extend to 25 years. He submitted that in view of the role played in the occurrence the
non-petitioner was not entitled to the concession of bail. The trial Court failed to
appreciate the material on record in a judicial fashion and committed a serious legal error
while passing the impugned order, therefore, by accepting the revision petition the bail
allowed to the accused non-petitioner may be cancelled.

5. On the other hand, it was argued that the accused non-petitioner was resident of Sector
F/2, Mirpur and was not known to other accused persons. He was alleged for taking the
complainant to the place of occurrence but there was no evidence indicating that it was in
his knowledge that they will be stopped by the accused persons and the complainant
would be subjected to sodomy. According to the learned counsel he was also a victim as
he was beaten by the other accused person. The learned counsel submitted that there is
nothing on record to connect the non-petitioner with the alleged offence and it cannot be
said al this stage that the trial Court has committed any error while allowing bail to him,
therefore, the revision petition may be dismissed.

6. I have heard the learned counsel for the parties and gone through the record of the
case.

7. It is worth-mentioning that after registration of the case Shahzad Ahmad, Shamrair,

and Sarfraz accused applied for pre-arrest bail before District Court of Criminal
Jurisdiction, Mirpur which was allowed to the extent of Sarfraz while the same was
Page No. 2 of 4
declined to Shahzad and Shamraiz accused through the order passed on 26-3-2007. After
their arrest they applied under section 497, Cr.P.C. but were again refused through the
order, dated 2-4-2007.

8. A perusal of the aforesaid order shows that the Court was satisfied that there was a
prima facie case existing against the accused on the basis of material collected by the
prosecution. The Court considered the statements of Sheraz son of Punnun, Mazhar son
of Abdur Rashid, Zahoor son of Haji Rehmat, Ch. Sajid Ali son of Abdul Qayyum and
Muhammad Arfat son of Muhammad Siddique. The Court also took notice of dishonest
investigation in the case with the observation that in such-like cases nobody would like to
accept the humiliation to charge the others.

9. A perusal of the police diary shows that police filed a report under section 173, Cr.P.C.
before Magistrate stating therein that allegation of sodomy against Shahzad and Shamraiz
accused was not proved as it was not supported by medical report thus, the evidence was
not sufficient to constitute the offence, therefore, the accused detained in judicial lock-up,
Mirpur may be released. The Magistrate agreeing with the report for cancellation of the
case passed an order whereby they were released from custody.

10. It would be useful to mention that after investigation if it appears to the Officer
Incharge of the police station or to a Police Officer making investigation that there is no
sufficient evidence or reasonable ground of suspicion to justify the forwarding of accused
to a Magistrate or Court such officer shall if such person is in custody release him on
executing a bond to appear as and when required before Magistrate or Court empowered
to take cognizance of the offence on a police report and to try the accused or send him for
trial under section 169, Cr.P.C.

11. A careful study of -the provisions of law dealing the aforesaid situation reveals that
after registration of a case in cognizable offences the police after investigation can submit
its report under section 173, Cr.P.C. to a Magistrate/Court empowered to take cognizance
of the offence, which is not binding on the Magistrate or the Court, therefore,
notwithstanding the recommendations of the Investigating Officer regarding cancellation
of case, it may decline to cancel the case and to proceed as provided under section 190
and summon the accused to face trial. It may also be stated that the Magistrate or the
Court has not to agree with the police report blindly and pass the order of discharge of an
accused in a whimsical and arbitrary manner. Order on such report is an administrative
one. When a Magistrate concurs with or refuses to agree with the police report submitted
to him the order though is administrative in nature but has to be passed in a judicial
fashion.

12. In the present case the police submitted a report for cancellation of the case to a
Magistrate who was not empowered to take cognizance of offence charged against the
accused i.e. 12, Z.H.A. Section 173 of the Cr.P.C. provides that such report could only be
submitted before a Court or Magistrate empowered to take cognizance of the offence,
therefore, proceedings taken by the police after investigation .were clearly against the
provisions of law. It would be important to mention that in case of disagreeing with the
report the Magistrate could not proceed for being 'incompetent to take cognizance.
Proceedings undertaken by the police and the order passed by the Magistrate were illegal
and deserved to be set aside, therefore, order is passed accordingly.

13. After examining the police diary in the backgrounds of the observations made by the
District Court of Criminal Jurisdictions, it is felt justifiable that a direction may be issued
to the concerned Incharge of the investigation for a action in law, while exercising
jurisdiction under section 561-A, Cr.P.C. The relevant provisions of law provide that in
order to secure the ends of justice or to prevent abuse of the process, this Court should
interfere under it inherent powers as mandatory provisions of law were overlooked. It
would be relevant to mention that Investigating Officer in spite of evidence on record
recommended the case for its cancellation before a Magistrate not empowered to take
cognizance of the offence.

14. So far the case of Rashid Iqbal is concerned, it was argued by the learned counsel for
the petitioner that the accused non-petitioner hatched a conspiracy and took the
complainant at the place of occurrence on the motorcycle of Shamraiz accused. A careful
consideration of the impugned order shows that the point was not considered by the trial.
Page No. 3 of 4
Court while deciding the application for bail. Therefore, keeping in view the facts and
over all circumstances of the case it is felt expedient to remand the matter to the trial.
Court which shall hear the arguments on the application for grant of bail afresh and
decide the same in accordance with law, however, till disposal of the matter the order of
bail .already passed in favour of the non-petitioner by the Court below shall remain
intact. The parties are directed to appear before, District Court of Criminal Jurisdiction,
Mirpur on 30-4-2007.

The revision petition stands disposed of as indicated above.

H.B.T/.19/Sh.C.(AJ&K) Order accordingly.

Page No. 4 of 4
2007 P L C (C.S.) 182

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and Nasir-ul-Mulk, JJ

RIAZ HUSSAIN

Versus

INSPECTOR-GENERAL OF POLICE, PUNJAB and 2 others

Civil Petition No.3071 of 2003, decided on 14th November, 2005.

(On appeal from the judgment of the Punjab Service Tribunal, Rawalpindi, dated 27-9-
2003 passed in Appeal No.1081 of 2003).

(a) Criminal trial---

----Investigation, defect in---Effect---Such defect might not be a valid ground for

discharged of an accused, but insufficiency in evidence would definitely be a strong
ground to discharge him.

(b) Punjab Police (Efficiency and Discipline) Rules, 1975---

----Rr. 3 & 4(1)(b)(v)---Dismissal from service---Misconduct, charge of---Omission of

civil servant as Investigating Officer of a criminal case to obtain signatures of witnesses
on recovery memo. of stolen vehicle---Magistrate discharged accused for want of
incriminating evidence on record to connect him with commission of offence of theft---
Initiation of disciplinary proceedings against civil servant (1.0.) on charge of negligence
for such omission---Penalty of dismissal imposed by departmental authority was upheld
by Service Tribunal---Validity---Magistrate had discharged accused for want of evidence
and not only for defect in recovery memo. or in investigation---Such omission might or
might not be a factor to damage prosecution case, but in absence of any evidence that
such omission was intentional, same would be treated as bona fide mistake, which might
not constitute an act of misconduct---Supreme Court accepted appeal, set aside impugned
judgment and reinstated civil servant in service without back benefits treating the
intervening period as leave without pay.

Roy Muhammad Nawaz Khan Kharal, Advocate Supreme Court for Petitioner.

Syed Sajjad Hussain Shah, A.A.-G. for Respondents.

Date of hearing: 14th November, 2005.

JUDGMENT

MUHAMMAD NAWAZ ABBASI, J.--- This petition has been directed against the
judgment, dated 27-9-2003 passed by the Punjab Service Tribunal, whereby appeal of the
petitioner against the penalty of' dismissal from service imposed upon him by the Senior
Superintendent of Police, Rawalpindi, was dismissed and order of the Departmental
Authority was upheld.

2. The petitioner was proceeded against for the charge as under:--

"S.P./City has reported that you remained in touch with the inquiry of' case F.I.R.
No.103, dated 4-4-2001 under section 381-A, P.P.C. Police Station New Town for
long time. You are also sent to Gilgit from where the stolen car in question was
recovered and brought to Police Station New Town. You wrote the recovery
memo. of the witnesses and did not get this recovery memo. signed by the
witnesses. Resultantly, the accused were discharged on the plea that recovery
memo. was not signed by the witnesses which shows your inefficiency and gross
misconduct."

Page No. 1 of 2
3. The petitioner in his capacity as Investigating Officer of a case registered under section
381-A, P.P.C. at the Police Station, New Town, Rawalpindi recovered the stolen vehicle
from Gilgit. The accused in the said case on arrest was produced before a Magistrate for
his physical remand and the Magistrate vide order, dated 23-5-2001, instead of giving
physical remand of the accused to the police discharged him on the ground that there was
no incriminating evidence on record to connect him with the commission of offence and
this order of the Magistrate having been not challenged before the next forum attained
finality. Subsequently the departmental proceedings were initiated against the petitioner
for the charge of negligence on the ground that he having not obtained the signature of
the witnesses on the recovery memo. of the stolen vehicle, destroyed the evidence of
recovery as a result of which the accused was discharged by the Magistrate. The order
passed by the Magistrate is read as under:--

"Present accused is neither named in the F.I.R. nor anybody has seen him while
taking away the car nor the car was recovered from the accused, moreover, no
incriminating evidence is on record against the accused, therefore, he is
discharged from the case. He be released forthwith if not required in any other
case. The recovery memo. is not signed by the witnesses."

4. The perusal of the order of the Magistrate would show that the accused was discharged
for the reason that no incriminating evidence whatsoever was brought on record to
connect him with the commission of offence and not only for the reason that recovery
memo, was not signed by the witness. It may be seen that the petitioner who recovered
the stolen vehicle was also a competent witness and without examining the recovery
witnesses, it would be difficult to ascertain the question of admissibility of their evidence.
The learned Assistant Advocate-General, Punjab, without satisfying us that the defect in
the recovery memo. was the sole basis of the order of Magistrate, contended that
notwithstanding the fact that the order was passed by the Magistrate for different
consideration, the charge of negligence against the petitioner of not obtaining the
signature of witnesses on the recovery memo. stood established beyond doubt. It may be
seen that accused was acquitted by the Magistrate on the ground that there was no
evidence to connect him with the crime, therefore, it would not be fair to shift the burden
of the weakness of the prosecution case to the petitioner and held him responsible for the
discharge of accused. The defect in the investigation may not be a valid ground for
discharge of an accused but insufficiency of evidence is definitely a strong ground to,
discharge a person from criminal charge and it is clear from the order of Magistrate that
accused was discharged for want of evidence and not only for the defect in the recovery
memo. or in the investigation. The omission of the petitioner as an Investigating Officer
of the case in not obtaining the signature of the witnesses on the recovery memo. may or
may not be a factor to damage the prosecution case but in absence of any evidence that
the omission of not obtaining the signatures on the recovery memo. was intentional, it
would be treated as a bona fide mistake which may not constitute an act of misconduct.

5. In the light of foregoing reasons, we convert this petition into an appeal and set aside
the judgment of the Tribunal. The appellant shall be reinstated in service but he shall not
be entitled to the back benefits, and the intervening period shall he treated as leave
without pay. This appeal is allowed in the above terms with no order as to costs.
S.A.K./R-5/SC Appeal accepted.

Page No. 2 of 2
2007 Y L R 1146
[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD ASHRAF and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.8525-B of 2005, decided on 29th November, 2005.

Criminal Procedure Code (V of 1898)---

----S. 498---Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979), S.7---Bail

before arrest, grant of---Accused was an old man, while co-accused was a lady---Another
co-accused who was son-in-law of complainant and son of one of the accused was
allowed bail after arrest---Accused were found innocent during course of two
investigations, discharge report was prepared and even their case was recommended for
cancellation---Sentence provided for alleged offence was eight stripes---Accused was
presumed to be innocent in the eye of law and it was bounden duty of the prosecution to
prove its case against accused to the hilt---Offence against accused not falling within the
prohibitory clause of S.497(2), Cr.P.C., coupled with the fact that no sentence of
imprisonment was provided under said provisions of law and sentence of stripes could
not be inflicted in anticipation, interim pre-arrest bail already allowed to accused, was
confirmed.

Shahid Hameed Dar for Petitioners.

Chaudhry Muhammad Hanif Khatana A.A.-G. assisted by Muhammad Tufail for the
State with Shaukat Ali A.S.-I. with record.

Syed Karamat Ali Naqvi for the Complainant.

ORDER

KHAWAJA MUHAMMAD SHARIF, J.---Learned counsel for the petitioners, in

support of this bail before arrest petition, submits that a co-accused, namely, Rashid,
who was son-in-law of the complainant and son of the petitioner No.1 Ashraf was
allowed bail after arrest by the learned Additional Sessions Judge Mr. Ghaffar Jalil
vide order dated 6-12-2004 °in terms of the affidavit tendered by the complainant;
that an application for cancellation of above bail of Rashid was moved which was
dismissed by the learned Additional Sessions Judge Narowal Mr. Mansab Ali Joyia vide
order dated 17-11-2005, that the petitioners have falsely been implicated in this case, that
in two earlier investigations petitioners were found to be innocent; that the investigation
ordered by DPO was illegal as he has no authority to do so as the same is violative to the
mandatory provision of Article 18(6) of the Police Order, 2002.

2. On the other hand, learned counsel for the complainant submits that the petitioners are
named in the F I R . the offence is heinous one considerations for the grant of bail before
arrest and bail after arrest are altogether different and it is not a case of bail before arrest.
In addition to the above submissions, the learned Additional Advocate-General Punjab
submits that till the case is proved by the prosecution against the petitioners, it is a case of
further inquiry.

3. I have heard counsel for the parties, have given consideration to the submissions made
at the bar and have also gone through the record. Both the petitioners are present in Court
in person. Petitioner No.1 Muhammad Ashraf appears to be an old man while petitioner
No.2 Mst. Uzma Bibi is a lady. A co-accused of the petitioner, namely, Rashid, who was
son-in-law of the complainant and son of the petitioner No.1 Ashraf, was allowed bail
after arrest by the learned Additional Sessions Judge, Narowal Mr. Ghaffar Jalil vide
order dated 6-12-2004 in terms of the affidavit tendered by the complainant. An
application for cancellation of above bail of Rashid was moved which was dismissed by

Page No. 1 of 2
the learned Additional Sessions Judge, Narowal Mr. Mansab Ali Joyia vide order dated
17-11-2005. Petitioners were found innocent during the course of two investigations
discharge report was prepared and even the case was recommended for cancellation. The
sentence provided for the alleged offence is eighty stripes. It is cardinal principle of the
criminal justice that a person is presumed to be innocent in the eye of law and it is
bounden duty of the prosecution to prove its case against the accused to the hilt. It is
imperative to quote section 7 of the Ordinance which stipulates as under:-

"7. Punishment of Qazf liable to Hadd.---(1) Whoever commits Qazf liable to

Hadd shall be punished with whipping numbering eighty stripes.

(2) -----

(3) A punishment awarded under subsection (1) shall not be executed until it has
been confirmed by the Court to which an appeal from the Court awarding the
punishment lies, and, until the punishment is confirmed and executed, the convict
shall, subject to the provisions of the Code of Criminal Procedure, 1898 (Act V of
1898) relating to the grant of bail or suspension of sentence, be dealt within the
same manner as if sentenced to simple imprisonment."

4. In the afore-referred circumstances, in view of the fact that-the offence does not fall
within the prohibitory clause of section 497(1), Cr.P.C. coupled with the fact that no
sentence of imprisonment is provided under the said provision of law and sentence of
stripes cannot be inflicted in anticipation, the interim pre-arrest bail already allowed to
the petitioners vide this Court's order dated 22-11-2005 is hereby confirmed.
H.B.T./M-697/L Bail confirmed.

Page No. 2 of 2
2007 Y L R 2946

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD ARIF---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION SADAR, SHEIKHUPURA

and 5 others---Respondent

Writ Petition No.2772 of 2007, decided on 6th July, 2007.

Constitution of Pakistan (1973)---

----Art. 199---Criminal Procedure Code (V of 1898), S.561-A---Penal Code (XLV of

1860), Ss.302, 324, 148, 149 & 109---Constitutional petition---Maintainability---Order
discharging accused persons from F.I.R. was sought to be set aside---One accused was
neither attributed any injury on the person of .deceased nor on the injured prosecution
witnesses---Another accused was attributed an injury on, the head of prosecution
witness with a firearm, but no offence had been mentioned for said injury nor the X-
Ray report had been taken by the police---Both the said accused persons had produced
their witnesses during the course. of investigation in support of their plea of alibi which
was verified by the two Investigating Officers, whereby .they were declared innocent---
Discharge report was prepared and said accused were accordingly discharged by the
Judicial Magistrate vide impugned order which was a speaking and legal order---
Reasoning had been given by the Magistrate qua discharge of the accused persons---
Complainant had got remedy to file a private complaint against those accused who had
either been declared innocent or discharged---Constitutional petition having no merits,
was dismissed, in circumstances.

1994 PCr.LJ 842, 1991 MLD 523; 1997 SCMR 1503; 1996 PCr.LJ 1187; 2000 PCr.LJ 43
and Awal Khan v. The Superintendent of Police Attock and 13 others 1989 PCr.LJ 909
rel.

Ch. Imtiaz Hussain Bhatti for Petitioner.

Ch. Muhammad Hanif Khatana, Addl. A.-G. Punjab with Muhammad Yar, S.-I.

Rana Asif Mehmood for Respondents.

ORDER

KHAWAJA MUHAMMAD SHARIF, J.---This Constitutional petition is directed

against the impugned order dated 12-3-2007 passed by the learned Judicial Magistrate
Sheikhupura, whereby, respondent No.3 (Shahbaz son of Muhammad Ashiq) and
respondent No.4 (Tariq Mehmood son of Muhammad Ashiq), were discharged from the
case vide F.I.R. No.192/07 dated 22-2-2007 under sections 302/324/148/149/109 P.P.C.,

Police Station Saddar Sheikhupura registered, on the statement of petitioner/complainant

Muhammad Arif.

2. Learned counsel for the petitioner, in support- of this petition, contends that specific
injury is attributed to respondent No.4 (Tariq Mehmood son of Muhammad Ashiq) on the
person of Akhtar injured P.W. on his head while respondent No.3 (Shahbaz son of
Muhammad Ashiq) made indiscriminate firing at the spot; that the police with mala fide
intention had declared both the respondents. i.e. respondent No.3 (Shahbaz' son of
Muhammad Ashiq) and respondent No:4 (Tariq Mehmood son of Muhammad Ashiq)
innocent along with one Maqsood co-accused, prepared a discharge report, submitted
before the learned .Judicial Magistrate, who, vide impugned order dated 12-3-2007,.
discharged respondents Nos.3 and 4 while did not agree qua Maqsood Ahmad who was
attributed injury on the person of the deceased; that the learned Magistrate had no power
Page No. 1 of 3
to discharge both the respondents as they committed a heinous offence of double murder
including injuries to the injured-P.Ws. In support of the above submissions, learned
counsel for the petitioner has relied on the precedent case law reported in 1994 PCr.LJ
842, 1991 MLD 523, 1997 SCMR 1603,1996 PCr.LJ 1187 and 2000 PCr.LJ 43.

2-A. On the other hand, learned counsel for the respondent i.e. respondent No.3 (Shahbaz
son of Muhammad Ashiq) and respondent No.4 (Tariq Mehmood son of Muhammad
Ashiq) submits that during the course of investigation, many persons had appeared before
the police in support of plea of innocence of the present respondents and the police, after
having come to the conclusion, that they were not present at the spot, verified their said
plea of alibi/innocence, declared them innocent, produced them along with co-accused
Maqsood before the learned Judicial Magistrate and also submitted discharge report and
that it was through a speaking order that both the respondents i.e. respondent No.3
(Shahbaz son of Muhammad Ashiq) and respondent No.4 (Tariq Mehmood son of
Muhammad Ashiq) were discharged from the case while the learned Magistrate did not
agree qua co-accused Maqsood. He further submits that qua the injury attributed to
respondent No.4 (Tariq Mehmood son of Muhammad Ashiq) on the person of Akhtar P.
W. no X-ray report has so far been received. Contended that when the impugned order of
discharge was passed, till then, challan against the respondents and 'their co-accused had
not yet been submitted, so, the learned Judicial Magistrate was legally justified to
discharge the respondents from the case in question through the impugned order which is
a well reasoned and speaking order.

3. The learned Additional Advocate General Punjab Ch. Muhammad Hanif Khatana <has
supported the submissions made by .the learned counsel for the respondents. He has
relied on Awal Khan v. The Superintendent of Police Attock and 13 others (1989 PCr.LJ
909) to contend that the learned Magistrate was competent to discharge the respondents
and now the petitioner/complainant Muhammad Arif has an alternate remedy to file a
private complaint.

4. I have heard learned counsel for the respective parties, have given anxious
consideration to their submissions coupled with perusal of precedent case law cited at the
bar by the learned counsel for the petitioner and the learned Additional Advocate General
Punjab Ch. Muhammad Hanif Khatana. To reach at a just decision of the case, it is
imperative to give relevant facts of the case. The case in hand was registered on 22-2-
2007 on the statement of petitioner/complainant Muhammad Arif in which two persons,
namely, Mubarak Ali and Maqsood Akhtar had lost their lives while Muhammad Akhtar
son of Waris, Tariq Mehmood and Rashad Mehmood received injuries. In all nine
accused persons were named and two were mentioned as unknown. Till today, seven
accused were arrested, namely, Khalil Javed, Shahadat, Shaukat, Maqsood, Malik, Tariq
and Shahbaz amongst whom Tariq and Shahbaz respondents Nos.3 and 4 were discharged
by the learned Judicial Magistrate vide the impugned order while he did not agree qua co-
accused Maqsood while three accused persons, namely, Sajid, Javed and Ashiq were
declared innocent and were not arrested by the police during the course of investigation.
As far as passage of impugned order of discharge passed by the learned Judicial
Magistrate is concerned, reasoning have been given qua discharge of respondent No.3
(Shahbaz son of Muhammad. Ashiq) and respondent No.4 (Tariq Mehmood son of
Muhammad Ashiq) while he did not agree with the opinion of the police regarding co-
accused Maqsood who had caused injury on the person of the deceased and in my view
he has rightly refused to 'discharge with the discharge report qua the said accused
Maqsood. Respondent No.3 (Shahbaz son of Muhammad Ashiq) is neither attributed any
injury on the person of the deceased nor the injured-P.Ws. As tar as case of respondent
No.4 (Tariq Mehmood son of Muhammad Ashiq) is concerned, he was attributed an
injury on the head of Akhtar P.W. with a firearm but; surprisingly, till today no offence,
has been mentioned for the said injury nor the X-Ray report has been taken by the police
so far. Both the respondents have produced. their witnesses during the course of
investigation in support of their .plea of alibi which was verified by the two Investigating
Officers, whereafter, they were declared innocent, discharge report was prepared,
submitted and they were accordingly discharged by the learned Judicial Magistrate vide
impugned order which is speaking and legal order. I have gone through the precedent
case law cited by the learned Additional Advocate General Punjab Ch. Muhammad Hanif
Khatana reported in, Awal Khan v. The Superintendent of Police Attock and 13 others
(1989 PCr.LJ 909), which has rightly been relied upon in which it has been held that the
Page No. 2 of 3
learned Magistrate is competent to discharge the accused persons involved in an offence
which is exclusively triable by a learned Court of Session while the judgments cited by
the learned counsel for the petitioner are distinguishable and are not applicable in the
facts and circumstances of this case. Moreover, the petitioner/complainant Muhammad.
Arif has got alternate remedy to file a private complaint against those accused persons
who have either been declared innocent or discharged. The nutshell of the above
discussion is that this petition has no merit which is accordingly dismissed.
H.B.T./M-404/L Petition dismissed.

Page No. 3 of 3
2006 S C M R 827

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and Nasir-ul-Mulk, JJ

RIAZ HUSSAIN----Petitioner

Versus

INSPECTOR-GENERAL OF POLICE, PUNJAB and 2 others----Respondents

Civil Petition No.3071 of 2003, decided on 14th November, 2005.

(On appeal from the judgment of the Punjab Service Tribunal, Rawalpindi, dated 27-9-
2003 passed in Appeal No.1081 of 2003).

(a) Criminal trial---

----Investigation, defect in---Effect---Such defect might not be a valid ground for

discharge of an accused, but insufficiency in evidence would definitely be a strong
ground to discharge him.

(b) Punjab Police (Efficiency and Discipline) Rules, 1975---

----Rr. 3 & 4(1)(b)(v)---Dismissal from service---Misconduct, charge of---Omission of

civil servant as Investigating Officer of a criminal case to obtain signatures of witnesses
on recovery memo. of stolen vehicle---Magistrate discharge accused for want of
incriminating evidence on record to connect him with commission of offence of theft---
Initiation of disciplinary proceedings against civil servant (1.0.) on charge of negligence
for such omission---Penalty of dismissal imposed by departmental authority was upheld
by Service Tribunal---Validity---Magistrate had discharged accused for want of evidence
and not only for defect in recovery memo. or in investigation---Such omission might or
might not be a factor to damage prosecution case, but in absence of any evidence that
such omission was intentional, same would be treated as bona fide mistake, which might
not constitute an act of misconduct---Supreme Court accepted appeal, set aside impugned
judgment and reinstated civil servant in service without back benefits treating the
intervening period as leave without pay.

Roy Muhammad Nawaz Khan Kharal, Advocate Supreme Court for Petitioner.

Syed Sajjad Hussain Shah, A.A.-G. for Respondents.

Date of hearing: 14th November, 2005.

JUDGMENT

MUHAMMAD NAWAZ ABBASI, J.--- This petition has been directed against the
judgment, dated 27-9-2003 passed by the Punjab Service Tribunal, whereby appeal of the
petitioner against the penalty of dismissal from service imposed upon him by the Senior
Superintendent of Police, Rawalpindi, was dismissed and order of the Departmental
Authority was upheld.

2. The petitioner was proceeded against for the charge as under:

"S.P./City has reported that you remained in touch with the inquiry of case F.I.R. No.103,
dated 4-4-2001 under section 381-A, P.P.C. Police Station New Town for long time.

You are also sent to Gilgit from where the stolen car in question was recovered and
brought to Police Station New Town. You wrote the recovery memo. of the witnesses and
did not get this recovery memo. signed by the witnesses. Resultantly, the accused were
discharged on the plea that recovery memo. was not signed by the witnesses which shows
your inefficiency and gross misconduct."

Page No. 1 of 2
3. The petitioner in his capacity as Investigating Officer of a case registered under section
381-A, P.P.C. at the Police Station, New Town, Rawalpindi recovered the stolen vehicle
from Gilgit. The accused in the said case on arrest was produced before a Magistrate for
his physical remand and the Magistrate vide order, dated 23-5-2001, instead of giving
physical remand of the accused to the police discharged him on the ground that there was
no incriminating evidence on record to connect him with the commission of offence and
this order of, the Magistrate having been not challenged before the next forum attained
finality. Subsequently the departmental proceedings were initiated against the petitioner
for the charge of negligence on the ground that he having not obtained the signature of
the witnesses on the recovery memo. of the stolen vehicle, destroyed the evidence of
recovery as a result of which the accused was discharged by the Magistrate. The order
passed by the Magistrate is read as under:--

"Present accused is neither named in the F.I.R. nor anybody has seen him while taking
away the car nor the car was recovered from the accused, moreover, no incriminating
evidence is on record against the accused, therefore, he is discharged from the case. He
be released forthwith if not required in any other case. The recovery memo. is not signed
by the witnesses."

4. The perusal of the order of the Magistrate would show that the accused was discharged
for the reason that no incriminating evidence whatsoever was brought on record to
connect him with the commission of offence and not only for the reason that recovery
memo. was not signed by the witness. It may be seen that the petitioner who recovered
the stolen vehicle was also a competent witness and without examining the recovery
witnesses, it would be difficult to ascertain the question of admissibility of their evidence.
The learned Assistant Advocate-General, Punjab, without satisfying us that the defect in
the recovery memo. was the sole basis of the order of Magistrate, contended that
notwithstanding the fact that the order was passed by the Magistrate for different
consideration, the charge of negligence against the petitioner of not obtaining the
signature of witnesses on the recovery memo. stood established beyond doubt. It may be
seen that accused was acquitted by the Magistrate on the ground that there was no
evidence to connect him with the crime, therefore, it would not be fair to shift the burden
of the weakness of the prosecution case to the petitioner and held him responsible for the
discharge of accused. The defect in the investigation may not be a valid ground for
discharge of an accused but insufficiency of evidence is definitely a strong ground to
discharge a person from criminal charge and it is clear from the order of Magistrate that
accused was discharged for want of evidence and not only for the defect in the recovery
memo. or in the investigation. The omission of the petitioner as an Investigating Officer
of the case in not obtaining the signature of the B witnesses on the recovery memo. may
or may not be a factor to damage the prosecution case but in absence of any evidence that
the omission of not obtaining the signatures on the recovery memo. was intentional, it
would be treated as a bona fide mistake which may not constitute an act of misconduct.

5. In the light of foregoing reasons, we convert this petition into an appeal and set aside
the judgment of the Tribunal. The appellant shall be c reinstated in service but he shall
not be entitled to the back benefits, and the intervening period shall be treated as leave
without pay. This appeal is allowed in the above terms with no order as to costs.

S.A.K./R-5/SC Appeal accepted.

Page No. 2 of 2
2008 Y L R 949

[Lahore]

Before Hasnat Ahmad Khan, J

GULZAR AHMED and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1963-B of 2007, decided on 11th October, 2007.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Further inquiry---

Incident was a night time occurrence which was allegedly witnessed by the complainant
and other eye-witnesses in the light of moon and a torch---Both deceased were murdered
after having been found together---Possibility in the background of the motive of
occurrence could not be ruled out that both deceased were murdered under sudden and
grave provocation---Both accused were found innocent in all four successive
investigations---Report for discharge of both accused was submitted by the police, but
same was not acceded to by the Magistrate---Prima facie sufficient material was available
in the shape of affidavit of witnesses who supported plea of alibi of the accused---
Defence plea of co-accused was that he was very much available in his house where
according to defence, deceased before occurrence had administered some intoxicating
material due to which co-accused was enjoying deep and sound sleep---Said plea did not
appear to be so sound as to make same basis for grant of bail, especially when place of
occurrence was situated quite near to said house--- Case of accused, had thus been made
out for further inquiry into his guilt---Start of trial would not cause any hindrance for
granting bail to accused---Accused, in circumstances was granted bail---Bail application
to the extent of co-accused however was dismissed and he was refused bail.

Muhammad Riaz v. The State 2002 SCMR 184 Ibrahim v. Hayat Gul and others 1985
SCMR 382; Muhammad Sadiq v. Sadiq and Others PLD 1985 SC 182; Ghulam Rasul
v. The State and 4 others 1982 SCMR 440; Muhammad Shabbir v. The State 1997
PCr.LJ 1570; Nazar Hussain Shah and another v. The State 2007 PCr.LJ 1274;
Muhammad Ismaeel v. Muhammad Rafiq and another PLD 1989 SC 585; Muhammad
Umar v. The State and another PLD 2004 SC 477; Munir v. State 2002 MLD 712 and
Muhammad Saleem v. The State PLD 1989 Lah. 233 rel.

Saghir Ahmad Bhatti and Sh. Muhammad Usman for Petitioners.

Sardar Muhammad Sarfraz Dogar, for the Complainant.

Nadir Manzoor Duggal, Deputy Prosecutor General with Mubashar Ali, S-I. for the
State.

ORDER

HASNAT AHMAD KHAN, J.---Petitioners seek post-arrest bail in case F.I.R.

No.404/2006, dated 14-9-2006 registered at police Station, Saddar Dunyapur, District
Lodhran in respect of offence under section 302/34, P.P.C.

2. Shorn of unnecessary details the prosecution story as unfurled in the F.I.R. lodged
at the instance of Mst. Hajan Puran is that on 14-9-2006 his son Abdullah went for
easing himself at about 12-midnight but he did not return back. At about 1.00 a. m the
complainant along with Abdul Hameed, Muhammad Wakil and Sardar Ali, reportedly,
set off in search of Abdullah. After reaching near the Dera of Abdul Jabbar Dogar they
allegedly heard the commotion and saw in the light of lamp of heaven and that of
torch Gulzar, Nisar and Muhammad Ahmad accused armed with hatchets having
caught hold of Abdullah and Mst. Zenab. All the accused allegedly inflicted blow
after blow of hatchets to Abdullah which landed on different parts of his person. He
reportedly fell down but even then the accused inflicted hatchet blows to him.
Page No. 1 of 3
Thereafter all the accused injured Zenab Bibi after inflicting hatchet blows on
different parts of her body. Whereafter all the accused showed a good pair of heels.
Abdullah and Zenab Bibi kicked the bucket at the spot. The apple of discord was
stated to be illicit relations between Abdullah and Zenab Bibi deceased. Hence the
F.I.R.

3. It is second petition for post-arrest bail first was dismissed as withdrawn by this
Court vide order dated 6-6-2007 passed in Crl. Misc. No 1128-B/2007. As the
previous application was not decided on merits, therefore there is no impediment to
decide the application in hand on merits. Reliance in this regard is placed on the case
of Muhammad Riaz v. The State (2002 SCMR 184).

4. In support of this petition learned counsel for the petitioners has contended that in
fact it was an occurrence of blind murders; that eye-witnesses had not seen the
occurrence, that in fact only Nisar accused, who is brother of Zenab Bibi had
murdered both the deceased after finding them while performing indecent acts; that in
the four, successive investigations conducted by Ali Sher, S.-I. S.H.O. Police Station
Duniyapur, Malik Tahir Majeed Inspector/S.H.O., Malik Nazar Abbas, D.S.P./S.D.O.,
Lodhran and Shaukat Murtaza Malhi D.S.P. (Investigation) Lodhran, both the
petitioners were found innocent and at one stage report for their discharge was sent by
the police which however was not acceded to; that no recovery was effected from the
accused that as a case of further inquiry has been made out, therefore, the start of trial
would not debar the petitioners from getting the bail. While concluding his arguments
learned counsel has placed reliance upon the cases of Ibrahim v. Hayat Gul and others
(1985 SCMR 382) Muhammad Sadiq v. Sadiq and others (PLD 1985 SC 182),
Ghulam Rasul v. The State and 4 others (1982 SCMR 440), Muhammad Shabbir v.
The State (1997 PCr.LJ 1570) and Nazar Hussain 'Shah and another v. The State
(2007 PCr.LJ 1274).

5. Conversely learned Deputy Prosecutor General assisted by the learned counsel for
the complainant has strenuously opposed the bail application on the ground that the
petitioners were named in the F.I.R. and there is sufficient material on the record to
connect the petitioners with the alleged crime.

6. After hearing the arguments of both the sides I have noticed certain peculiar facts
of the case, viz. it was a night time occurrence which was allegedly witnessed by the
complainant and other eye-witnesses in the light of moon and a torch. It is admitted
fact that Abdullah and Mst. Zenab Bibi were murdered after having been found
together. In the background of the motive of occurrence as stated by the complainant
possibility cannot be ruled out that both of them were murdered under sudden and
grave provocation. It is also an admitted position that in all four successive
investigations both the petitioners were found innocent and it was opined by the
Investigating Officer that murder was committed only by Nisar co-accused real
brother of Mst. Zeenat Bibi deceased. A report for discharge of both the accused was
submitted by the police but the same was not acceded to by the learned Magistrate. It
is true that ipsi dixit of the police is not binding on the Courts but for the purposes of
bail the same can be considered by the Courts. For accepting or rejecting the opinion
of the police a litmus test as provided by the superior Courts is to see as to whether
the same is based upon sound material. For making tentative assessment of the facts
of the case for the decision of this bail application, I have examined the case from two
angles. First being as to whether numerous injuries could be caused to both the
deceased by one reason and the second is whether there was sound material before the
police to hold both the petitioners innocent. As far as first point is concerned subject
to final decision of the case after conclusion of the trial I am of the tentative opinion
that the plea that sharp-edged injuries were, inflicted by Nisar co-accused single
handedly prima facie, appears to be economical with truth. Possibility cannot be ruled
out that assailants in this case were more than one person. As far as material for
holding both the petitioners is concerned, I have concluded that as far as Muhammad
Ahmad petitioner is concerned, prima facie, there was sufficient material in the shape
of affidavits of witnesses who supported his plea of alibi. As far as Gulzar petitioner
is concerned, the defence plea is that he was very much available in his house where
according to defence Zenab Bibi had administered some intoxicating material due to
which he (Gulzar) was enjoying deep and sound sleep, does not appear to be so sound
Page No. 2 of 3
which can be made basis for grant of bail at 'this stage, especially when -place of
occurrence is situated quite near to the said house.

7. The net result of all the discussion made above is that as far as Muhammad Ahmad
petitioner is concerned, according to me a case of further inquiry into his guilt has
been made out, therefore, start of trial would not cause any hindrance for granting bail
to him. After coming to the conclusion that his case requires further inquiry he has
become entitled to bail as a matter of right, therefore, he cannot be deprived of the
benefit of said finding on the basis of rule of propriety which demands that after start
of trial bail should not normally be allowed to the accused Reliance in this regard is
placed upon the case of Muhammad Ismaeel v. Muhammad Rafiq and another (PLD
1989 SC 585), Muhammad Umar v. The State and another (PLD 2004 SC 477), Munir
v. State (2002 MLD 712) and Muhammad Saleem v. The State (PLD 1989 Lah 233).
Besides he is suffering pre-trial punishment since 7-10-2006. The case-law cited by
the learned counsel for the petitioner is fully attracted to the facts and circumstances
of the case, as far as case of Muhammad Ahmad petitioner is concerned.

8. For what has been discussed above present petition to the extent of Gulzar
petitioner, is hereby dismissed, while the same is allowed to the extent of Muhammad
Ahmad petitioner and concession of post-arrest bail is granted to him subject to his
furnishing bail bonds in the sum of Rs.2,00,000 (Rupees two lac) with two sureties
each in the like amount to the satisfaction of the learned trial Court.

H.B.T./G-104/L Order accordingly.

Page No. 3 of 3
2005 Y L R 1037

[Lahore]

Before Sardar Muhammad Aslam, J

MUHAMMAD AKRAM---Petitioner

versus

ADDITIONAL SESSIONS JUDGE, RAWALPINDI and 6 others---Respondents

Writ Petition No.1129 of 2000, heard on 1st July, 2004.

(a) Criminal Procedure Code (V of 1898)---

----S.249-A---Power of Magistrate to acquit accused at any stage---No power to dis-

charge---Section 249-A, Cr.P.C. empowers the Magistrate to acquit the accused at any
stage of the proceedings---Power to discharge the accused is not available under S.249-A,
Cr.P.C.

(b) Criminal trial---

----Discharge---Discharge is different from acquittal---Discharge can be on account of

absence of the complainant and not on the merits of the case---Accused discharged on
police report under S.173, Cr.P.C. or discharged on having been declared innocent by the
police, are some of the instances.

(c) Criminal Procedure Code (V of 1898)---

----Ss.249-A, 417(2-A) & 439(5)---Penal Code (XLV of 1860), S.427---Constitution of

Pakistan (1973), Art.199---Constitutional petition---Sessions Court through the impugned
judgment had dismissed the revision petition filed by the complainant against the
acquittal of accused by the trial Court under S.249-A, Cr.P.C. on the ground of being not
competent---Acquittal recorded by the competent Court on recording of evidence or
without recording evidence would not determine the remedy of revision or appeal, the
same being governed by the statutory provisions of law---Complainant aggrieved by the
order of acquittal of accused by the Trial Court had the right to file an appeal under
S.417(2-A), Cr.P.C. and in the presence of remedy by way of appeal, the revision petition
filed by him was not competent under S.439(5), Cr.P.C.---The same had been rightly
dismissed by the Sessions Court---Constitutional petition was dismissed accordingly---
[ Muhammad Yasin v. Muhammad Hanif and others 1997 PCr.LJ 1626 dissented from].

Muhammad Yasin v. Muhammad Hanif and others 1997 PCr.LJ 1626 dissented
from.

Liaqat Ali v. Muhammad Saleem Shahzad and others 2000 YLR 629; Faqir
Muhammad v. State and others 2001 PCr.LJ 444; Pervez Muzammil Khan and 5 others v.
Muhammad Anis and another 2002 PCr.LJ. 2072 and Ghulam Muhammad v. Additional
Sessions Judge and 3 others 1998 MLD 1605 ref.

Sheikh Muhammad Suleman for Petitioner.

Ghulam Asghar Khokhar for Respondents Nos.3 to 6.

Syed Sajjad Hussain Shah, Assistant Advocate-General for the State.

Date of hearing: 1st July, 2004.

JUDGMENT

The petitioner through this Constitutional petition calls in question the orders dated
6-4-2000 and 5-10-1999 passed by the respondents Nos.1 and 2 respectively on an
application filed by respondents Nos.3 to 6 under section 249-A, Cr.P.C. before the
learned trial Court, who vide its order dated 5-10-1999 accepted the same and discharged

Page No. 1 of 3
the accused/respondents from the charge levelled against them in a Qalandra under
section 427, P.P.C. recorded at Police Station, City, Rawalpindi on 5-2-1999. The
petitioner challenged the said order before the learned Sessions Judge, Rawalpindi by
way of revision petition which came up for hearing before a learned Additional Sessions
Judge, Rawalpinid, who vide his order dated 6-4-2000 dismissed the revision on the
ground that his remedy lay in an appeal under section 417, Cr.P.C.

2. The learned counsel for the petitioner while placing reliance on Muhammad Yasin v.
Muhammad Hanif and others 1997 PCr.LJ 1626 argued that the revision was
maintainable in law and the findings of the learned revisional Court is based on incorrect
interpretation of section 249-A, Cr.P.C.

3. On the other hand, Syed Sajjad Hussain Shah, the learned Assistant Advocate
General assisted by Mr. Ghulam Asghar Khokhar, Advocate for the respondents Nos.3 to
6 vehemently controverted the arguments raised on petitioner’s behalf. It was argued that
the revision against the order passed under section 249-A, Cr.P.C. is not competent in
law. Adds that the remedy lay in an appeal provided under section 417 of the Cr.P.C.
Reliance has been placed on Liaqat Ali v. Muhammad Saleem Shahzad and others 2000
YLR 629, wherein the learned Magistrate during the proceedings of the case acquitted the
accused by invoking provisions of section 249-A, Cr.P.C., which order was challenged in
revision and was allowed by the learned Additional Sessions Judge. The learned Single
Judge in Chamber of this Court, as he then was, set aside the revisional order on the
ground that section 417(2-A) of the Cr.P.C. provides an appeal against the order of
acquittal. Similar view was taken in the case of Faqir Muhammad v. State and others
2001 PCr.LJ 444. Support was sought from the provisions of section 439(5),
Cr.P.C. which provide that where under this Code an appeal lies and no appeal is brought,
no proceedings by way of revision shall be entertained at the instance of the parties who
could have appealed. In Pervez Muzammil Khan and 5 others v. Muhammad Anis and
another 2002 PCr.LJ Peshawar 2072, after noticing the case-law on the subject it was
held that there is no distinction between the acquittal of the accused recorded under
section 245 of the Cr.P.C. or under section 249-A of the Cr.P.C. for the purposes of filing
an appeal under section 417, Cr.P.C. In Ghulam Muhammad v. Additional Sessions Judge
and 3 others 1998 MLD 1605, while taking notice of the case of Muhammad Yasin v.
Muhammad Hanif and others 1997 PCr.LJ 1626, it was held that in case of acquittal
recorded under section 249-A, Cr.P.C. an appeal alone is competent.

4. I have heard the learned counsel for the parties and examined the case-law cited by
both the learned counsel for the parties.

5. The learned Judicial Magistrate accepted the application of the respondents under
section 249-A, Cr.P.C. and discharged the accused. Section 249-A. of the Cr.P.C.
empowers the Magistrate to acquit the accused at any stage of the proceedings.
Power to discharge is not available under section 249-A, Cr.P.C.

6. Acquittal is recorded under section 245 of the Cr.P.C. It provides that the Magistrate
upon taking evidence and examining the accused finds the accused if not guilty, he shall
record an order of acquittal. Section 417, Cr.P.C., provides an appeal in case of acquittal
while section 439 of the Cr.P.C. confers power of revision. In the case of any proceedings
the record of which has been called for by itself or which otherwise comes to its
knowledge, the High Court may, in its discretion, exercise any of the powers conferred
on a Court of appeal by sections 423, 426, 427 and 428 or on a Court by section 338,
and may enhance the sentence.

7. Word discharge is not defined in the Code. One has to look to its dictionary meaning.
Discharge means commitment, or period of confinement, relieve of residual liability
(Concise Oxford Dictionary) and in Chambers English Dictionary Discharge mean to
free from or relieve of a charge of any kind; to set free; to acquit; to dismiss.

8. The word “Acquittal” is defined in Black’s Law Dictionary which means release,
absolution, or discharge from an obligation, liability or engagement. In criminal Law the
legal and formal certification of the innocence of a person who has been charged with
crime; a deliverance or setting free a person from a charge of guilt; finding of not guilty.

Page No. 2 of 3
9. There is a marked difference between discharge and acquittal. Discharge can be on
account of absence of the complainant and not on the merit of the case; accused
discharged on police report under section 173, Cr.P.C. or discharged being declared
innocent by the police are some of the instances.

9-A. In the instant case, the learned Judicial Magistrate though used the word discharge
by accepting the application under section 249-A, of the Cr.P.C. it will be read as
acquittal. As learned Single Judge of this Court, as he then was, in the case of
Muhammad Yasin v. Muhammad Hanif and others 1997 PCr.LJ 1626, found remarkable
difference between the acquittal recorded under section 245, Cr.P.C. and one under
section 249-A, of the Cr.P.C. In his view, if evidence is not recorded and an order of
acquittal is passed under section 249-A, Cr.P.C., it is amenable to the revisional
jurisdiction of the Sessions Judge, but, in case acquittal is recorded after prosecution
evidence and examining of the accused an appeal will lie under section 417, of the
Cr.P.C. I have not been able to persuade myself with the view expressed by the learned
Single Judge in the above case in view of the clear and unambiguous language used in
section 249-A of the Cr.P.C. providing acquittal at any stage of the case, if the charge is
groundless. Even otherwise, acquittal recorded by the competent Court of law on
recording of evidence or without recording of evidence, will not determine the remedy of
revision or appeal, but the same is governed by statutory provisions of law. After
introduction of subsection (2-A) in section 417 of the Cr.P.C. any person aggrieved by
an order of acquittal has been conferred a right to file an appeal against the acquittal.
In presence of remedy by way of appeal, the revision is not competent under section
439(5) of the Cr.P.C.

10. In view of the aforenoted discussion, the revision was not maintainable before the
learned Additional Sessions Judge, who has rightly refused to entertain the same
ending in dismissal. Resultantly, this Constitutional petition is without force and the
same is dismissed.

N.H.Q./M-624/L Petition dismissed.

Page No. 3 of 3
2005 Y L R 829

[Lahore]

Before Muhammad Akhtar Shabbir and Abdul Shakoor Paracha, JJ

KHALID MEHRBAN---Appellant

Versus

JUDICIAL MAGISTRATE, MURREE and another---Respondents

I.C.A. No. 222 in W.P. No.2274 of 2004, heard on 2nd December, 2004.

(a) Criminal Procedure Code (V of 1898)---

----Ss.36, 37, 169, 173---Sending report to Magistrate under S.173, Cr. P. C.--Ordinary
and additional powers of Magistrate---Magistrate enjoyed ordinary powers under S. 36,
Cr. P. C., conferred upon him and specified in the Third Schedule of Cr. P. C. and such
powers were called his ordinary powers---Some additional powers were also conferrable
on a Magistrate on recommendation of High Court under S. 37, Cr. P. C. ---Report under
S.173, Cr. P. C sent by Police to the Magistrate was an administrative order and not a
judicial order---Order on such report passed by Magistrate would be administrative order
when he would concur with or refused to agree with the police report submitted to him
under S.173, Cr. P. C. and. said order would not be judicial one---Magistrate had to pass
speaking order on police report, whether he agreed or disagreed with the same after
examining police diaries and applying his judicial mind to the record produced before
him.

Mirdad Khan v. Zahir Shah 2000 PCr.LJ 1739 and Waqarul Haq alias Mithoo and
another The State PLD 1988 Lah.336 ref.

(b) Criminal Procedure Code (V of 1898)---

----Ss. 169 & 173---Law Reforms Ordinance (XII of 1972), S.3---Intra-Court appeal---
Investigation in case---Sending report under S.173, Cr. P. C. to Magistrate---Police after
reinvestigation found appellant/accused innocent and in report sent to Magistrate under
S.173, Cr. P. C. Police recommended discharge of appellant, but Magistrate declined to
agree with report sent by police and summoned complainant as well as recovery
witnesses who deposed against appellant---Magistrate made detailed inquiry in the
case---Constitutional petition filed against order of Magistrate was dismissed by High
Court with observation that Magistrate had not committed any illegality amenable to
Constitutional jurisdiction of High Court---Validity--Magistrate while disagreeing with
police report sent under S.173, Cr. P. C. and recording evidence of complainant and
recover: witness, had travelled beyond his jurisdiction as Magistrate and assumed the role
of Trial Court in dealing with that--Investigation of a criminal case and its resultant
arrival by police regarding innocence or otherwise of appellant was prerogative of police
over which no other Authority had any control---Trial Court could disagree with opinion
of police and record the evidence on submission of challan by police---Challan, in the
present case, had not been sent to Magistrate, but simple report under S.173, Cr. P. C. was
sent to him praying therein for discharge of accused/appellant---If accused was not
recommended for trial in criminal case, only then report under S.173, Cr. P. C. was to be
submitted without any challan accompanying therewith---High Court (Single Judge)
while passing impugned order had not adverted to that legal aspect of the case
---Intra-Court appeal was accepted and order passed by Single Judge was set aside.

Sardar Muhammad Latif Khan, Khosa for Appellant.

Tanvir Iqbal, A.A.-G. with Ashraf Bajwa, S.-I. for Respondents.

Date of hearing: 2nd December 2004.

JUDGMENT

Page No. 1 of 4
MUHAMMAD AKHTAR SHABBIR, J.---This Intra Court Appeal arises out of the
order, dated 20-10-2004 passed by the learned Single Judge in Chambers of this Court.

2. The facts giving rise to the present appeal are to the effect that on 26-2-2004 on spy
information, a raiding party had been formed and raid was conducted on the restaurant of
the petitioner, being run in the name of "Abshar Hotel" Company Bagh, Murree, and the
appellant allegedly led to the recovery of Charas weighing 1300 grams from his
restaurant. After investigation of the case, he was found guilty of the offence. The
appellant had applied for reinvestigation of the case. Resultantly, D. S. P. (Investigations),
Murree, found the petitioner innocent and recommended his discharge, directed the
S.H.O. concerned to proceed against Mushtaq alias Bhindari, an employee of the
petitioner in the restaurant as, according to his opinion, the Charas recovered was owned
by him. The report under section 173, Cr.P.C. was sent to the learned Judicial Magistrate
Section 30, Murree, who declined to agree with the same. In the meanwhile, the appellant
applied for his post-arrest bail before the learned Additional Sessions Judge, Rawalpindi,
who directed that the matter should be reinvestigated by the S.P. City, Rawalpindi, but the
order of the learned Additional Sessions Judge had been set aside by this Court on
26-4-2004 passed in Writ Petition No.850 of 2004. The appellant challenged the order of
the Magistrate, who declined to concur with the report filed under section 173, Cr.P.C.
submitted by the Police, which was disposed of on 9-6-2004 with the direction to the said
Magistrate to dispose of it in accordance with law within a period of three weeks. In
compliance to the said order, dated 9-6-2004, learned Magistrate vide his order, dated
27-7-2004 disagreed with the police report which has requested for discharge of the
petitioner. The said order was again assailed by the petitioner in Writ Petition No.2274 of
2004 which was dismissed by the learned Single Judge of this Court with the observation
that the learned Magistrate has not committed any illegality amenable to Constitutional
jurisdiction of this Court.

3. Sardar Muhammad Latif Khan Khosa, learned counsel for the appellant contends that
the exercise undertaken by the learned Magistrate regarding summoning the complainant
and the witnesses of recovery was not warranted under law as he could agree or disagree
by assigning his own sufficient reasons.

4. On the other hand, learned Law Officer vehemently opposed the arguments of the
learned counsel for the appellant contending that the Magistrate has passed the order after
summoning both the parties and on the basis of the evidence produced by them.

5. I have heard the learned counsel for the appellant as well as learned Law Officer and
perused the record with their assistance. The controversy revolved in this case is whether
the order passed by the learned Magistrate disagreeing with the Police report submitted
before him under section 173, Cr.P.C. was a legal order or not.

6. On the report under section 173, Cr.P.C. sent by the Police to the Magistrate, the order
passed by the Magistrate was an administrative order and not a judicial one. Reference in
this context can be made to the case of Mirdad Khan v. Zahir Shah (2000 PCr.LJ 1739).
The accused can be discharged if apprehended under section 63, Cr.P.C. which reads as
under:--

"No person who has been arrested by a police officer shall be discharged except
on his own bond, or on bail, or under the special order of a Magistrate. "

7. The Magistrate enjoys ordinary powers under section 36, Cr.P.C. conferred upon him
and specified in the Third Schedule and such powers are called their ordinary powers.
There are some additional powers conferrable on a Magistrate on the recommendation of
the High Court. Section 37, Cr. P. C. says that on the recommendation of the High Court,
the Provincial Government may, in additional to the ordinary powers, invest any
Magistrate with any powers specified in, the Fourth Schedule. In conferring the powers
under the Code, Provincial Government may by order empower persons specially by
name or in virtue of their office or classes of officials generally by their official title and
every such order shall take effect from the date on which it is communicated to the
person so empowered.

8. Section 169 of the Cr.P.C. deals with the release of the accused when evidence
deficient. The provisions of section 169, Cr.P.C. are reproduced as under:--
Page No. 2 of 4
 "If upon an investigation under this Chapter, it appears to the officer-in-charge of
the police station, or to the police officer making the investigation that there is no
sufficient evidence or reasonable ground of suspicion to justify the forwarding of
the accused to a Magistrate, such officer shall, if such person is in custody, release
him on his executing a bond, with or without sureties, as such officer may direct,
to appear, if and when so required, before a Magistrate empowered to take
cognizance of the offence on a police report and to try the accused or send him for
trial. "

9. Section 173, Cr.P.C. deals with the report of the Police Officer, which envisages (1)
every investigation under this Chapter shall be completed without unnecessary delay,
and, as soon as it is completed, the officer-in-charge of the police station shall (through
the Public Prosecutor)-

(a) forward to a Magistrate empowered to take cognizance of the offence on a

police report a report, in the form prescribed by the Provincial Government
setting forth the names of the parties, the nature of the information and the names
of the persons who appear to be acquainted with the circumstances of the case,
and stating whether the accused (if arrested) has been forwarded in custody or has
been released on his bond, and, if so, whether with or without sureties, and

(b) communicate, in such manner as may be prescribed by the Provincial

Government, the action taken by him to the person, if any, by whom the
information relating to the commission of the offence was first given:

Provided that, where investigation is not completed within a period of fourteen

days from the date of recording of the first information report under section 154,
the officer-in-charge of the police station shall, within three days of the expiration
of such period, forward to the Magistrate through the Public Prosecutor, an
interim report in the form prescribed by the Provincial Government stating therein
the result of the investigation made until then and the Court shall commence the
trial on the basis of such interim report, unless, for reasons to be recorded, the
Court decides that the trial should not so commence.

(2) Where a superior officer of police has been appointed under section 158-, the
report shall, in any case in which the Provincial Government by general or special
order so directs, be submitted through that officer, and he may pending the orders
of the Magistrate, direct the officer-incharge of the police station to make further
investigation.

(3) Whenever it appears from a report forwarded under this section that the
accused has been released on his bond, the Magistrate shall make such order for
the discharge of such bond or otherwise as he thinks fit.

(4) ---------------

(5) ---------------"

10. The order on such report passed by the learned Magistrate would be an administrative
order when he concurs with or refuses to agree with the police report submitted to him
under section 173, Cr.P.C. and such order would not be a judicial order as laid down in
the case of Bahadur and another v. The State and another (PLD 1985 Supreme Court (62)
wherein has been observed that Magistrate, even while concurring in cancellation of a
case is required to judicially examine the report submitted under section 173, Cr.P.C. and
this has led to the impression that he must while doing so be acting and functioning as a
Court this obviously is a mistaken impression, the word "discharge" had been used in
section 63(3) and section 173(3) of Cr.P.C., but the word discharge used in both the
sections has been used in different senses in the two contexts and in section 63, Cr.P.C. it
has been used in the sense of releasing the person arrested. But in section 173, Cr.P.C. the
police recommends for discharge of the accused arrested by them. In this context;
reference can be made to a case of Waqarul Haq alias Mithoo and another v. The State
(PLD 1988 Lahore 336). The Magistrate has to pass speaking order on the police report,
whether he agrees or disagrees with the same after examining the police diaries and
applying his judicial mind to the record produced before him.
Page No. 3 of 4
11. In the present case, the Police has submitted its report under section 173, Cr.P.C.
before the Magistrate, which was disposed of vide order, dated 7-4-2004 and the
appellant filed writ petition in this Court and the learned Judge of this Court vide order,
dated 9-6-2004 held that the petitioner may, if so advised, filed fresh application before
the Court who will decide it after hearing the petitioner and by making of his own
inquiry. Thereafter, the subsequent report under section 173, Cr.P.C. was placed before
the learned Magistrate declaring the petitioner as innocent. The Magistrate while passing
the impugned order had summoned the complainant as well as the recovery witnesses,
who deposed against the petitioner that the Charas measuring 1300 grams was recovered
from the possession of the accused/appellant but Khan Muhammad D. S. P. while
appearing in defence deposed that the accused was found innocent. The Magistrate made
a detailed inquiry while passing the impugned order, which was challenged by the
appellant through Writ Petition No. 2274 of 2004. In our view, the Magistrate was not
empowered under the Code of Criminal procedure to make a detailed inquiry, which
would tantamount the trial of the case. The police after investigation found the accused
innocent a sought the discharge of the accused from the bonds and the Magistrate
disagreed with the discharge report submitted by the Police. The Ilaqa Magistrate while
disagreeing with the police report and recording the evidence had travelled beyond his
jurisdiction, which would mean that he assumed the role of the trial Court. The
investigation of a criminal case and its resultant arrival by the police regarding innocence
or otherwise is the prerogative of the police over which no other authority had any
control. All the Magistrate should have insisted upon that the Investigating Officer should
submit its report under section 173, Cr.P.C. incorporating the final opinion of the Police
based upon the evidence collected by it during the investigation. It is the trial Court who
can disagree with the opinion of the police and record the evidence on the submission of
the Challan by the police. But in the instant case, the Challan has not been sent to the
Magistrates rather simple report under section 173, Cr.P.C. was sent to him praying
therein for discharge of the accused. If the accused was not recommended to be tried in a
criminal case only then report under section 173, Cr.P.C. was to be submitted without any
challan accompanying therewith. In this context, reference can be made to the case of
Ahmad Nawaz v. The State (2001 MLD 1330). The learned Single Judge while passing
the impugned order has not adverted to this legal aspect of the case.

12. For the foregoing reasons, we find force in the arguments of the learned counsel for
the appellant and resultantly this I.C.A. is accepted while agreeing with the Police report
and the order, dated 20-10-2004 passed by the learned Single Judge is set aside.

H.B.T./K-76/L Appeal accepted.

Page No. 4 of 4
2004 Y L R 1830

[Lahore]

Before Tassaduq Hussain Jilani and Bashir A. Mujahid, JJ

THE STATE---Appellant

Versus

RASHID AHMAD-----Respondent

Criminal Appeal No.499 of 1999, decided on 7th May, 2003.

Control of Narcotic Substances Ordinance (VI of 1995)-----

----S. 9---Criminal Procedure Code (V of 1898), S.417---Appeal against acquittal--Police

officer prosecution witness had conceded that he did not record receipt of information in
daily Diary of Police Station---D.S.P. who conducted investigation in the case had
declared accused innocent and prepared discharge report of--accused---Statements of two
prosecution it witnesses to the effect that case against accused was found to be false in
more than two investigations had cast a serious doubt on prosecution case--Testimony of
recovery witnesses, was worthy of no credit as they had been making inconsistent
statements during investigation and in the Court---Judgment of acquittal passed by Trial
Court neither was arbitrary nor had resulted in miscarriage of justice to warrant into
reference---Accused who had been acquitted after regular trial, would earn a double
presumption of innocence---Prosecution having failed to rebut said presumption, appeal
against acquittal was dismissed.

Tariq Shamim for Appellant.

Mian Subah Sadiq Wattoo for Respondent.

Date of hearing: 7th May, 2003.

JUDGMENT

TASSADUQ HUSSAIN JILANI, J.---This State appeal is directed against the judgment
dated 22-7-1998 passed by Special Judge vide which having tried the respondent in the
case registered vide F.I.R. No.370 of 1996, Police Station Saddar, under section 9 of
Control of Narcotic Substances Ordinance VI of 1995 on the allegation that on personal
search, he led to recovery of 5 Kg. of Opium. He acquitted them by giving them benefit
of doubt.

2. During trial the prosecution examined four witnesses namely Qasim Ali, H.C. P.W.1,
Amjad Ali, F.C. P.W.2, Naseer Ahmad, Inspector P.W.3 and Muhammad Ashraf Minhas,
S.-I. P.W.4. The accused when examined under section 342, Cr.P.C. denied the
prosecution story and took up the plea as under:--

"Whole of the prosecution story is false and fabricated: Actually huge quantity of
Charas and Opium was recovered from one Fakhar Hussain Nonari a retired Sub
Inspector Police lying in his house situated in city Depalpur. The said narcotic
belonged to S.-I. retired Fakhar Hussain, Ghulab Khan Pathan and Maqsood
Patwari. The local police in connivance with the retired Fakhar Hussain/and other
real culprits falsely planted the Opium on me and some other persons of our
village and let off the actual culprits by accepting huge amount of gratification.
Nothing was recovered from my possession. My relatives agitated the matter and
the present highhandedness of the police before the higher police officers and the
case was reinvestigated by Abbas, D.S.P., C.I.A. Okara, Mr. Faizan Safdar, A.S.P.
City Okara and Ch. Muhammad Muneer, D. S. P. Saddar Okara. All thew officers
declared me innocent and recommended serioi:s departmental action against
Inspector Naseer Ahmad and Muhammad Ashraf, S.-I., P.Ws. The P.Ws. have
deposed against me falsely to prove their false case."

Page No. 1 of 2
3. Learned counsel for the State submitted that the learned trial Court has based its
findings of acquittal merely on the finding of the Investigating Officer and that the
prosecution evidence has not been properly appreciated.

4. Learned counsel for the respondent/accused defended the impugned judgment by

submitting that the prosecution evidence was inconsistent, that no independent witness
was produced with regard to the recovery and that the case was found false during
investigation.

5. We have heard learned counsel for the parties and have gone through the record.

6. The case of the prosecution is that on a source report, a raid was conducted. However,
P.W.3 Naseer Ahmad, Inspector conceded that he did not record the receipt of this
information in the daily diary of the police station. He further conceded that there is
overwriting in the complaint Exh.P.A. He conceded that the respondent had given an
application to S.P., Okara contending that he was innocent, whereafter the investigation
was conducted by Ghulam Abbas, D.S.P. and the latter found the respondent to be
innocent and recommended that he be discharged. He further admitted that the case was
again investigated by the A.S.P., City Okara and he too found the case to be false and
recommended the departmental action against him. P.W.4 Muhammad Ashraf, S.-I.
admitted that Naseer, Inspector P.W.2 declared Fakhar Hussain innocent and prepared his
discharge report, that Fakhar Hussain accused in F.I.R. No.377 of 1996 admitted before
the A.S.P. City, Okara that the whole recovery had taken place from his house but he was
declared innocent as he has paid Rs.1,25,000 to Naseer Ahmad, Inspector. The statements
of P.W.3 and P.W.4 to the effect that the case was found to be false in more than two
investigations cast a serious doubt on the prosecution case. The testimony to be of
recovery witnesses is worthy of no credit as they have been making inconsistent
statements during investigation and in Court. For what has been discussed above, the
impugned judgment of acquittal is neither arbitrary nor as alleged to be a grave
miscarriage of justice to warrant interference. An accused acquitted after regular trial
earns a double presumption of innocence. The prosecution in this case has failed to rebut
this presumption. The appeal having no merit is accordingly dismissed.

H.B.T./S-67/L Appeal dismissed.

Page No. 2 of 2
2004 Y L R 935

[Lahore]

Before Raja Muhammad Sabir and M. Naeemullah Khan Sherwani, JJ

RIFAT IQBAL---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1-B of 2003 in Criminal Appeal No. 173-J of 2002, decided
on 23rd July, 2003.

(a) Appeal (criminal)---

----Appreciation of evidence---Police opinion---Opinion of the Investigating Officer

cannot be given any weight in appeal and is immaterial after the conviction.

Riaz Hussain v. The State 2001 SCMR 1779 ref.

(b) Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), Ss.302(b)/109---Suspension of sentence---

Accused was not present at the place of occurrence and he was found innocent by the
Investigating officers, but the discharge report submitted for approval of the Court was
rejected---Validity---Although the evidence could not be appreciated at such stage, yet the
salient features of the case could not be ignored altogether---Case of co-accused whose
sentence had already been suspended by the High Court was at par with the case of
accused except that he was 80 years old---Other aspects vis-a-vis the allegation of
abetment, award of death sentence to his son, his two brothers and life imprisonment to
the remaining three brothers were similar ---Accused thus in the light of rule of
consistency was also entitled to the concession of bail---Case of accused being almost at
par with that of the aforesaid co-accused, his sentence was suspended and he was
admitted to bail accordingly.

Abdul Aziz Khan Niazi v. The State through Chairman, NAB, Islamabad PLD 2003 SC
668; Adil Bashir v. The State 2003 SCMR 407 and Riaz Hussain v. The State 2001
SCMR 1779 ref.

Ch. Muhammad Yaqoob Sidhu for Petitioner.

Sardar Muhammad Latif Khan Khosa for the Complainant.

S.D. Qureshi for the State.

ORDER

Rifat Iqbal petitioner seeks suspension of his sentence of life imprisonment awarded to
him alongwith his co-accused on four counts under section 302(b) read with section 109,
P.P.C. by the learned Additional Sessions Judge, Gujranwala on 29-5-2002.

2. Briefly the facts of the case are that Nazir Ahmad son of Inayat Ali complainant lodged
F.I.R. at Police Station Tatlay Aali stating therein that he was resident of Mongeke and
was cultivator and his sister Ruqayya Bibi was married with Muhammad Ashraf son of
Muhammad Din, caste Jat Virk; that there was a dispute of his brother-in-law Muhammad
Ashraf with his sanguine brother Muhammad Akbar and other nephews regarding land;
that on 25-4-2000 after receiving message from his brother-in-law Muhammad Ashraf,
complainant went to village Wandalan Virkan in the house of Muhammad Ashraf and
after having dinner went to the roof of Baithak of their house alongwith Muhammad
Aslam brother of Muhammad Ashraf, his brother-in-law and were talking with each
other. He further stated that Muhammad Ashraf and Mst. Ruqayya Bibi also came on the
roof and told them that Adil Shakeel son of Muhammad Aslam and Ijaz Ahmad son of
Muhammad Ashiq had told them that on the same date Muhammad Akbar, Rifat Iqbal
Page No. 1 of 3
(petitioner), Pervaiz Ahmad, Shahzad alias Mithoo, Nisar Ahmad, Muhammad Nawaz,
Iftikhar Ahmad and Jamshed alias Sheedoo accused all residents of Wandalan Virkan
were sitting on their Dera and hatching a conspiracy about the murder of family of
Muhammad Ashraf and that they were very disturbed after hearing this news and for this
reason they have summoned him; that complainant stated before them that Muhammad
Akbar accused and his sons cannot do this cruel act; that he told them that he will talk to
the accused in the morning that his sister and Muhammad Ashraf his brother-in-law went
to the courtyard of their house and lied there with their children while he and Muhammad
Aslam slept on roof of the house; that at about 2-30 a.m. in the night they woke up after
hearing the voice of foot steps, they saw in the courtyard of the house in the light of bulb
that Jamshed accused armed with .30 bore pistol, Shahzad alias Mithu armed with
Bughda, Nisar Ahmad with .12 bore gun entered into the house from the Dera of Rifat
Iqbal accused after scaling over the wall into the house of Muhammad Ashraf; that
Jamshed alias Sheedoo and Nisar Ahmad alongwith their weapons stood on both sides of
cots of Muhammad Ashraf, his wife and his children pointing their arms towards them;
that Shahzad alias Mithu inflicted four Bughda injuries on the person of Muhammad
Ashraf, his head, forehead, face and jaw; that sin the meanwhile his sister woke up, Nisar
Ahmad fired with his .12 bore gun which hit her on her abdomen and shoulders, Shahzad
alias Mithu again inflicted Bughda injuries turn by turn on the person of his sister which
hit on her face, neck and left hands; that Shahzad alias Mithu also inflicted Bughda
injuries on the person of Ayesha Ashraf aged 12/13 years on her neck, there Irfan Ahmad
son of Muhammad Ashralf was trying to get up but Jamshed accused inflicted three fire-
arm injuries with his pistol which hit him on his waist, Nisar Ahmad fired with his gun
which hit on his left hand, then Shahzad alias Mithu inflicted 2/3 injuries with his Bughda
on the person of Irfan on his head, then Shahzad alias Mithu reached near the cot of
Imran son of Muhammad Ashraf and in view of the complainant inflicted 3/4 Bughda
injuries on the head and face of Imran. In the meanwhile Uzma Ashraf and Misbah
Ashraf daughters got up and ran towards the residential room from their cots, then
Shahzad alias Mithu inflicted many l5ughda injuries on the person of Uzma Ashraf which
hit on her chest, back, abdomen and right knee; that she fell in the room after receiving
the injuries while Misbah Ashraf reached in the room and chained the room from inside;
that due to fire and their' noise many persons of the village woke up while Shahzad alias
Mithu and other two accused opened the outer door of the house of Muhammad Ashraf
where Muhammad Nawaz and Iftikhar Ahmad sores of Muhammad Akbar accused armed
with firearm weapons were present; that all the accused went away while firing; that the
and Muhammad Aslam went down from the roof of the house and saw that Muhammad
Ashraf, Ruqayya Bibi, Irfan Ahmad and Uzma Ashraf had died due to the injuries; that
Imran Ahmad and Ayesha Ashraf were grievously injured. The occurrence was witnessed
by the complainant, Muhammad Adam and Misbah Ashraf but due to fear of the accused
they could not go out of their house and early in the morning he sent Imran and Ayesha
injured to Civil Hospital, Kamonke and left Muhammad Aslam with dead-bodies and
reached the police station. He further alleged in the F.I.R. that the occurrence took place
at the instance of Muhammad Akbar, Rifat Iqbal and Pervaiz Ahmad and due to their
conspiracy and abetment alongwith other five accused for the purpose of getting land
from his brother-in-law.

3. During investigation Muhammad Akbar, Rifat Iqbal (petitioner) and Pervaiz Ahmad
who allegedly abetted the co-accused were found innocent. Investigating Officer applied
to the Court for their discharge but Court declined to agree with him. However, on the
basis of statement of Ijaz P.W.9 and Adil Shakeel P.W.10 closely related to the
complainant that they heard the conversation of conspiracy, the trial Court convicted
Muhammad Akbar, Rifat Iqbal and Pervaiz Ahmad under section 302(b), P.P.C. read with
section 109, P.P.C. and sentenced them to imprisonment for life on four counts. Jamshed
son of petitioner, Nisar and Shahzad his brothers were awarded death sentence. His other
brothers, namely, Muhammad Nawaz and Iftikhar Ahmad were sentenced to life
imprisonment. Their appeal against conviction is pending in this Court. Petitioner has
applied for suspension of sentence.

4. Ch. Muhammad Yaqoob Sidhu learned counsel for the petitioner contends that the
petitioner was found innocent during the investigation. Allegation against him, his co-
accused Muhammad Akbar and Pervaiz Ahmad is of abetment. Son of the petitioner`
Jamshed alongwith his brothers Nisar and Shahzad has been awarded death sentence.
Muhammad Nawaz, Iftikhar and Pervaiz Ahmad alongwith his father Muhammad Akbar
Page No. 2 of 3
were sentenced to life imprisonment on four counts. The entire family has been roped by
the complainant in the case. He was neither present at the place of occurrence nor is
attributed any other role except abetment. The allegations against the petitioner and
Muhammad Akbar whose 'sentence has been suspended by this Court on 31-3-2003 are
identical. The said order was challenged by the complainant in the Honourable Supreme
Court through Criminal Petition for Leave to Appeal No.258-L of 2003 but the same was
maintained on 10-6-2003. The rule or consistence demands that his sentence be also
suspended till the disposal of the appeal. He has relied upon Abdul Aziz Khan Niazi v.
The State through Chairman, NAB, Islamabad PLD 2003 Supreme Court 668.

5. Sardar Muhammad Latif Khan Khosa learned counsel for the complainant, on the other
hand, submits that four persons, namely, Muhammad Ashraf, Ruqayya Bibi, Irfan Ahmad
and Uzma Ashraf were brutally murdered by the convicts while Imran Ahmad and Ayesha
Ashraf were grievously injured. Petitioner, his father Muhammad Akbar and his brother
Pervaiz Ahmad are guilty of abetment of aforesaid murders, therefore, the sentence of the
petitioner may not be suspended. He further argued that the merits of the case cannot be
examined by this Court while considering the application for suspension of sentence by
relying upon Adil Bashir v. The State 2003 SCMR 407. The opinion of the Investigating
Officer after recording of conviction is immaterial in view of the law laid down by the
Honourable Supreme Court in Riaz Hussain v. The State 2001 SCMR 1779. He lastly
argued that Muhammad Akbar was granted bail primarily on the consideration of being a
man of 80 years of age, therefore, case of the petitioner is not at par with him.

6. Heard. Record perused. Trial Court relied upon the evidence of P.W.9 and P.W.10 in
convicting the petitioner, Muhammad Akbar and Pervaiz on the charge of abetment. Both
the P.Ws. are closely related to the complainant and deceased. Their evidence was not
relied upon by the Investigating Officer and he declared them innocent. After conviction
the opinion of the Investigating Officer in view of Riaz Hussain's case referred above
cannot be given any weight but the fact remains that case of petitioner and Muhammad
Akbar is at par except the age factor. The alarming facts of the case are that two brothers
of the petitioner have been awarded death sentence and three life imprisonments. His son
Jamshed has also been sentenced to death. Father of petitioner Muhammad Akbar was
also awarded life imprisonment. The entire family was convicted whereas according to
the F.I.R. Jamshed, Nisar and Shahzad caused injuries to the deceased and the P. Ws.
Muhammad Nawaz and Iftikhar were seen at the time; the accused fled away from the
place of occurrence. Muhammad Akbar, Pervaiz and petitioner were not present at the
place of occurrence. All the three were found innocent by three Investigating Officers and
a discharge report was submitted for approval of the Court but the same was declined. We
cannot appreciate the evidence at this stage in view of Adil Bashir's case refereed above
but the salient features of the case cannot be ignored altogether. Muhammad Akbar's case
is at par with the petitioner except that he was aged about 80 years. The other aspects vis-
a-vis the allegation or abetment, award of death sentence to his son Jamshed, his two
brothers and life imprisonment to the remaining three brothers are similar. The
Honourable Supreme Court in the case of Abdul Aziz Khan Niazi v. The State PLD 2003
Supreme Court 668 observed that the case of co-accused with similar allegation stand at
par to each other and that being not distinguishable from the other on merits in the light
of rule of consistency petitioner will also be entitled to the concession or bail. We are of
the considered view that the case of the petitioner is also most at par with that of
Muhammad Akbar whose sentence has been suspended by us and upheld by the
Honourable Supreme Court.

7. In the light of the discussions made above, sentence of the petitioner is suspended
subject to his furnishing bail bonds in the sum of Rs.2,00,000 (rupees two lacs) with one
surety in the like amount to the satisfaction of the trial Court.

N.H.Q./J-100/L Sentence suspended.

Page No. 3 of 3
2004 P Cr. L J 1228

[Lahore]

Before Ch. Iftikhar Hussain, J

SHAKIL HAIDER and 3 others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1477/B of 2004; decided on 5th May, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/324/148/149---Bail, grant of---Further

inquiry ---F.I.R., showed that accused persons in main incident were simply raising
Lalkara and firing in the air---Accused neither had caused any injury nor aimed firing at
anyone and they had also not been attributed any overt act---Accused during investigation
by different officers had been found to be not involved in the matter--Report of
Investigating Officer revealed that complainant had avoided to appear before him and
failed to produce eye-witnesses during investigation and had not cooperated- --Report for
discharge of accused from case prepared by police was not agreed to by the Magistrate
concerned---Police in that report had opined that accused were innocent in the matter and
their names had been placed in Column No.2 of that report---No empty had been
recovered from the spot and even no recovery of crime weapon was effected from any of
them---Opinion of police though was not binding upon the Court, but still it was relevant
to be taken into consideration while deciding question of grant or otherwise of
bail---Finding of innocence of accused was based upon material available on the record
and it was not without any basis---No reason existed to believe that accused had
committed a non-bailable offence and there was a ground for further inquiry into guilt of
accused--Case of accused, in circumstances was covered under S.497(2), Cr.P.C:---Trial
of case had not commenced---Accused were found entitled to bail, in circumstances.

Abdul Rehman v. Javed and 2 others 2002 SCMR 1415; Dr. Muhammad Aslam v. The
State 1993 SCMR 2288; Nek Muhammad v. The State 1991 SCMR 1630 ref.

Munir Ahmad Bhatti for Petitioners.

Bashir Ahmad Gill for the State.

Ehtesham Qadir Shah for the Complainant.

ORDER

Petitioners Shakil Haider, Ansar, Muhammad Zafar and Razaq alias Zakir through the
instant petition have sought for after arrest bail in case F.I.R. No.335, dated 7-9-2003
under sections 302/324/148/149, P.P.C. registered with Police Station Jhaal Chakian,
District Sargodha. Later on, the police has added the section 109, P.P.C. in the same.

2. The precise allegation against them is that they on 7-9-2003 at about 3-30 p.m. near
Ashraf Hospital, when Aqeel Haider was armed with .12 bore pump action, Zafar with
rifle, Rlazzaq alias Zakir with rifle, Ansar Hayat with .12 bore single barrel gun and one
Sikandar Hayat with .12 bore double barrel gun have waylaid the complainant party
while they were on their way to their house from Mauza Lak on motorcycle and two cars.
Aqeel Haider fired at Aamar Sohail, the maternal-grandson of the complainant, which hit
on his both arms. They thereafter, got them down forcibly from the vehicles. Aqeel
Haider fired second shot at Muhammad Ilyas, which it him at the right side of his chest
and the third fire shot at Aamir Sohail hitting on his left thigh. In the meanwhile, a white
colour Dalla of double cabin came there. Ansar Hayat, empty handed, Shakeel Haider and
Muhammad Afzal with lethal alighted down from the same. Nasar Hayat took his
double-barrel licensed gun with the bag containing cartridges from his car and they
resorted to ariel firing and remained raising Lalkaras that if anybody came near them,
would be killed. Then, Sikandar Hayat fired two shots consecutively at Muhammad
Page No. 1 of 3
Suleman, the son of the complainant, which hit on the front of his neck and left elbow.
Muhammad Ashraf, who was in the car was also injured during the same. The accused,
thereafter, went away brandishing their weapons. Muhammad Akram, Muhammad Aslam
and Muhammad Khan were attracted to the spot and they witnessed the occurrence. The
injured were taken to the Civil Hospital, Sargodha where Muhammad Ilyas succumbed to
his injuries, while Muhammad Suleman was referred to Lahore due to his precarious
condition. Aamir Sohail and Ashraf injured were admitted in the hospital.

3. It has been argued on behalf of the petitioners that they have falsely been roped in with
mala fide intention on the part of the complainant party; that no injury to anyone has been
attributed to them; that in three investigations conducted by different Police Officers up
to the rank of the S.P., they were found innocent in the matter; that in the investigation
conducted by the S.P. (Investigation) Sargodha, the complainant neither himself appeared
nor he produced his eye-witnesses before him; that ultimately the report for their
discharge from the case was prepared though the same was not agreed to by the learned
Magistrate concerned and it was so erroneously; that their names were mentioned in the
Column No.2 of the report under section 173, Cr.P.C. submitted, in the Court; that it has
clearly been mentioned. in the same that they were absolutely innocent in the matter; that
no crime-empty was recovered from the spot and even no weapon of offence from them
and so their case is covered under subsection (2) of section 497, Cr.P.C. calling for further
inquiry into their guilt; that they are behind the bars and previous non-convicts; and that
their trial has not yet commenced and even otherwise the commencement of trial is no
bar to grant of bail to them.

4. Conversely, the learned counsel for the State assisted by the learned counsel for the
complainant though has opposed the petition but has conceded that the petitioners during
the investigation have been found innocent.

5. However, the learned counsel for the complainant has contended that the ipsi dixit of
the police is not binding upon the Court and the same, even otherwise, is not based upon
the sound material on the record; and that they are persons of not good character.

6. I have carefully considered the submissions made by both the sides with the help of the
available record.

7. According to the F.I.R., the petitioners in the main incident on 7-9-2003 had remained
raising Lalkara and firing in the air. According to the same, they neither had caused injury
to anyone nor aimed firing at anyone. They according to the same in the incident on
26-8-2003, 29-8-2003, as mentioned therein have also not been specially attributed' any
overt act.

8. They admittedly during the investigation by the different Police Officers like Asmat
Ullah S.-I., Waqar-ud-Din Haider, A.S.P. Sargodha and S.P. (Investigation), Sargodha
have been found to be not involved in the matter.

9. It has been found from the copy of the request prepared by the S.P. (Investigation),
Sargodha on 14-1-2004 that the complainant had avoided to appear before him as well as
to produce eye-witnesses before him during the investigation. He has mentioned that he
has not B cooperated with him during the investigation.

10. It has also been borne out from the police record that the report for their discharge
from the case was prepared though the same was not agreed to by the learned Magistrate
concerned. The police in the same have opined that they were innocent in the matter.

11. In the incomplete report under section 173, Cr.P.C. it has been mentioned that they are
absolutely innocent in this case. Their names have been placed in Column No.2 of that
report.

12. Furthermore, admittedly no empty of their alleged weapons has been recovered form
the spot. Even, no recovery of crime weapon was effected from any of them.

13. It may be mentioned here that though the opinion of the police is not binding upon
this Court but still it is relevant circumstance to be taken into consideration while
deciding the question of grant or otherwise of bail.
Page No. 2 of 3
14. It may also be mentioned here that the finding of their innocence is based upon the
material available on the record and it is not without any basis.

15. In these circumstances, there is no reason to believe that they have committed a
non-bailable offence and rather there is ground for further inquiry into their guilt. Their
case, therefore, is covered under subsection (2) of section 497, Cr.P.C.

16. It has not been denied by the learned State or complainant's counsel that their trial as
yet has not commenced.

17. In these circumstances, I find that they are entitled to bail. In this regard reliance is
placed upon the cases of Abdul Rehman v. Javed and 2 others 2002 SCMR 1415, Dr.
Muhammad Aslant. v. The State 1993 SCMR 2288 and Nek Muhammad v. The State
1991 SCMR 1630.

18. They are behind the bars and admittedly previous non-convict.

19. The petition, therefore, is accepted and they are admitted to bail subject to their
furnishing bail bonds in the sum of Rs.1,00,000 (Rupees one lac) each with one surety
each in the like amount to the satisfaction of the learned trial Court.

H.B.T./S-91/L Bail granted.

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